EXHIBIT 10.5
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LEASE
ARTICLE I: Reference Data
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1.1 Subjects Referred To. Each reference in this Lease to any of the
following subjects shall be construed to incorporate the data stated for that
subject in this Section 1.1.
Date of this Lease: February 1, 1995
Premises: 36,166 square feet in the building ("Building") at 000
Xxxxxxx Xxxx, Xxxxxxxxx, as shown on the Plan attached
hereto as Exhibit A, together with the right to use, in
common with others entitled thereto, the Parking Spaces
(as defined below) access drives, sidewalks, lobbies,
lavatories and elevators serving the Building
Landlord: Wang Laboratories, Inc.
Original Address One Industrial Avenue
of Landlord: Xxxxxx, XX 00000
Attn: General Counsel
with a copy to:
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Corporate Real Estate
Landlord's Construction
Representative: Xxxxxxx Xxxxxx
Tenant: Peritus Software Services, Inc.
Original Address 000 Xxxxxxxxx Xxxxxxxx
of Tenant: Xxxxxxxxxx, XX 00000
Attn: Controller
Tenant's Construction Xxxxx Xxxxx
Representative:
Term: 4 years
Delivery Date: January 23, 1995
Annual Fixed Rent Rate: $469,435.00 ($12.98 per square foot)
Monthly Rent Payment: $39,119.58 - $252 = $37,867
Includes 12 months of furniture lease that is directed
as capital (105,232/7)=$75,033 yr. or $1,253 a month
Permitted Uses: general office and computer software research and
development
Comprehensive General $2,000,000.00 combined single limit
Liability Insurance
Limit:
Parking Spaces: 100 parking spaces, in common with others entitled to
use the same, located in the parking lot serving the
Building; included in the 100 parking spaces are the
parking spaces located in front of the connector
portion of Building, as to which Tenant shall have sole
and exclusive use
1.2 Exhibits. The Exhibits listed below in this section are incorporated
in this Lease by reference and are to be construed as a part of this Lease:
EXHIBIT A. Plan showing the Premises
EXHIBIT B. Description of Landlord's Work.
EXHIBIT C. Description of Tenant's Work.
EXHIBIT D. Landlord's Services.
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1.3 Table of Contents
ARTICLE I: Reference Data
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1.1 Subjects Referred To............................................ 1
1.2 Exhibits........................................................ 2
1.3 Table of Contents............................................... 3
ARTICLE II: Premises and Term
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2.1 Premises........................................................ 5
2.2 Term............................................................ 5
ARTICLE III: Improvements
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3.1 Performance of Work and Approval of Landlord's Work............. 5
3.2 Pre-Commencement Work by Tenant................................. 6
3.3 Acceptance of Premises.......................................... 6
3.4 Construction Representatives.................................... 7
3.5 Landlord's Guarantee of Construction............................ 7
3.6 Acceptance of Premises.......................................... 7
ARTICLE IV: Rent
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4.1 The Fixed Rent.................................................. 7
4.2 Additional Rent................................................. 8
4.3 Late Payment of Rent............................................ 8
ARTICLE V: Tenant's Additional Covenants
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5.1 Affirmative Covenants........................................... 8
5.1.1 Perform Obligations............................................. 8
5.1.2 Use............................................................. 8
5.1.3 Repair and Maintenance.......................................... 8
5.1.4 Compliance with Law............................................. 9
5.1.5 Tenant's Work................................................... 9
5.1.6 Indemnity....................................................... 10
5.1.7 Landlord's Right to Enter....................................... 10
5.1.8 Personal Property at Tenant's Risk.............................. 10
5.1.9 Payment of Landlord's Cost of Curing Default.................... 10
5.1.10 Yield Up........................................................ 11
5.1.11 Estoppel Certificate............................................ 11
5.1.12 Landlord's Expenses Re Consents................................. 12
5.1.13 Financial Statements............................................ 12
5.1.14 Insurance....................................................... 12
5.2 Negative Covenants.............................................. 14
5.2.1 Assignment and Subletting....................................... 14
5.2.2 Overloading and Nuisance........................................ 16
5.2.3 Installation, Alterations or Additions.......................... 16
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ARTICLE VI: Casualty or Taking
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6.1 Termination Rights.............................................. 16
6.2 Award........................................................... 18
ARTICLE VII: Defaults
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7.1 Events of Default............................................... 18
7.2 Remedies........................................................ 19
7.3 Remedies Cumulative............................................. 20
7.4 Landlord's Right to Cure Defaults............................... 20
7.5 Effect of Waivers of Default.................................... 21
7.6 No Accord and Satisfaction...................................... 21
ARTICLE VIII: Mortgages
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8.1 Rights of Mortgage Holders...................................... 21
8.2 Lease Superior or Subordinate to Mortgages...................... 22
ARTICLE IX: Miscellaneous Provisions
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9.1 Notices from One Party to the Other............................. 23
9.2 Quiet Enjoyment................................................. 23
9.3 Lease not to be Recorded........................................ 23
9.4 Bind and Inure.................................................. 24
9.5 Acts of God..................................................... 24
9.6 Landlord's Default.............................................. 24
9.7 Brokerage....................................................... 25
9.8 Applicable Law and Construction................................. 25
9.8.1 Applicable Law.................................................. 25
9.8.2 No Other Agreement.............................................. 25
9.8.3 No Representations by Landlord.................................. 26
9.8.4 Titles.......................................................... 26
9.8.5 "Landlord" and "Tenant"......................................... 26
9.9 Submission not an Offer......................................... 26
9.10 Signs........................................................... 26
9.11 Costs and Expenses of Enforcement............................... 27
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ARTICLE II: Premises and Term
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2.1 Premises. Landlord hereby leases and demises to Tenant and Tenant
hereby leases from Landlord, subject to and with the benefit of the terms,
covenants, conditions and provisions of this Lease, the Premises.
2.2 Term. TO HAVE AND TO HOLD for a term beginning on the earlier of (a)
the expiration of five days after Tenant has received notice from Landlord that
the work to be performed by Landlord pursuant to Exhibit B has been
substantially completed or (b) the opening by Tenant of its business in the
Premises, (the "Commencement Date") and continuing for the Term, unless sooner
terminated as hereinafter provided. The term "substantially completed" as used
herein shall mean that the work to be performed by Landlord pursuant to Exhibit
B has been completed with the exception of: (a) minor items which can be fully
completed without material interference with the use of the Premises by Tenant
for the Permitted Uses, (b) other items which because of the season or weather
or the nature of the item are not practicable to do at the time and (c) items
which are incomplete because of Tenant Delays, which shall mean (i) the Tenant's
failure to timely submit or approve plans hereunder or (ii) the Landlord's
inability to timely obtain or install materials, fixtures or equipment requested
by the Tenant which are not included in the work to be performed by Landlord
pursuant to Exhibit B or (iii) change orders submitted by Tenant for further
alterations or additions. When the dates of the beginning and end of the Term
have been determined such dates shall be evidenced by a document in form for
recording executed by Landlord and Tenant and delivered each to the other.
ARTICLE III: Improvements
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3.1 Performance of Work and Approval of Landlord's Work. Landlord shall
cause to be performed the work required by Exhibit B ("Landlord's Work"). All
such work shall be done in a good and workmanlike manner employing good
materials and so as to conform to all applicable governmental laws, ordinances
and regulations. Tenant agrees that Landlord may make any changes in such work
which may become reasonably necessary, other than substantial changes, without
approval of Tenant, provided notice is promptly given to Tenant; and Landlord
may make substantial changes in such work, with the written approval of Tenant,
which Tenant agrees will not be unreasonably withheld. Landlord's Work shall be
substantially completed by the Delivery Date, subject to the provisions of
Section 9.5 hereof. Landlord agrees that as of the Commencement Date the access
and other common areas appurtenant to the Premises will be in compliance with
the American's with Disabilities Act and Tenant agrees that modifications to the
Premises that may be required under the American's with
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Disabilities Act because of the disability of a particular employee of Tenant
shall be made by Tenant at its expense.
Landlord and Tenant acknowledge that included in the Landlord's Work is the
installation of certain Xxxxxx Xxxxxx Systems Furniture (the "Xxxxxx
Furniture"). Landlord has purchased the Xxxxxx Furniture and amortized the cost
of the same over seven years so that the annual rent for each year of the Term
includes 14.29% of the partition cost. Accordingly, at the expiration of the
Term, and provided no Event of Default has occurred that has not been cured at
the expiration of the Term, Landlord agrees Tenant may either (i) remove 57
percent of Xxxxxx Furniture from the Premises, or (ii) pay Landlord $105,232.00,
which will be the remaining unamortized cost of the Xxxxxx Furniture at the end
of the Term, and thereafter remove all of the Xxxxxx Furniture, in either case
such removal to be completed not more than 30 days prior to the expiration of
the Term and the Premises are to be otherwise in the condition required by
Section 5.1.10.
3.2 Pre-Commencement Work by Tenant. Tenant agrees that it will,
proceeding with all reasonable dispatch from the time it receives from Landlord
a notice that the Premises are ready for work by Tenant, perform the work to be
done by Tenant so as to ready the Premises for the opening by Tenant of its
business in the Premises, including, without limitation, the work specified in
Exhibit C, provided that no other work shall be done or fixtures or equipment
installed by Tenant except with the prior written approval of Landlord and
provided further that all work by Tenant shall be done in accordance with
Section 5.1.5.
During the period of occupancy of the Premises by Tenant prior to the
Commencement Date, all provisions of this Lease except the provisions relating
to the payment of rent shall apply to the extent that said provisions may be
made applicable to said period.
3.3 Acceptance of the Premises. Tenant or its representatives may enter
upon the Premises during the progress of Landlord's Work to inspect the progress
thereof and to determine if the work is being performed in accordance with the
requirements of Section 3.1. Tenant shall promptly give to Landlord notices of
any alleged failure by Landlord to comply with those requirements.
Landlord's Work shall be deemed approved by Tenant when Tenant commences
occupancy of the Premises for business purposes except for items of Landlord's
Work which are uncompleted or do not conform to Exhibit B and as to which Tenant
shall, in either case, have given notice to Landlord prior to such commencement
of occupancy. If Tenant shall not have commenced occupancy of the Premises for
business purposes within 30 days after the
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Commencement Date, a certificate of completion by a licensed architect or
registered engineer shall be conclusive evidence that Landlord's Work has been
completed except for items stated in such certificate to be incomplete or not in
conformity with Exhibit B.
