LEASE
THIS LEASE is dated as of December 15/th/, 2000 between the Landlord and the
Tenant named below, and is of space in the Building described below.
ARTICLE 1
BASIC DATA: DEFINITIONS
-----------------------
1.1 Basic Data. Each reference in this Lease to any of the following terms
----------
shall be construed to incorporate the data for that term set forth in this
Section:
Landlord: BCIA New England Holdings LLC, a Delaware limited liability
company
Landlord's Address: c/o Boston Capital Institutional Advisors LLC, Xxx
Xxxxxx Xxxxx, Xxxxxx, XX 00000
Tenant: TeleHublink Corporation, a Delaware corporation
Tenant's Address: 24 New England Executive Park, Xxxxxxxxxx, XX 00000
Guarantor: N/A
Property: The land located in Andover, Massachusetts, together with the
Building and other improvements thereon.
Building: The three-story building commonly known and numbered as One
Andover Tech Center.
Building Rentable Area: Agreed to be 98,069 square feet.
Premises: The portion of the Building shown on the location plan attached
hereto as Exhibit A, located on the first floor of the Building.
Premises Rentable Area: Agreed to be 5,600 square feet.
Basic Rent: The Basic Rent is as follows:
------------------------------------------------------------------------
RENTAL PERIOD ANNUAL BASIC MONTHLY RENTAL RATE
RENT PAYMENT (per square foot)
------------------------------------------------------------------------
------------------------------------------------------------------------
Lease Year 1 $ 168,000.00 $ 14,000.00 $ 30.00
------------------------------------------------------------------------
Lease Year 2 $ 173,600.00 $ 14,466.67 $ 31.00
------------------------------------------------------------------------
Lease Year 3 $ 179,200.00 $ 14,933-33 $ 32.00
------------------------------------------------------------------------
Lease Year 4 $ 184,800.00 $ 15,400.00 $ 33.00
------------------------------------------------------------------------
Lease Year 5 $ 190,400.00 $ 15,866.67 $ 34.00
------------------------------------------------------------------------
Base Year For Operating Expenses: Calendar year 2000.
Base Year for Taxes: The twelve month period beginning July 1,2000.
Tenant's Proportionate Share: 5.71% (which is based on the ratio of (a)
Premises Rentable Area to (b) Building Rentable Area).
Security Deposit: Letter of Credit in the amount of $134,400.00 (subject to
the terms and provisions of Section 14.8 of this Lease).
Scheduled Commencement Date: December 15, 2000.
Term: Five (5) years, commencing on the Commencement Date md expiring at
the close of the day immediately preceding the fifth anniversary of the
Commencement Date, except that if the Commencement Date is other than the first
day of a calendar month, the expiration of the Term shall be at the close of
the last day of the calendar month in which such anniversary falls. The Term
shall include any extension thereof that is expressly provided for by this Lease
and that is effected strictly in accordance with this Lease; if no extension of
the Term is expressly provided for by this Lease, no right to extend the Term
shall be implied by this provision.
Initial General Liability Insurance: $2,000,000.00 per
occurrence/$3,000,000.00 aggregate (combined single limit) for property damage,
bodily injury or death.
Permitted Uses: Executive and general offices and uses accessory thereto.
Cost of Tenant's Electricity for Lights & Plugs: $7,000.00 per year (based
on $1.25 per rentable square foot). Landlord expressly reserves the right to
install, at Tenant's sole cost and expense, a check meter in the Premises to
measure any unusual consumption of electricity and Landlord also expressly
reserves the right to periodically adjust the cost for electricity according to
market conditions.
Construction Deadline: N/A
Landlord's Contribution: Up to a maximum of $8,000.00 (to be used for
Leasehold Improvements to the Premises only, not toward fixtures or equipment).
Landlord's Construction Representative: Xxxxx X. Xxxxxxxx.
Tenant's Construction Representative: N/A
1.2 Definitions. When used in Lease, the capitalized terms set forth
-----------
below shall bear the meanings set forth below.
Adequate Assurance: As defined in Section 14.1.
Adequate Assurance of Future Performance: As defined in Section 14.1.
Additional Rent: All charges and sums payable by Tenant as set forth in
this Lease, other than and in addition to Basic Rent.
Agent: BCIA Property Management LLC, or such other person or entity from
time to time designated by Landlord.
Alterations: As defined in Section 5.2.
-2-
Bankruptcy Code: As defined in Section 14.1.
Base Operating Expenses: Actual Operating Expenses for the Base Year for
Operating Expenses.
Base Taxes: Actual Taxes assessed for the Base Year for Taxes.
Base Year for Operating Expenses: As defined in Section 1.1.
Base Year for Taxes: As defined in Section 1.1.
Basic Rent: As defined in Section 1.1.
Broker: Xxxxxxx & Wakefield of Massachusetts, Inc. and Xxxxxxxx & Grew
Incorporated
Building: As defined in Section 1.1.
Building Rentable Area: As defined in Section 1.1.
Business Day: Al1 days except Saturdays, Sundays, and other days when
national banks in the state in which the property is located are not open for
business.