3.4 Construction Representatives. Each party authorizes the other to rely
in connection with plans and construction upon approval and other actions on the
party's behalf by any Construction Representative of the party named in Section
1.1 or any person hereafter designated in substitution or addition by notice to
the party relying.
3.5 Landlord's Guarantee of Construction. Landlord agrees to correct any
defects due to faulty workmanship or materials in Landlord's Work, provided
Tenant shall have given written notice of such defects to Landlord prior to the
first anniversary of the Commencement Date. Except for the Landlord's Work, the
Premises are leased to Tenant in "AS IS" and "WHERE IS" condition, without
representation or warranty of any kind.
3.6 Repair and Maintenance. Except as otherwise provided in Section 3.5
and Article VI, Landlord shall keep the exterior of the Premises, the roof and
structural components of the Building, and all heating, plumbing, hot water,
ventilating, electrical, air-conditioning, security, alarm, elevator, mechanical
and other fixtures and equipment now or hereafter on the Premises in good order,
condition and repair and in at least as good order, condition and repair as they
are in on the Commencement Date or may be put in during the Term, reasonable use
and wear only excepted; Landlord shall maintain in good condition all lawns and
planted areas and keep in good repair and clean and neat and free of snow and
ice all surfaced roadways, walks, and parking and loading areas; Landlord shall
provide the services set forth in Exhibit D. Landlord shall not be liable for
any interruption or failure in the supply of any utility service to the Premises
for any reason other than for nonpayment of utilities, and no rent shall be
abated on account thereof, and no such interruption shall give rise to a claim
by Tenant of actual or constructive eviction, but Landlord agrees to use
reasonable efforts to minimize any such interruptions that are within the
control of Landlord.
ARTICLE IV: Rent
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4.1 The Fixed Rent. Tenant covenants and agrees to pay rent to Landlord
at the Original Address of Landlord or at such other place or to such other
person or entity as Landlord may by notice to Tenant from time to time direct,
at the Annual Fixed Rent Rate, in equal installments of 1/12th of the Annual
Fixed Rent Rate in advance on the first day of each calendar month included in
the Term; and for any portion of a calendar month at
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the beginning or end of the Term, at that rate payable in advance for such
portion.
4.2 Additional Rent. Any and all other amounts to be paid by Tenant to
Landlord shall be paid as additional rent at the time specified herein
("Additional Rent"). This Lease is a gross lease, and Tenant shall not be
obligated to pay any charge or bear any expense whatsoever against or with
respect to the Premises except to the extent hereinafter provided. All charges
for real estate taxes, cleaning, snow plowing, and utilities (except for
telephone, which shall be paid by Tenant) are included in the rent and shall be
paid by Landlord when due. The rent payable hereunder shall not be subject to
any reduction or offset whatsoever on account of any such charge or otherwise
except as hereinafter provided.
4.3 Late Payment of Rent. If any installment of Fixed Rent or payment of
Additional Rent is paid after the date the same was due, it shall bear interest
from the due date at the prime commercial rate of The First National Bank of
Boston, as it may be adjusted from time to time, plus one percent per annum, or,
in the event of Tenant's default under clauses (b) through (f) inclusive of
Section 7.1, plus two percent per annum, but in no event more than the maximum
rate of interest allowed by law, the payment of which shall be Additional Rent.
ARTICLE V: Tenant's Additional Covenants
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5.1 Affirmative Covenants. Tenant covenants at its sole expense at all
times during the Term and for such prior or subsequent time as Tenant occupies
the Premises or any part thereof:
5.1.1 Perform Obligations. To perform promptly all of the obligations of
Tenant set forth in this Lease; and to pay when due the Fixed Rent and
Additional Rent and all charges, rates and other sums which by the terms of this
Lease are to be paid by Tenant.
5.1.2 Use. To use the Premises only for the Permitted Uses, and from time
to time to procure all licenses and permits necessary therefor at Tenant's sole
expense. Landlord agrees to reasonably cooperate with Tenant, at Tenants
expense, in obtaining such licenses and permits.
5.1.3 Repair and Maintenance. Except as otherwise provided in Section 3.5
and Article VI, to keep the Premises in good order, condition and repair and in
at least as good order, condition and repair as they are in on the Commencement
Date or may be put in during the Term, and suitable for suburban office use,
reasonable use and wear only excepted.
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5.1.4 Compliance with Law. To make all repairs, alterations, additions or
replacements to the Premises required by any law or ordinance or any order or
regulation of any public authority, except that any such repairs, alterations,
additions or replacements that are so required to the HVAC or other Building
systems, structural portions of the Building, or other items required to be
maintained by Landlord hereunder shall be made by Landlord; to keep the Premises
equipped with all safety equipment so required, except for equipment required to
be maintained by Landlord hereunder; to pay all municipal, county, or state
taxes assessed against the leasehold interest hereunder, or against personal
property of any kind on or about the Premises; and to comply with the orders,
regulations, variances, licenses and permits of or granted by governmental
authorities with respect to zoning, building, fire, health and other codes,
regulations, ordinances or laws applicable to the Premises, and the condition,
use or occupancy thereof.
5.1.5 Tenant's Work. To procure at Tenant's sole expense all necessary
permits and licenses before undertaking any work on the Premises, provided that
Landlord agrees to reasonably cooperate with Tenant, at Tenants expense, in
obtaining such licenses and permits; to do all such work in compliance with the
applicable provisions of Sections 3.2 and 5.2.3 hereof; to do all such work in a
good and workmanlike manner employing materials of good quality and so as to
conform with all applicable zoning, building, fire, health and other codes,
regulations, ordinances and laws; to furnish to Landlord prior to the
commencement of any such work a bond or other reasonable security acceptable to
Landlord assuring that any work commenced by Tenant will be completed in
accordance with the specifications set forth in Exhibit C or otherwise approved
in writing by Landlord, whichever may be applicable, and that no liens for labor
or materials will attach to the Premises with respect to any such work; to pay
promptly when due the entire cost of any work on the Premises undertaken by
Tenant so that the Premises shall at all times be free of liens for labor and
materials; to employ for such work one or more responsible contractors whose
labor will work without interference with other labor working on the Premises;
to require such contractors employed by Tenant to carry workmen's compensation
insurance in accordance with statutory requirements and comprehensive public
liability insurance covering such contractors on or about the Premises in
amounts that at least equal the limits set forth in Section 1.1 and to submit
certificates evidencing such coverage to Landlord prior to the commencement of
such work; and to save Landlord harmless and indemnified from all injury, loss,
claims or damage to any person or property occasioned by or growing out of such
work.
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5.1.6 Indemnity. Tenant shall defend, with counsel approved by Landlord,
all actions, against Landlord, any partner, trustee, stockholder, officer,
director, employee, beneficiary or mortgagee of Landlord (herein, "Indemnified
Parties"), with respect to, and shall pay, protect, indemnify and save harmless,
to the extent permitted by law, all Indemnified Parties from and against, any
and all liabilities, losses, damages, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, suits, claims, demands or
judgments of any nature arising from (i) injury to or death of any person, or
damage to or loss of property, on or about the Premises or connected with the
use, condition or occupancy of any thereof except to the extent caused by the
gross negligence, negligence or intentional misconduct of Landlord, (ii)
violation by Tenant of this Lease, (iii) any act, fault, omission, or other
misconduct of Tenant or its agents, contractors, licensees, sublessees or
invitees, or (iv) any contest initiated by Tenant referred to in Section 5.1.4.
5.1.7 Landlord's Right to Enter. To permit Landlord and its agents to
enter the Premises at reasonable times to examine the Premises, to make such
repairs and replacements as Landlord is required to make hereunder or that
Landlord elects to make in the absence of any such requirement, and to show the
Premises to prospective purchasers and lenders, and, during the last six months
of the Term, to show the Premises to prospective Tenants and to keep affixed in
suitable places notices of availability of the Premises.
5.1.8 Personal Property at Tenant's Risk. All of the furnishings,
fixtures, equipment, effects and property of every kind, nature and description
of Tenant and of all persons claiming by, through or under Tenant which, during
the continuance of this Lease or any occupancy of the Premises by Tenant or
anyone claiming under Tenant, may be on the Premises, shall be at the sole risk
and hazard of Tenant and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by the leakage or bursting of water
pipes, steam pipes, or other pipes, by theft or from any other cause, no part of
said loss or damage is to be charged to or to be borne by Landlord, except that
Landlord shall in no event be indemnified or held harmless or exonerated from
any liability to Tenant or to any other person for any injury, loss, damage or
liability to the extent prohibited by law or caused by Landlord's negligence,
gross negligence, or intentional misconduct.
5.1.9 Payment of Landlord's Cost of Curing Default. To pay on demand
Landlord's expenses, including reasonable attorneys' fees, incurred in curing
any default by Tenant under this Lease as provided in Section 7.4.
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5.1.10 Yield Up. At the expiration of the Term or earlier termination of
this Lease: to surrender all keys to the Premises, to remove all furnishings,
fixtures, equipment and other personal property now or hereafter located in the
Premises, purchased or leased by Tenant with its own funds, which are not
affixed to the Building or Land or which Landlord has agreed in writing that
Tenant may remove at the expiration of the Term, to remove such installations
made by Tenant as Landlord may request and all Tenant's signs wherever located,
to repair all damage caused by such removal and to yield up the Premises
(including all installations and improvements made by Tenant, except for trade
fixtures, and such of said installations or improvements as Landlord shall
request Tenant to remove), broom-clean and in the same good order and repair in
which Tenant is obliged to keep and maintain the Premises by the provisions of
this Lease. Any property not so removed shall be deemed abandoned and may be
retained by Landlord or may be removed and disposed of by Landlord in such
manner as Landlord shall determine and Tenant shall pay Landlord the entire cost
and expense incurred by Landlord in effecting such removal and disposition and
in making any incidental repairs and replacements to the Premises less the net
value, if any, realized by Landlord by the sale of any such abandoned Property.
For each day after the expiration of the Term, or the earlier termination of
this Lease, and prior to Tenant's performance of its obligation to yield up the
Premises under this Section 5.1.10, Tenant shall pay to Landlord as rent an
amount equal to twice the Fixed Rent computed on a daily basis, together with
all Additional Rent payable with respect to each such day. Tenant shall further
indemnify Landlord against all loss, cost and damage resulting from Tenant's
delay in surrendering the Premises as above provided.
5.1.11 Estoppel Certificate. Upon not less than 15 days' prior notice by
Landlord, to execute, acknowledge and deliver to Landlord a statement in
writing, addressed to such party as Landlord shall designate in its notice to
Tenant, certifying that this Lease is unmodified and in full force and effect
and that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Fixed Rent and Additional Rent and any other charges and
to perform its other covenants under this Lease (or, if there have been any
modifications that the same is in full force and effect as modified and stating
the modifications and, if there are any defenses, offsets or counterclaims,
setting them forth in reasonable detail), the dates to which the Fixed Rent and
Additional Rent and other charges have been paid and a statement that, to the
best of Tenant's knowledge, Landlord is not in default hereunder (or if in
default, the nature of such default, in reasonable detail). Any such statement
delivered pursuant to this Section 5.1.11 may be relied upon by any prospective
purchaser or mortgagee of the Premises, or any prospective assignee of any such
mortgagee.
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5.1.12 Landlord's Expenses Re Consents. To reimburse Landlord promptly on
demand for all reasonable legal expenses incurred by Landlord in connection with
all requests by Tenant for consent or approval hereunder; and Landlord agrees to
reimburse Tenant promptly on demand for all reasonable legal expenses incurred
by Tenant in connection with all requests by Landlord for consent or approval
hereunder.
5.1.13 Financial Statements. Tenant shall furnish to Landlord and to any
holder of a mortgage on the Premises as Landlord may designate by notice to
Tenant, within 120 days after each full or partial fiscal year of operation on
the Premises, a current balance sheet and an annual operating statement, in form
and detail satisfactory to Landlord and to any such holder of a mortgage,
prepared by a certified public accountant acceptable to Landlord and to any such
holder of a mortgage. Landlord shall not provide such statements to any party
other than Landlord's counsel, mortgagees or prospective mortgagees, and other
parties on a need to know basis.
5.1.14 Insurance. To carry the following insurance at all times during the
Term of this Lease:
Commercial general liability insurance, including contractual liability
and Host Liquor liability insurance indemnifying Landlord and Tenant against all
claims and demands for any injury to person or property which may be claimed to
have occurred on or about the Premises or connected with the use, condition or
occupancy of any thereof, with combined single limit coverage at least equal to
the limits set forth in Section 1.1, or such higher limits as Landlord may
reasonably require; and
workers' compensation insurance with statutory limits covering all of
Tenant's employees working on the Premises.
During the Term if any construction, renovation, Building improvements or
alterations are performed on the Premises by or on behalf of Tenant then Tenant
shall provide, prior to the commencement of any such activity, "all physical
loss" builder's risk insurance based on a completed value form, on all work
being performed on the Premises, in such amounts as Landlord may reasonably
require to afford one hundred percent (100%) coverage against loss, and owner's
contingent or protective liability insurance, covering claims not covered by or
under the terms of the above-mentioned commercial general liability insurance,
with combined single limit coverage at least equal to the limits set forth in
Section 1.1, or such higher limits as Landlord may reasonably require;
and workers' compensation insurance covering all persons working on the
job site or in connection with such construction.
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All policies required under this Section shall be obtained from responsible
companies qualified to do business in the state in which the Premises are
located and in good standing therein, which companies and the amount of
insurance allocated thereto shall be subject to Landlord's approval. Tenant
agrees to furnish Landlord certificates of insurance (and copies of policies if
required by any of Landlord's mortgagees) for all such insurance prior to the
beginning of the Term hereof and of each renewal policy at least 30 days prior
to the expiration of the policy it renews. Each such policy shall be non-
cancelable with respect to the interest of Landlord and the holders of any
mortgages on the Premises without at least 30 days' prior written notice
thereto, except that required notice period shall be 20 days with respect to
workers' compensation insurance. In the event provision for any such insurance
is to be by a blanket insurance policy, the policy shall allocate a specific
amount of coverage to the Premises, which allocation shall be sufficient in
amount to satisfy the requirements of this Section.
All insurance which is carried by either party with respect to the Premises
or to furniture, furnishings, fixtures or equipment therein or alterations or
improvements thereto, whether or not required, shall include provisions which
either designate the other party as one of the insured or deny to the insurer
acquisition by subrogation of rights of recovery against the other party to the
extent such rights have been waived by the insured party prior to occurrence of
loss or injury, insofar as, and to the extent that such provisions may be
effective without making it impossible to obtain insurance coverage from
responsible companies qualified to do business in the state in which the
Premises are located (even though extra premium may result therefrom). In the
event that extra premium is payable by either party as a result of this
provision, the other party shall imburse the party paying such premium the
amount of such extra premium. If at the request of one party, this
nonsubrogation provision is waived as to such party, then the obligation of
reimbursement by such party shall cease for such period of time as such waiver
shall be affective, but nothing contained in this Section shall derogate from or
otherwise affect releases elsewhere herein contained of either party for claims.
Each party shall be entitled to have duplicates or certificates of any policies
containing such provisions. Each party hereby waives all rights of recovery
against the other for loss or injury against which the waiving party is
protected by insurance containing said nonsubrogation provisions, reserving,
however, any rights with respect to any excess of loss or injury over the amount
recovered by such insurance. Tenant shall not acquire as insured under any
insurance carried on the Premises any right to participate in the adjustment of
loss or to receive insurance proceeds and agrees upon request promptly to
endorse and deliver to Landlord any checks or other instruments in payment of
loss in which Tenant is named as payee.
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5.2 Negative Covenants. Tenant covenants at all times during the Term and
for such further time as Tenant occupies the Premises or any part thereof:
5.2.1 Assignment and Subletting. Not to assign, transfer, mortgage or
pledge this Lease or to grant a security interest in Tenant's rights hereunder,
or to sublease (which term shall be deemed to include the granting of
concessions and licenses and the like) or permit anyone other than Tenant to
occupy all or any part of the Premises or suffer or permit this Lease or the
leasehold interest hereby created or any other rights arising under this Lease
to be assigned, transferred or encumbered, in whole or in part, whether
voluntarily, involuntarily or by operation of law, unless, in each instance (i)
the prior written consent of Landlord thereto shall have been obtained, (ii) any
defaults then existing with respect to the obligations of Tenant under this
Lease shall have been cured, and (iii) in the case of a proposed assignment,
sublease or occupancy by another, the proposed assignee, sublessee, or occupant
is qualified to do business in the state in which the Premises are located and
such assignee, sublessee, or occupant executes and delivers to Landlord an
agreement satisfactory to Landlord by which such assignee, sublessee or occupant
shall be bound by and shall assume all the obligations of this Lease relating to
the portion or all of the Premises acquired by such assignee, sublessee or
occupant. Tenant may assign this Lease or sublet any portion or all of the
Premises to any corporation, partnership, trust, association or other business
or organization (x) directly or indirectly controlling and beneficially owning
Tenant, (y) directly or indirectly controlled by and beneficially owned by
Tenant, or to any successor of Tenant by merger, consolidation or acquisition of
substantially all of the assets of Tenant, without the prior written consent of
Landlord as required in (i) above, provided that (a) Tenant shall deliver to
Landlord at least 30 day's advance notice of such proposed assignment or
sublease, (b) in the case of a merger, consolidation or sale, the net worth of
Tenant's successor (determined in accordance with generally accepted accounting
principles) immediately after such merger, consolidation or sale shall be at
least equal to the net worth of Tenant (similarly determined) immediately prior
to such merger, consolidation or sale. If for any assignment or sublease or
occupancy by another, Tenant receives rent or other consideration, either
initially or over the term of the assignment, sublease or occupancy, in excess
of the rent called for hereunder, or in case of sublease of part of the
Premises, in excess of such rent fairly allocable to the part so subleased,
after appropriate adjustments to assure that all other payments called for
hereunder are appropriately taken into account, Tenant shall pay to Landlord, as
Additional Rent, 50% of the excess of each such payment of rent or other
consideration received by Tenant promptly after its receipt. In the event of a
proposed subletting, Tenant's request for Landlord's consent shall
14
constitute an offer to Landlord to release from this Lease that portion of the
Premises proposed to be sublet, which offer Landlord may accept within 30 days
after receipt. If Landlord accepts such offer, this Lease shall be deemed to
have been amended by deleting such portion from the Premises and by reducing the
Fixed Rent by an amount equal to the product of the Fixed Rent multiplied times
a fraction, the numerator of which shall be equal to the net rentable floor area
of such portion deleted from the Premises and the denominator of which shall be
equal to the net rentable floor area of the Premises including the deleted
portion. Thereafter, for all purposes of this Lease the Premises shall mean the
balance of the premises demised hereunder following deletion of the affected
portion thereof, and all Additional Rent payable hereunder shall be adjusted
pro-rata, accordingly. Such amendment shall be effective on the proposed
effective date of the sublease as specified in Tenant's request for consent.
Tenant shall be responsible for all changes in leasehold improvements, including
doors and demising walls, required by such amendment, which changes shall be
constructed in accordance with the relevant provisions of Section 3.2, Section
5.1.5 and Section 5.2.3, and Tenant shall at all times provide reasonable and
appropriate access through the balance of the Premises demised hereunder to such
deleted portion of the Premises and use of any common facilities lying within
the said balance of the Premises. Landlord's failure to accept Tenant's offer to
release shall not constitute a consent to the proposed subletting. In the event
of a proposed assignment of this Lease, Tenant's request for Landlord's consent
shall constitute an offer to Landlord to terminate this Lease, which offer
Landlord may accept within 30 days after receipt. Landlord's failure to accept
Tenant's offer to terminate shall not constitute a consent to the proposed
assignment. For the purposes of this Section 5.2.1, the transfer in the
aggregate in any one year of 50% or more in interest in Tenant (whether stock,
partnership interest or other form of ownership or control) by any person or
persons having an interest in ownership or control of Tenant shall be deemed an
assignment of this Lease. The preceding sentence shall not apply to an initial
public offering of the stock of the initial Tenant, nor to the trading of the
outstanding stock of the initial Tenant thereafter so long as such Tenant has a
class of stock registered under the Securities Exchange Act of 1934.
Any attempted assignment, transfer, mortgage, pledge, grant of security
interest, sublease or other encumbrance, except as permitted by this Section
5.2.1, shall be void. No assignment, transfer, mortgage, grant of security
interest, sublease or other encumbrance, whether or not approved, and no
indulgence granted by Landlord to any assignee, sublessee or occupant shall in
any way impair Tenant's continuing primary liability (which, except for a
complete assignment of Tenant's interest releasing Tenant from further liability
hereunder and consented to by Landlord pursuant to Section 5.2.1, shall be joint
and several with the
15
assignee or sublessee) of Tenant hereunder, and no approval in a particular
instance shall be deemed to be a waiver of the obligation to obtain Landlord's
approval in any other case.
5.2.2 Overloading and Nuisance. Not to injure, overload, deface or
otherwise harm the Premises; nor commit any nuisance; nor permit the emission of
any objectionable noise or odor; nor make, allow or suffer any waste; not to
dump, flush, or in any way introduce any hazardous substances or any other toxic
substances into the septic, sewage or other waste disposal system serving the
Premises; not to generate, store, use or dispose of hazardous or toxic
substances in or on the Premises, or dispose of hazardous or toxic substances
from the Premises to any other location, or commit or suffer to be committed in
or on the Premises any act which would require the filing of notice pursuant to
Chapter 232 of the Acts of 1982, without the prior written consent of Landlord
and then only in compliance with any and all Federal, state and local laws and
ordinances regulating such activity; nor make any use of the Premises which is
improper, offensive or contrary to any law or ordinance or which will invalidate
any of Landlord's insurance; nor conduct any auction, fire, "going out of
business" or bankruptcy sales. "Hazardous substances" and "toxic substances",
as used in this paragraph, shall have the same meanings as defined and used in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. 9061 et seq.; in the Hazardous Materials
Transportation Act, 49 U.S.C. 1802; in the Toxic Substances Act, 15 U.S.C.
2601 et seq.; and in the regulations adopted and publications promulgated
pursuant to said Acts.
5.2.3 Installation, Alterations or Additions. Except for the work
specified in Exhibit C, not to make any installations, alterations or additions
in, to or on the Premises (including, without limitation, buildings, lawns,
planted areas, walks, roadways, parking and loading areas) nor to permit the
making of any holes in the walls, partitions, ceilings or floors, nor permit the
painting or placing of any exterior signs, placards or other advertising media,
awning, aerials, antennas, or flagpoles, or the like, without on each occasion
obtaining the prior written consent of Landlord, and then only pursuant to plans
and specifications approved by Landlord in advance in each instance.
ARTICLE VI: Casualty or Taking
-------------------------------
6.1 Termination Rights. In case prior to or during the Term more than 50%
of the Premises or the Building or the lot on which the Building is located (the
"Lot") are damaged by fire or other casualty or by action of public or other
authority in consequence thereof, or taken by eminent domain or Landlord
receives compensable damage by reason of anything lawfully done in pursuance of
public or other authority, and Landlord
16
determines in its sole discretion that the Premises or Building shall not be
restored, this Lease shall terminate by written notice to Tenant from Landlord
given not more than forty-five (45) days after such casualty or taking, which
termination may be made notwithstanding Landlord's entire interest may have been
divested. The effective date of termination specified by Landlord shall not be
less than thirty (30) nor more than sixty (60) days after the date of written
notice of such termination. Further, during the Term, in the event of (a) damage
to the Premises which makes fifty (50%) percent or more of the Premises unfit
for use and occupancy, or damage to the Tenant's computer room located in the
Premises that renders such computer room inoperable, or (b) damage to a material
portion of the common facilities necessary for the practical use and enjoyment
of the Premises (including, without limitation, any material portion of the
common facilities which provide access to the Premises), or (c) a permanent
taking of fifty (50%) percent or more of the Premises or a taking of any portion
of the Tenant's computer room that renders such computer room inoperable, or (d)
a permanent taking of a material portion of the common facilities necessary for
the practical use and enjoyment of the Premises (including, without limitation,
any material portion of the common facilities which provide access to the
Premises), Tenant may, by notice given to Landlord within 30 days of such
casualty or taking, notify Landlord of its desire to terminate this Lease. If
such a notice is given, this Lease shall terminate 30 days after such notice is
given unless, in the case of (a) or (b) above, within 30 days of the giving of
such notice, Landlord delivers to Tenant its certification (together with a
construction schedule demonstrating that the damaged portion of the Premises
will be restored by the Outside Restoration Date) that the Landlord intends to
restore the Premises and the common facilities, as the case may be, to
substantially the condition they were in prior to such casualty or taking within
180 days of the event giving rise to such notice (the "Outside Restoration
Date"), and in the case of (c) or (d) above, the Landlord intends to replace
what remains of the Premises and the common facilities, as the case may be, by
the Outside Restoration Date so that Tenant will again be able to have the
practical use and enjoyment of the Premises to substantially the same extent as
prior to such taking. Notwithstanding the foregoing, with respect to any
casualty occurring in Tenant's computer room, the Outside Restoration Date for
restoration work undertaken in such computer room shall be the date sixty (60)
days after the casualty or taking. Unless terminated pursuant to the foregoing
provision, this Lease shall remain in full force and effect following any damage
or taking, subject, however, to the following provisions, and subject further to
the additional right of Tenant to terminate this Lease if the restoration of the
Premises or the common facilities has not occurred by the Outside Restoration
Date (such date being extended by the number of days, not to exceed fifteen (15)
days in the aggregate with respect to restoration work being done in
17
Tenant's computer room, and sixty (60) days in the aggregate otherwise, as
specified in a notice or notices given from time to time by Landlord to Tenant
prior to the then applicable Outside Restoration Date, of delays in completion
attributable to the occurrence of a force majeure event as provided in Section
9.5). Tenant may not exercise such additional right to terminate this Lease
except within 30 days after the Outside Restoration Date (as so extended by such
a notice or notices). Notwithstanding the foregoing, upon the occurrence of a
casualty or taking of the nature hereinabove described in clauses (a), (b), (c),
or (d), which occurs within the last twelve (12) months of the Term, Landlord
shall have the option to terminate this Lease upon written notice to Tenant.
If in any such case the Premises or any portion thereof are rendered unfit
for use and occupation or any portion of the common facilities necessary for the
practical use and enjoyment of the Premises are unavailable for use and this
Lease is not so terminated, Landlord shall use due diligence (following the
expiration of the period in which this Lease may be terminated pursuant to the
foregoing provisions of this Section 6.1), subject to the availability of
insurance proceeds and consent of the holders of any mortgages on the Lot,
Building or both, to put the Premises, and any portion of the common facilities
necessary for the practical use and enjoyment of the Premises or in case of a
taking what may remain thereof (excluding in case of both damage and taking any
items installed or paid for by Tenant), into proper condition for use and
occupation prior to the Outside Restoration Date. A just proportion of the
fixed rent and additional rent according to the nature and extent of the injury
shall be abated from the time of the damage or taking until the Premises or such
portion of the common facilities or such remainder shall have been put into
proper condition for use and occupation or until termination of this Lease, and
in case of a taking which permanently reduces the area of the Premises, a just
proportion of the fixed rent and additional rent shall be abated for the
remainder of the Term.
6.2 Award. Irrespective of the form in which recovery may be had by law,
all rights to damages or compensation shall belong to Landlord in all cases.
Tenant hereby grants to Landlord all of Tenant's rights to such damages and
covenants to deliver such further assignments thereof as Landlord may from time
to time request.
ARTICLE VII: Defaults
----------------------
7.1 Events of Default. (a) If Tenant shall default in the performance of
any of its obligations to pay the Fixed Rent or Additional Rent hereunder and if
such default shall continue for 10 days after notice from Landlord designating
such default or if within 30 days after notice from Landlord to Tenant
specifying any other default or defaults Tenant has not commenced diligently to
correct the default or defaults so specified or has not thereafter diligently
pursued such correction to completion, or (b) if Tenant or any present or future
guarantor of all or any portion of Tenant's obligations under this Lease (a
"Guarantor") becomes insolvent or fails to pay its debts as they fall due, or
18
(c) if a trust mortgage or assignment is made by Tenant or by any Guarantor for
the benefit of creditors, or (d) if Tenant or any Guarantor proposes a
composition, arrangement, reorganization or recapitalization with creditors, or
(e) if the leasehold estate under this Lease or any substantial part of the
property of Tenant or of any Guarantor is taken on execution, or by other
process of law, or is attached or subjected to any other involuntary
encumbrance, or (f) if a receiver, trustee, custodian, guardian, liquidator or
similar agent is appointed with respect to Tenant or any Guarantor, or if any
such person or a mortgagee, secured party or other creditor takes possession of
the Premises or of any substantial part of the property of Tenant or of any
Guarantor, and, in either case, if such appointment or taking of possession is
not terminated within 30 days after it first occurs, or (g) if a petition is
filed by or with the consent of Tenant or of any Guarantor under any federal or
state law concerning bankruptcy, insolvency, reorganization, arrangement, or
relief from creditors, or (h) if a petition is filed against Tenant or against
any Guarantor under any federal or state law concerning bankruptcy, insolvency,
reorganization, arrangement, or relief from creditors, and such petition is not
dismissed within 60 days thereafter, or (i) if Tenant or any Guarantor which is
a corporation dissolves or is dissolved or liquidates or adopts any plan or
commences any proceeding, the result of which is intended to include dissolution
or liquidation, then, and in any of such cases, Landlord and the agents and
servants of Landlord lawfully may, in addition to and not in derogation of any
remedies for any preceding breach of covenant, immediately or at any time
thereafter and without demand or notice and with or without process of law
(except such demand, notice, or legal process, if any, as required by applicable
law) enter into and upon the Premises or any part thereof (forcibly, if
necessary) in the name of the whole or mail a notice of termination addressed to
Tenant, and repossess the same as of Landlord's former estate and expel Tenant
and those claiming through or under Tenant and remove its and their effects
(forcibly, if necessary) without being deemed guilty of any manner of trespass
and without prejudice to any remedies which might otherwise be used for arrears
of rent or prior breach of covenant, and upon such entry or mailing as aforesaid
this Lease shall terminate, Tenant hereby waiving all statutory rights
(including without limitation rights of redemption, if any, to the extent such
rights may be lawfully waived) and Landlord, without notice to Tenant, may store
Tenant's effects, and those of any person claiming through or under Tenant at
the expense and risk of Tenant, and, if Landlord so elects, may sell such
effects at public auction or private sale and apply the net proceeds to the
payment of all sums due to Landlord from Tenant, if any, and pay over the
balance, if any, to Tenant.
7.2 Remedies. In the event that this Lease is terminated under any of the
provisions contained in Section 7.1 or shall be all be otherwise terminated for
breach of any obligation of Tenant, Tenant covenants to pay forthwith to
Landlord, as compensation, the greater of: (a) the excess of the total rent
reserved for the residue of the Term over the rental value of the
19
Premises for said residue of the Term (in calculating the rent reserved there
shall be included, in addition to the Fixed Rent and Additional Rent, the value
of all other considerations agreed to be paid or performed by Tenant for said
residue); or (b) all the sums and to perform all the obligations which Tenant
covenants in this Lease to pay and to perform in the same manner and to the same
extent and at the same time as if this Lease had not been terminated. In
calculating the amounts to be paid by Tenant pursuant to the next preceding
sentence Tenant shall be credited with the portion of any amount paid to
Landlord as compensation as in this Section 7.2 provided, allocable to the
corresponding portion of the Term and also with the net proceeds of any rent
obtained by Landlord by reletting the Premises, after deducting all Landlord's
reasonable expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, fees for legal
services and expenses of preparing the Premises for such reletting, it being
agreed by Tenant that Landlord may, but shall not be obligated to, (i) relet the
Premises or any part or parts thereof, for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term and may grant such
concessions and free rent as Landlord in its reasonable judgment considers
advisable or necessary to relet the same, (ii) make such alterations, repairs
and decorations in the Premises as Landlord in its reasonable judgment considers
advisable or necessary to relet the same, and (iii) keep the Premises vacant
unless and until Landlord is able to rent the Premises to a Tenant which is at
least as desirable and financially responsible as Tenant is on the date of this
Lease, on terms not less favorable to Landlord than those of this Lease. No
action of Landlord in accordance with the foregoing or failure to relet or to
collect rent under reletting shall operate or be construed to release or reduce
Tenant's liability as aforesaid. Nothing contained in this Lease shall limit or
prejudice the right of Landlord to prove for and obtain in proceedings under any
federal or state law relating to bankruptcy or insolvency or reorganization or
arrangement, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, the
damages are to be proved.
7.3 Remedies Cumulative. Any and all rights and remedies which Landlord
may have under this Lease, and at law and equity, shall be cumulative and shall
not be deemed inconsistent with each other, and any two or more of all such
rights and remedies may be exercised at the same time insofar as permitted by
law.
7.4 Landlord's Right to Cure Defaults. Landlord may, but shall not be
obligated to, cure, at any time, following 10 days' prior notice to Tenant,
except in cases of emergency when no notice shall be required, any default by
Tenant under this Lease; and whenever Landlord so elects, all costs and expenses
incurred
20
by Landlord, including reasonable attorneys' fees, in curing a default shall be
paid by Tenant to Landlord as Additional Rent on demand, together with interest
thereon at the rate provided in Section 4.3 from the date of payment by Landlord
to the date of payment by Tenant.
7.5 Effect of Waivers of Default. Any consent or permission by Landlord
to any act or omission which otherwise would be a breach of any covenant or
condition herein, or any waiver by Landlord of the breach of any covenant or
condition herein, shall not in any way be held or construed (unless expressly so
declared) to operate so as to impair the continuing obligation of any covenant
or condition herein, or otherwise, except as to the specific instance, operate
to permit similar acts or omissions. The failure of Landlord to seek redress
for violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease shall not be deemed a waiver of such violation nor
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed to have been a waiver of such breach by Landlord, or by
Tenant, unless such waiver be in writing signed by the party to be charged. No
consent or waiver, express or implied, by Landlord to or of any breach of any
agreement or duty shall be construed as a waiver or consent to or of any other
breach of the same or any other agreement or duty.
7.6 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum
than the Fixed Rent, Additional Rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such rent or
charge due, unless Landlord elects by notice to Tenant to credit such sum
against the most recent installment due, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent or other
charge be deemed a waiver, an agreement or an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such installment or pursue any other remedy in this
Lease provided.
ARTICLE VIII: Mortgages
------------------------
8.1 Rights of Mortgage Holders. The word "mortgage" as used herein
includes mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof. The word "holder" shall mean a
mortgagee, and any subsequent holder or holders of a mortgage. Until the holder
of a mortgage shall enter and take possession of the Premises for the purpose of
foreclosure, such holder shall have only such rights of Landlord as are
necessary to preserve
21
the integrity of this Lease as security. Upon entry and taking possession of the
Premises for the purpose of foreclosure, such holder shall have all the rights
of Landlord. Notwithstanding any other provision of this Lease to the contrary,
including without limitation Section 9.4, no such holder of a mortgage shall be
liable either as mortgagee or as assignee, to perform, or be liable in damages
for failure to perform, any of the obligations of Landlord unless and until such
holder shall enter and take possession of the Premises for the purpose of
foreclosure, and such holder shall not in any event be liable to perform or for
failure to perform the obligations of Landlord under Section 3.1. Upon entry for
the purpose of foreclosure, such holder shall be liable to perform all of the
obligations of Landlord under this Lease accruing from and after such entry
(except for the obligations under Sections 3.1 and 3.5 which such holder shall
in no event be obligated to perform), subject to and with the benefit of the
provisions of Section 9.4, provided that a discontinuance of any foreclosure
proceeding shall be deemed a conveyance under said provisions to the owner of
the Premises. No Fixed Rent, Additional Rent or any other charge shall be paid
more than 10 days prior to the due dates thereof and payments made in violation
of this provision shall (except to the extent that such payments are actually
received by a mortgagee in possession or in the process of foreclosing its
mortgage) be a nullity as against such mortgagee and Tenant shall be liable for
the amount of such payments to such mortgagee. The covenants and agreements
contained in this Lease with respect to the rights, powers and benefits of a
holder of a mortgage (including, without limitation, the covenants and
agreements contained in this Section 8.1) constitute a continuing offer to any
person, corporation or other entity, which by accepting a mortgage subject to
this Lease, assumes the obligations herein set forth with respect to such
holder; such holder is hereby constituted a party of this Lease as an obligee
hereunder to the same extent as though its name were written hereon as such; and
such holder shall be entitled to enforce such provisions in its own name. Tenant
agrees on request of Landlord to execute and deliver from time to time any
agreement which may be necessary to implement the provisions of this Section
8.1.
8.2 Lease Superior or Subordinate to Mortgages. This Lease is and shall
continue to be subject and subordinate to any presently existing mortgage or
mortgages secured by the Premises, and to any and all advances hereafter made
thereunder, and to the interest of the holder or holders thereof in the
Premises. The holder of any such presently existing mortgage shall have the
election to subordinate the same to this Lease, exercisable by filing with the
appropriate recording office a notice of such election, whereupon this Lease
shall have priority over such mortgage. A copy of such filing shall be given to
Tenant. Such election by the holder of any presently existing mortgage shall
not affect priority with respect to this Lease of
22
any other presently existing mortgage. Any mortgage or other voluntary lien or
other encumbrance recorded subsequent to the recording of the notice or short
form referred to in Section 9.3 shall be subject and subordinate to this Lease
unless Landlord and the holder of any such subsequent mortgage and the holders
of all mortgages prior to such subsequent mortgage elect to subordinate this
Lease to such subsequent mortgage and to any and all advances thereafter made
thereunder and to the interest of the holder thereof in the Premises, such
election to be exercisable by Landlord and all such holders by filing with the
appropriate recording office (a) a notice of such election and (b) an agreement
between the holder of such subsequent mortgage and Tenant, consented to by
holders of all mortgages having priority over such subsequent mortgage, by the
terms of which such holder will agree to recognize the rights of Tenant under
this Lease and to accept Tenant as tenant of the Premises under the terms and
conditions of this Lease in the event of acquisition of title by such holder
through foreclosure proceedings or otherwise and Tenant will agree to recognize
the holder of such subsequent mortgage as Landlord in such event, which
agreement shall be made expressly to bind and inure to the benefit of the
successors and assigns of Tenant and of such holder and upon anyone purchasing
said Premises at any foreclosure sale brought by such holder. Tenant and
Landlord agree to execute and deliver any appropriate instruments necessary to
carry out the agreements contained in this Section 8.2. Any such subsequent
mortgage to which this Lease is subordinated may contain such terms, provisions
and conditions as are usual or customary.
ARTICLE IX: Miscellaneous Provisions
-------------------------------------
9.1 Notices from One Party to the Other. All notices required or
permitted hereunder shall be in writing and addressed, if to the Tenant, at the
Original Address of Tenant or such other address as Tenant shall have last
designated by notice in writing to Landlord and, if to Landlord, at the Original
Address of Landlord or such other address as Landlord shall have last designated
by notice in writing to Tenant. Any notice shall be deemed duly given when
mailed to such address postage prepaid, registered or certified mail, return
receipt requested, or when delivered to such address by hand.
9.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying the rent
and performing and observing the terms, covenants, conditions and provisions on
its part to be performed and observed, Tenant shall and may peaceably and
quietly have, hold and enjoy the Premises during the Term without any manner of
hindrance or molestation from Landlord or anyone claiming under Landlord,
subject, however, to the terms of this Lease.
9.3 Lease not to be Recorded. Tenant agrees that it will
23
not record this Lease. Both parties shall, upon the request of either, execute
and deliver a notice or short form of this Lease in such form, if any, as may be
permitted by applicable statute. If this Lease is terminated before the Term
expires the parties shall execute, deliver and record an instrument
acknowledging such fact and the actual date of termination of this Lease, and
Tenant hereby appoints Landlord its attorney-in-fact, coupled with an interest,
with full power of substitution to execute such instrument.
9.4 Bind and Inure; Limitation of Landlord's Liability. The obligations
of this Lease shall run with the land, and this Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. No owner of the Premises shall be liable under this Lease except for
breaches of Landlord's obligations occurring while owner of the Premises. The
obligations of Landlord shall be binding upon the assets of Landlord which
comprise the Premises but not upon other assets of Landlord. No individual
partner, trustee, stockholder, officer, director, employee or beneficiary of
Landlord shall be personally liable under this Lease and Tenant shall look
solely to Landlord's interest in the Premises in pursuit of its remedies upon an
event of default hereunder, and the general assets of Landlord and of the
individual partners, trustees, stockholders, officers, employees or
beneficiaries of Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant. The next
preceding sentence shall not limit the right of Tenant to name Landlord or any
individual partner or trustee thereof as party defendant in any action or suit
in connection with this Lease so long as no personal money judgment shall be
asked for or taken against any individual partner, trustee, stockholder,
officer, employee or beneficiary of Landlord.
9.5 Acts of God. In any case where either party hereto is required to do
any act, delays caused by or resulting from Acts of God, war, civil commotion,
fire, flood or other casualty, labor difficulties, shortages of labor, materials
or equipment, government regulations, unusually severe weather, or other causes
beyond such party's reasonable control shall not be counted in determining the
time during which work shall be completed, whether such time be designated by a
fixed date, a fixed time or a "reasonable time", and such time shall be deemed
to be extended by the period of such delay.
9.6 Landlord's Default. Landlord shall not be deemed to be in default in
the performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of 30 days
following Landlord's receipt of notice from Tenant specifying the nature of
Landlord's alleged default, or such additional time, not to exceed 120 days, as
is reasonably required to correct any such default that cannot
24
be cured within 30 days, provided Landlord commences such cure within 30 days
and thereafter diligently pursues the same until completion. In the event
Landlord fails to cure a material default alleged in Tenant's notice of default,
Tenant shall be entitled to terminate this lease upon 10 days written notice to
Landlord if such default is not cured within such 10 days, but Tenant shall have
no other right to terminate this Lease and no right, for any default, to offset
or counterclaim against any rent due hereunder. Landlord shall not be liable in
any event for incidental or consequential damages to Tenant by reason of any
default by Landlord hereunder, whether or not Landlord is notified that such
damages may occur.
9.7 Brokerage. Tenant warrants and represents that it has had no dealings
with any broker or agent in connection with this Lease and covenants to defend
with counsel approved by Landlord, hold harmless and indemnify Landlord from and
against any and all cost, expense or liability for any compensation, commissions
and charges claimed by any broker or agent with respect to Tenant's dealings in
connection with this Lease or the negotiation thereof.
Landlord warrants and represents that it has had no dealings with any
broker or agent in connection with this Lease and covenants to defend with
counsel approved by Tenant, hold harmless and indemnify Tenant from and against
any and all cost, expense or liability for any compensation, commissions and
charges claimed by any broker or agent with respect to Landlord's dealings in
connection with this Lease or the negotiation thereof.
9.8 Applicable Law and Construction.
9.8.1 Applicable Law. This Lease shall be governed by and construed in
accordance with the laws of the state in which the Premises are located. If any
term, covenant, condition or provision of this Lease or the application thereof
to any person or circumstances shall be declared invalid, or unenforceable by
the final ruling of a court of competent jurisdiction having final review, the
remaining terms, covenants, conditions and provisions of this Lease and their
application to persons or circumstances shall not be affected thereby and shall
continue to be enforced and recognized as valid agreements of the parties, and
in the place of such invalid or unenforceable provision, there shall be
substituted a like, but valid and enforceable provision which comports to the
findings of the aforesaid court and most nearly accomplishes the original
intention of the parties.
9.8.2 No Other Agreement. There are no oral or written agreements between
Landlord and Tenant affecting this Lease. This Lease may be amended, and the
provisions thereof may be
25
waived or modified, only by instruments in writing executed by Landlord and
Tenant.
9.8.3 No Representations by Landlord. Neither Landlord nor any agent of
Landlord has made any representations or promises with respect to the Premises
or the Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are granted to Tenant except as herein expressly set
forth.
9.8.4 Titles. The titles of the several Articles and Sections contained
herein are for convenience only and shall not be considered in construing this
Lease.
9.8.5 "Landlord" and "Tenant". Unless repugnant to the context, the words
"Landlord" and "Tenant" appearing in this Lease shall be construed to mean those
named above and their respective heirs, executors, administrators, successors
and assigns, and those claiming through or under them respectively. If there be
more than one tenant the obligations imposed by this Lease upon Tenant shall be
joint and several.
9.9 Submission Not an Offer. The submission of a draft of this Lease or a
summary of some or all of its provisions does not constitute an offer to lease
or demise the Premises, it being understood and agreed that neither Landlord nor
Tenant shall be legally bound with respect to the leasing of the Premises unless
and until this Lease has been executed by both Landlord and Tenant and a fully
executed copy delivered.
9.10 Signs. If permitted as of right under the applicable ordinances in
the Town of Billerica, Landlord shall install, at its expense, the following
signs for Tenant:
an exterior sign on the portion of the Building known as the connector
building; and
appropriate interior signs in such locations as to be reasonably approved
by Landlord and Tenant.
Plans for such signs shall be prepared by Landlord and approved by Tenant,
such approval not to be unreasonably withheld. In the event that construction
of any or all of the signs listed above is not permitted as of right, Landlord
shall so notify Tenant, and if Tenant still desires the construction of such
sign or signs, Landlord shall, at Tenant's expense, use reasonable efforts to
obtain the appropriate approvals for the same from the Town of Billerica. In no
event shall Landlord be required to appeal any unfavorable decision by Town of
Billerica authorities. Tenant shall reimburse Landlord for its expenses in
pursuing such approvals within 15 days of Landlord's invoice for the same.
26
9.11 Costs and Expenses of Enforcement. In the event of any action taken
by Landlord or Tenant to enforce a provision of this Lease against the other,
the non-prevailing party shall pay the prevailing party, on demand, its costs,
including reasonable attorney's fees and expenses, incurred in such enforcement
action.
WITNESS the execution hereof under seal as of the day and year set forth
in Section 1.1.
Landlord: Tenant:
Wang Laboratories, Inc. Peritus Software Services, Inc.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------- -----------------------------
Its: Its:
Hereunto duly authorized Hereunto duly authorized
(attach corporate vote)
27
EXHIBIT A
The Premises are shown as the shaded areas on the attached plan.
[DIAGRAM OF PREMISES APPEARS HERE]
28
EXHIBIT B
Landlord's Work
Connector portion of the Building
---------------------------------
Install refurbished Xxxxxx Xxxxxx partition cubicles, 5' high with 30" work
surface, including corner surfaces, 2 flipper files with lights under, 2
pedestal files, pencil drawer, keyboard drawer, cabled and powered per
specifications to be attached
Manufacturing portion of the Building
-------------------------------------
Install refurbished Xxxxxx Xxxxxx partition cubicles, 5' high with 30" work
surface, including corner surfaces, 2 flipper files with lights under, 2
pedestal files, pencil drawer, keyboard drawer, cabled and powered per
specifications to be attached
new carpet to match existing carpet in manufacturing building
paint walls and ceiling
build out office area in computer room with demountable walls, cabled and
powered per specifications to be attached
Except for the foregoing Landlord's Work, the Premises are leased to Tenant
in "AS IS" and "WHERE IS" condition, without representation or warranty of any
kind.
29
EXHIBIT C
Tenant's Work
All work, other than Landlord's Work, required by Tenant for Tenant's use
and occupancy.
30
EXHIBIT D
---------
SERVICES TO SE SUPPLIED BY LANDLORD
Landlord shall provide the following services, utilities, facilities and
supplies:
1. Access. Access to the Premises from the Building lobby during regular
------
Building hours 8:00 a.m. to 6:00 p.m. Monday through Friday (holidays
excluded), 8:00 am. to 1:00 p.m. Saturdays, and, at all other times,
controlled access under conditions which will ensure the security of
the Building;
2. Elevator. Daily elevator service during Building hours as specified
--------
above with other service as needed;
3. Heat and Air Conditioning. [Note: The following restrictions on HVAC
-------------------------
services shall not apply to the areas designated on Exhibit A as
-------
requiring 24-hour a day cooling.] Normal amounts of heat and air-
conditioning to the common areas of the Building and the Premises and
the Temporary Premises during normal seasonal heating and cooling
periods during regular Building hours 8:00 a.m. to 6:00 p.m. Monday
through Friday (holidays excluded) and 8:00 a.m. to 1:00 p.m.
Saturdays. Landlord shall furnish heat or air-conditioning beyond the
hours stated above provided that Tenant delivers notice to Landlord
requesting such service before noon on the business day when such
service is required for that evening and by noon of the preceding
business day when such service is required on a Saturday, Sunday or
holiday. Tenant and other tenants, if any, located in the applicable
heating or air-conditioning zone who have requested and are receiving
the benefit of such service at the same time as Tenant shall pay their
proportionate share of Landlord's Cost of supplying such additional
service. Within ten (10) days after receipt of a xxxx from Landlord
enumerating its costs for such services, Tenant shall pay Landlord all
amounts so billed;
4. Hot and Cold Water. Hot and cold water for lavatory, drinking and
------------------
office cleaning purposes. If Tenant requires, uses or consumes water
for any other purpose, Landlord may install a meter or meters or other
means to measure Tenant's water consumption and Tenant further agrees
to reimburse Landlord for the cost of the meter or meters and the
installation thereof, and to pay for the maintenance of the meter
equipment and/or to pay Landlord's cost of installing other means of
measuring
such water consumption by Tenant. Within ten (10) days after receipt
of a xxxx from Landlord setting forth the cost of all water consumed
by Tenant (including sewer rents). Tenant shall pay Landlord the
amount so billed;
5. Snow Removal. The removal of snow and ice from the entry to and
------------
sidewalks of the Building;
6. Security. Lobby security desk with security guard, elevator lockoff
--------
capacity, intercom system and television monitoring System;
7. Cleaning. Building Standard cleaning services in the Premises,
--------
Temporary Premises and common areas of the Building, except Saturdays,
Sundays and holidays as follows:
OFFICE AREA
-----------
Daily - Monday through Friday inclusive, Legal Massachusetts
-----
Holidays excluded.
1. Empty all receptacles and remove trash to designated
area, wash receptacles as necessary.
2. Spot vacuum all rugs and carpets.
3. Hand dust and wipe clean with treated cloths all
horizontal surfaces including furniture, office
equipment, window xxxxx, door ledges, chair rails and
convertor tops, within normal reach.
4. Wash clean all water fountains.
Weekly
------
1. Dust coat racks, and the like.
2. Remove all finger marks from private entrance doors,
light switches and doorways.
3. Vacuum all rugs and carpets.
4. Hand dust all grill work within normal reach.
5. Sweep and damp mop all uncarpeted areas using a dust-
treated mop.
Quarterly - Render high dusting not reached in daily cleaning to
---------
include;
1. Dusting all picture frames, charts, graphs, and similar
wall hangings.
D-2
2. Dusting all vertical surfaces such as walls,
partitions, doors and ducts.
3. Dusting of all exposed pipes, ducts and high moldings.
4. Dusting of all venetian blinds.
LAVATORIES
----------
Daily - Monday through Friday inclusive, Legal Massachusetts
-----
Holidays excluded.
1. Sweep and damp mop floor.
2. Clean all mirrors, powder shelves, dispensers and
receptacles, bright work, flushometers, piping and
toilet seat hinges.
3. Wash both sides of toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust clean all powder room fixtures.
6. Empty and clean paper towel and sanitary receptacles.
7. Remove waste paper and refuse to designated area.
8. Refill soap dispensers, towel dispensers, vending
sanitary dispensers (materials to be supplied by
Landlord).
9. A sanitizing solution will be used in all lavatory
cleaning.
Monthly
-------
1. Machine scrub lavatory floor.
2. Wash all partitions and tile walls in lavatories.
3. Dust exhaust vents and ceiling diffusers.
MAIN LOBBY, ELEVATORS, AND CORRIDORS
------------------------------------
Daily - Monday through Friday inclusive, legal Massachusetts
-----
Holidays excluded.
1. Wash or vacuum all floors.
2. Wash all rubber mats.
3. Clean all elevators, wash or vacuum floor, wipe down
walls and doors.
4. Spot clean any metal work in lobby.
5. Spot clean any metal work surrounding
D-3
building entrance doors.
6. Spot clean and polish guard desk.
7. Vacuum all corridor carpets.
Weekly
------
1. All resilient tile floors in public areas to be treated
equivalent to spray buffing.
2. Shampoo carpeting in elevator.
STAIRWELLS
----------
Weekly - Monday through Friday inclusive, Legal Massachusetts
------
Holidays excluded.
1. Sweep all stairways.
SPECIAL NOTE
------------
1. Upon completion of cleaning, all lights will be turned
off and doors locked, leaving premises in an orderly
condition.
2. Any security problems will be immediately reported to
the security officer on duty.
3. Any maintenance problems discovered will be promptly
reported to building superintendent.
4. All cleaning personnel will wear identification badges
with their picture at all times while in the building.
D-4
[LETTERHEAD OF PERITUS]
December 2, 1994
Mr. Xxx Xxxxx
Bull Worldwide Information Systems
Law Xxxxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Re: PERITUS LETTER OF INTENT FOR LEASE SPACE - 000 XXXXXXX XXXX XXXXXXXXX
---------------------------------------------------------------------
Dear Xxx:
This letter is to confirm Peritus' intention to enter into a lease agreement
with Bull assignable to Wang. This lease agreement covers approximately 32,000
square feet of office and computer space at 000 Xxxxxxx Xxxx in Billerica, MA.
We are continuing our lease negotiations with Bull and Wang and expect a
resolution within the next few weeks.
Please let me know if you require anything further.
Regards,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Vice President
cc: Xxxx Xxxxxx
Xxx Xxxxxx
LEASE AMENDMENT
This Lease Amendment is entered in as of this 1st day of October, 1995,
between Wang Laboratories, Inc., a Delaware corporation ("Landlord") and Peritus
Software Services, Inc., a ________________ corporation ("Tenant").
Reference is made to a certain lease between Landlord and Tenant dated as
of February 1, 1995 (the "Lease"). This Lease Amendment amends certain
provisions of the Lease. All capitalized terms not defined herein shall have
the same meaning as set forth in the Lease.
1. Demise and Term. Landlord hereby leases and demises to Tenant and
---------------
Tenant hereby leases from Landlord, subject to and with the benefit of the
terms, covenants, conditions and provisions of the Lease, as the same is
affected by the provisions of this Lease Amendment, certain premises located on
the first floor of the Building, consisting of approximately 8678 square feet,
and shown on the plan attached as Exhibit A (the "Additional Premises"). With
respect to the Additional Premises, the term will commence and the increased
rent provisions described below will take effect 5 days after notice from
Landlord to Tenant that Landlord's Work (as defined below) on the Additional
Premises is substantially complete (the "Additional Premises Commencement
Date"), and shall continue for the Term (as defined in the Lease), unless sooner
terminated pursuant to the provisions of the Lease. The term "substantially
completed" as used herein shall mean that the work to be performed by Landlord
pursuant to Section 2 of this Lease Amendment has been completed with the
exception of: (a) minor items which can be fully completed without material
interference with the use of the Premises by Tenant for the Permitted Uses, (b)
other items which because of the season or weather or the nature of the item are
not practicable to do at the time and (c) items which are incomplete because of
Tenant Delays, which shall mean (i) the Tenant's failure to timely submit or
approve plans hereunder or (ii) the Landlord's inability to timely obtain or
install materials, fixtures or equipment requested by the Tenant which are not
included in the work to be performed by Landlord pursuant to Exhibit B, (iii)
change orders submitted by Tenant for further alterations or additions, or (iv)
the failure by Tenant to pay to Landlord upon the execution of this Lease
Amendment, the amount, if any, required to be paid for Tenant Improvements as
set forth in Section 2 below. When the dates of the beginning and end of the
Term of the Additional Premises have been determined such dates shall be
evidenced by a document in form for recording executed by Landlord and Tenant
and delivered each to the other.
2. Tenant Improvements. Landlord shall cause to be performed, at
-------------------
Tenant's expense, the work required by Exhibit B
1
("Landlord's Work"). All Landlord's Work shall be done in a good and workmanlike
manner employing good materials and so as to conform to all applicable
governmental laws, ordinances and regulations. Tenant agrees that Landlord may
make any changes in such work which may become reasonably necessary or
advisable, other than substantial changes, without approval of Tenant, provided
notice is promptly given to Tenant; and Landlord may make substantial changes in
such work, with the written approval of Tenant, which Tenant agrees will not be
unreasonably withheld. Landlord shall use reasonable efforts to substantially
complete Landlord's Work by September 15, 1995 (the "Additional Premises
Delivery Date"), as the same may be extended pursuant to a force majeure event
as described in Section 9.5 of the Lease, but Landlord shall not be liable to
Tenant or any other party for any damages suffered as a result of any failure by
Landlord to substantially complete Landlord's Work by the Additional Premises
Delivery Date.
Tenant agrees that it will, proceeding with all reasonable dispatch from
the time it receives from Landlord a notice that the Additional Premises are
ready for work by Tenant, perform the work to be done by Tenant as set forth on
Exhibit C ("Tenant's Work"), provided that no other work shall be done or
fixtures or equipment installed by Tenant except with the prior written approval
of Landlord and provided further that all work by Tenant shall be done in
accordance with Section 5.1.5 of the Lease.
During the period of occupancy of the Additional Premises by Tenant prior
to the Additional Premises Commencement Date, all provisions of the Lease and
this Lease Amendment except the provisions relating to the payment of rent for
the Additional Premises shall apply to the extent that said provisions may be
made applicable to said period.
Tenant's Construction Representative (as defined below) may enter upon the
Premises during the progress of Landlord's Work to inspect the progress thereof
and to determine if the work is being performed in accordance with the
requirements of this Section. Tenant shall promptly give to Landlord notices of
any alleged failure by Landlord to comply with those requirements.
Landlord's Work shall be deemed approved by Tenant when Tenant commences
occupancy of the Additional Premises for business purposes except for items of
Landlord's Work which are uncompleted or do not conform to Exhibit B and as to
which Tenant shall, in either case, have given notice to Landlord by providing a
"Punch List" prior to such commencement of occupancy. If Tenant shall not have
commenced occupancy of the Premises for business purposes within 30 days after
the Additional Premises Commencement Date, a certificate of completion by a
licensed architect or registered engineer shall be conclusive evidence that
Landlord's Work has been completed except for items stated
2
in such certificate to be incomplete or not in conformity with Exhibit B.
Each party authorizes the other to rely in connection with plans and
construction upon approval and other actions on the party's behalf by any
Construction Representative of the party named below or any person hereafter
designated in substitution or addition by notice to the party relying. Tenant's
Construction Representative shall be Xxxxx Xxxxx and Landlord's Construction
Representative shall be Xxxxxxx Xxxxxx.
Landlord agrees to correct any defects due to faulty workmanship or
materials in Landlord's Work for the Additional Premises, provided Tenant shall
have given written notice of such defects to Landlord prior to the first
anniversary of the Additional Premises Commencement Date. Except for the
Landlord's Work, the Premises are leased to Tenant in "AS IS" and "WHERE IS"
condition, without representation or warranty of any kind and Landlord makes no
express or implied warranty that the Premises are suitable for the Permitted
Uses, for Tenant's intended use of the Premises or for any purpose whatsoever.
Without limiting the generality of the foregoing, Tenant understands and agrees
that LANDLORD HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR THE PARTICULAR PURPOSE WITH RESPECT TO THE PREMISES AND ALL SYSTEMS
AND EQUIPMENT THEREIN.
3. Rent Increase. From and after the Additional Premises Commencement
-------------
Date, the Annual Fixed Rent shall be increased by $167,108.95, so that
thereafter the Annual Fixed Rent shall be equal to $636,543.95. From and after
the Additional Premises Commencement Date, the Monthly Rent Payment shall be
increased by $13,925.75, so that thereafter the Monthly Rent Payment shall be
equal to $53,045.33. The Rent increase amounts are based on an estimate of the
cost of Landlord's Work of $210,075.00. If the actual cost of Landlord's Work
is higher or lower than $210,075.00, Landlord shall provide an accounting of the
cost to Tenant after Landlord's Work is substantially completed, and the actual
increase shall be adjusted accordingly. Landlord and Tenant agree to execute a
subsequent Lease Amendment to confirm such adjustment at the request of either
party.
4. Default and Effective Date. In addition to any other remedies
--------------------------
Landlord may have under the Lease or otherwise, Landlord may terminate this
Lease Amendment, cease Landlord's Work on the Additional Premises, and retain
all amounts paid hereunder and under the Lease if a default occurs and remains
uncured beyond any applicable notice and grace periods under the Lease prior to
the later of the Additional Premises Commencement Date or Tenant's commencing
occupancy of the Additional Premises. From and after the Additional Premises
Commencement Date, all terms, covenants, conditions and provisions of the Lease,
as the same are affected by this Lease Amendment, shall apply to the Premises
3
and the Additional Premises.
5. Applicable Law and Severance. This Lease Amendment shall be governed
----------------------------
by and construed in accordance with the laws of the Commonwealth of
Massachusetts. If any term, covenant, condition or provision of this Lease
Amendment or the application thereof to any person or circumstances (other than
the provisions requiring increased rent payments) shall be declared invalid, or
unenforceable by the final ruling of a court of competent jurisdiction having
final review, the remaining terms, covenants, conditions and provisions of this
Lease and their application to persons or circumstances shall not be affected
thereby and shall continue to be enforced and recognized as valid agreements of
the parties, and in the place of such invalid or unenforceable provision, there
shall be substituted a like, but valid and enforceable provision which comports
to the findings of the aforesaid court and most nearly accomplishes the original
intention of the parties.
6. No Other Agreement. There are no oral or written agreements between
------------------
Landlord and Tenant affecting this Lease Amendment other than the Lease. The
Lease, and this Lease Amendment, may be amended, and the provisions thereof may
be waived or modified, only by instruments in writing executed by Landlord and
Tenant.
7. No Representations by Landlord. Neither Landlord nor any agent of
------------------------------
Landlord has made any representations or promises with respect to the Premises,
the Additional Premises or the Building except as herein expressly set forth,
and no rights, privileges, easements or licenses are granted to Tenant except as
herein expressly set forth.
8. Titles. The titles of the several Sections contained herein are for
------
convenience only and shall not be considered in construing the Lease or this
Lease Amendment.
9. Submission Not an Offer. The submission of a draft of this Lease or a
-----------------------
summary of some or all of its provisions does not constitute an offer to lease
or demise the Additional Premises, it being understood and agreed that neither
Landlord nor Tenant shall be legally bound with respect to the leasing of the
Additional Premises unless and until this Lease Amendment has been executed by
both Landlord and Tenant and a fully executed copy delivered.
10. Tenant's Right to Remove Xxxxxx Furniture. Because Landlord has
-----------------------------------------
purchased and installed additional Xxxxxx Furniture in the Additional Premises,
the second paragraph of Section 3.1 is amended to read as follows:
Landlord and Tenant acknowledge that included in the
4
Landlord's Work is the installation of certain Xxxxxx Xxxxxx Systems Furniture
(the "Xxxxxx Furniture"). With respect to the original Premises, Landlord has
purchased the Xxxxxx Furniture and amortized the cost of the same over seven
years so that the annual rent for each year of the Term with respect to the
original Premises includes 14.29% of the Xxxxxx Furniture cost. With respect to
the Additional Premises, Landlord has purchased additional Xxxxxx Furniture and
amortized the cost of the same over 76 and 1/2 months so that the annual rent
for each year of the Term with respect to the Additional Premises includes 15.79
of the Xxxxxx Furniture cost. Accordingly, at the expiration of the Term, and
provided no Event of Default has occurred that has not been cured at the
expiration of the Term, Landlord agrees Tenant may either (i) remove a total of
56.44 percent of the Xxxxxx Furniture from the entire Premises, including both
the original Premises and the Additional Premises, or (ii) pay Landlord
$117,931.00, which will be the remaining unamortized cost of the Xxxxxx
Furniture at the end of the Term installed in both the original Premises and
Additional Premises, and thereafter remove all of the Xxxxxx Furniture, in
either case such removal to be completed not more than 30 days prior to the
expiration of the Term and the Premises are to be otherwise in the condition
required by Section 5.1.10.
11. Expansion Rights and Obligations. Upon execution of this Lease
--------------------------------
Amendment and continuing until the date one (1) year from the date of execution
of this Lease Amendment (the "Put Date"), Tenant shall have a right of first
refusal to lease the premises located on the first floor of the Building,
consisting of approximately 7974 square feet and shown on the Plan Attached
hereto as Exhibit A (the "Expansion Premises"), subject to the terms and
conditions of this Section 11. If Landlord has reached an agreement with
another tenant to lease the Expansion Premises for a specified rent and a
specified allowance for tenant improvements (which allowance may be equal to
zero), then Landlord shall provide written notice to Tenant of such agreement
and Tenant shall have 7 days from the date of Landlord's notice to provide
written notice to Landlord that Tenant desires to lease the Expansion Premises
on the terms set forth in Landlord's notice (except that under all circumstances
if Tenant leases the Expansion Premises the term of the lease with respect to
the Expansion Premises shall be coterminous with the term of the Lease) . If
Tenant provides such notice, Tenant shall have 7 days from the date of Tenant's
notice to enter a lease amendment for the Expansion Premises prepared by
Landlord reflecting the terms of Landlord's notice. If Tenant fails to either
provide its notice or to execute and deliver the required lease amendment within
the time required, Landlord shall be free to lease the Expansion Premises to any
party on terms not more favorable to the tenant than those described in
Landlord's notice. If the terms of any subsequent agreement to lease the
Expansion Premises to another tenant are more favorable to the tenant than the
terms
5
contained in the original Landlord's notice, Landlord shall be required to
again initiate the procedure provided for in this Section and allow Tenant the
right to lease the Expansion Premises pursuant to the terms of such more
favorable agreement. Tenant's rights under this Section shall only apply if at
both the time of delivery of Tenant's notice and at the time of execution of the
lease amendment for the Expansion Premises there exists no event of default that
remains uncured. In addition to the foregoing, Tenant agrees that in
consideration of Landlord's granting Tenant the right of first refusal with
respect to the Expansion Premises, Tenant agrees that if Landlord has not
entered an agreement to lease the Expansion Premises to any party on or within 1
year after the Put Date, then at any time for 1 year after the Put Date Landlord
may require that Tenant execute a Lease Amendment within 15 days after written
notice to Tenant pursuant to which Tenant shall be required to lease the
Expansion Premises on the same rent, buildout provisions, and other terms and
conditions that applied to Tenant's leasing of Additional Premises pursuant to
this Lease Amendment. Failure of Tenant to execute and deliver such a lease
amendment with 15 days after landlord's notice requiring the same shall
constitute a default under the Lease, provided, however, that Landlord shall
only be entitled to require Tenant to lease the Expansion Premises within the
one year period after the Put Date.
12. Additional Expansion Rights and Obligations. If Landlord and Tenant
-------------------------------------------
executed the lease amendment for the Expansion Premises pursuant to Section 11
above, then from the date of such amendment and continuing until the date one
(1) year thereafter, Tenant shall have a right of first refusal to lease the
premises located on the first floor of the Building, consisting of approximately
3784 square feet and shown on the plan attached hereto as Exhibit A (the "Right
of First Refusal Premises"), subject to the terms and conditions of this Section
12. If Landlord has reached an agreement with another tenant to lease the Right
of First Refusal Premises for a specified rent and a specified allowance for
tenant improvements (which allowance may be equal to zero), then Landlord shall
provide written notice to Tenant of such agreement and Tenant shall have 7 days
from the date of Landlord's notice to provide written notice to Landlord that
Tenant desires to lease the Right of First Refusal Premises on the terms set
forth in Landlord's notice (except that under all circumstances if Tenant leases
the Right of First Refusal Premises the term of the lease with respect to the
Right of First Refusal Premises shall be coterminous with the term of the
Lease). If Tenant provides such notice, Tenant shall have 7 days from the date
of Tenant's notice to enter a lease amendment for the Right of First Refusal
Premises prepared by Landlord reflecting the terms of Landlord's notice. If
Tenant fails to either provide its notice or to execute and deliver the required
lease amendment within the time required, Landlord shall be free to lease the
Right of First
6
Refusal Premises to any party on such terms as Landlord shall deem advisable and
free of any obligation to lease the Right of First Refusal Premises to Tenant.
Tenant's rights under this Section shall only apply if Tenant and Landlord have
entered a Lease Amendment for the Expansion Premises and at both the time of
delivery of Tenant's notice and at the time of execution of the lease amendment
for the Right of First Refusal Premises there exists no event of default
hereunder or under the Lease that remains uncured.
13. Extension Rights and Obligations. If Landlord requires Tenant to
--------------------------------
execute the lease amendment for the Expansion Premises pursuant to the second
to last sentence of Section 11 above, then Tenant shall have the right to extend
the Term of the Lease, as the same may be amended from time to time, for one
additional period of 3 years, by written notice to Landlord given not later than
12 months prior to the expiration of the original Term of the Lease. In the
event Tenant exercises its option to extend the Term, the Lease will remain in
effect for the entire premises leased by Tenant on the expiration of the
original Term, for a period of 3 years from such expiration date, except that
the Annual Rent shall be the fair market rent (but not less than $12.50 per
rentable square foot on a gross lease basis), Landlord shall not be required to
perform any buildout work; and there shall be no further rights to extend or
expand the premises. In addition, Tenant's rights under this Section shall only
apply if both the time of delivery of Tenant's extension notice and at the time
of commencement of the extension term there exists no event of default hereunder
or under the Lease that remains uncured.
As amended hereby, Landlord and Tenant acknowledge and confirm that the
Lease remains in full force and effect.
WITNESS the execution hereof under seal as of the date first above written.
Landlord: Tenant:
Wang Laboratories, Inc. Peritus Software Services, Inc.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------- -------------------------
Its: Its:
Hereunto duly authorized Hereunto duly authorized
(attach corporate vote)
7
EXHIBIT A
The Premises are shown as the shaded areas on the attached plan.
[Diagram of Premises]
8
EXHIBIT B
Landlord's Work
Connector portion of the Building
---------------------------------
Install refurbished Xxxxxx Xxxxxx partition cubicles, 5' high with 30" work
surface, including corner surfaces, 2 flipper files with lights under, 2
pedestal files, pencil drawer, keyboard drawer, cabled and powered per
specifications to be attached
Manufacturing portion of the Building
-------------------------------------
Install refurbished Xxxxxx Xxxxxx partition cubicles, 5' high with 30" work
surface, including corner surfaces, 2 flipper files with lights under, 2
pedestal files, pencil drawer, keyboard drawer, cabled and powered per
specifications to be attached
new carpet to match existing carpet in manufacturing building
paint walls and ceiling
build out office area in computer room with demountable walls, cabled and
powered per specifications to be attached
Except for the foregoing Landlord's Work, the Premises are leased to Tenant
in "AS IS" and "WHERE IS" condition, without representation or warranty of any
kind.
9
EXHIBIT C
Tenant's Work
All work, other than Landlord's Work, required by Tenant for Tenant's use
and occupancy.
10
Expansion Notice
Pursuant to your letter dated December 5, 1996 and the Lease, by and between
Peritus Software Services, Inc., and Wang Laboratories, Inc., dated 2/1/95 as
amended, Peritus hereby notifies Wang that it desires to exercise its option by
expanding its Premises by including a portion of the Expansion Premises in the
amount of 4,000 leaving a 3,974 sf residual to be exercised with prior written
notice to the Landlord on or before the anniversary date of this Amendment.
Peritus desires to include the amortization of the TI's as additional monthly
rent.
Tenant:
Peritus Software Services, Inc.
By: /s/ Xxxx X. Xxxxxxx
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Its: Director of Finance and Treasurer
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Date: 2/13/97
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