Commencement Date: As defined in Section 4.1.
Common Facilities: As defined in Section 2.2.
Construction Deadline: As defined in Section 1.1.
Cost of Tenant's Electricity for Lights & Plugs: As defined in Section 1.1.
Default of Tenant: As defined in Section 14.1.
Environmental Condition: Any disposal, release or threat of release of
Hazardous Materials on, from or about the Building or the Property or storage of
Hazardous Materials on, from or about the Building or the Property.
Environmental Laws: Any federal, state and/or local statute, ordinance,
bylaw, code, rule and/or regulation now or hereafter enacted, pertaining to any
aspect of the environment or human health, including, without limitation,
Chapter 21C, Chapter 21D, and Chapter 21E of the General Laws of
Massachusetts and the regulations promulgated by the Massachusetts
Department of Environmental Protection, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980,42 X.XX (S) 9601 et seq.,
the Resource Conservation and Recovery Act of 1976,42 U.S.C. (S)6901 et seq.,
the Toxic Substances Control Act, 15 U.S.C. (S)2061 et seq., the Federal Clean
Xxxxx Xxx, 00 X.X.X. (X)0000, and the Federal Clean Air Act, 42 X.X.X, (X)0000
et seq.
Essential Services: As defined in Section 7.6.
Event of Bankruptcy: As defined in Section 14.1.
Force Majeure: Collectively and individually, strikes or other labor
trouble, fire or other casualty, acts of God, governmental preemption of
priorities or other controls in connection with a national or other public
emergency or shortages of fuel, supplies of labor resulting therefrom,
-3-
or any other cause, whether similar or dissimilar, beyond the reasonable control
of the party required to perform an obligation.
Guarantor: As defined in Section 1.1.
Holder: As defined in Section 13.1.
Hazardous Materials: Shall mean each and every element, compound, chemical
mixture, contaminant, pollutant, material, waste or other substance which is
defined, determined or identified as hazardous or toxic under any Environmental
Law, including, without limitation, any "oil," "hazardous material," "hazardous
waste," "hazardous substance" or "chemical substance or mixture", as the
foregoing terms (in quotations) are defined in any Environmental Laws.
Initial General Liability Insurance: As defined in Section 1.1.
Land: The land that constitutes a portion of the Property.
Landlord: As defined in Section 1.1.
Landlord's Construction Representative: As defined in Section 1.1.
Landlord's Contribution: As defined in Section 1.1.
Landlord's Address: As defined in Section 1.1.
Landlord's Work: N/A
Leasehold Improvements: As defined in Section 4.2.
Lease Year: Each consecutive 12 calendar month period immediately following
the Commencement Date, but if the Commencement Date shall fall on other
than the first day of a calendar month, then such term shall mean each
consecutive twelve calendar month period commencing with the first day of
the first full calendar month of the Initial Term. The first lease year
shall include any partial month between the Commencement Date and the first
day of the first full calendar month immediately following the Commencement
Date.
Mortgage: As defined in Section 13.1.
Operating Expenses: As defined in Section 9.1.
Operating Year: As defined in Section 9.1.
Permitted Uses: As defined in Section 1.1.
Plans: As defined in Section 4.2.
Premises: As defined in Section 1.1.
Premises Rentable Area: As defined in Section 1.1.
Property: As defined in Section 1.1.
Recapture Date: As defined in Section 6.4.
-4-
Rules and Regulations: As defined in Section 2.2.
Scheduled Commencement Date: As defined in Section 1.1.
Security Deposit: As defined in Section 1.1.
Service Interruption: As defined in Section 7.6.
Substantial Completion: N/A
Substantial Completion Date: As defined in Section 4.2.
Successor: As defined in Section 13.1.
Taxes: As defined in Section 8.1.
Tax Year: As defined in Section 8.1.
Tenant: As defined in Section 1.1.
Tenant's Address: As defined in Section 1.1.
Tenant's Delay: N/A
Tenant's Proportionate Share: As defined in Section 1.1.
Tenant's Removable Property: As defined in Section 5.2.
Term: As defined in Section 1.1.
Termination Date: As defined in Section 15.5.
1.3 Enumeration of Exhibits. The following Exhibits are a part of this
-----------------------
Lease, are incorporated herein by reference attached hereto, and are to be
treated as a part of this Lease for all purposes. Undertakings contained in such
Exhibits are agreements on the part of Landlord and Tenant, as the case may be,
to perform the obligations stated therein.
Exhibit A - Location Plan of the Premises
Exhibit B - Intentionally Omitted
Exhibit C - Commencement Date Letter
Exhibit D - Operating Expenses
Exhibit E - Rules and Regulations
-5-
ARTICLE 2
PREMISES AND APPURTENANT RIGHTS
-------------------------------
2.1 Lease of Premises. Subject to the complete satisfaction of the
-----------------
"Leasing Conditions (as said term is hereinafter defined), Landlord hereby
leases to Tenant and Tenant hereby leases from Landlord, for the Term, and upon
the terms, conditions, covenants and agreements herein provided, the Premises.
As used herein, the term "Leasing Conditions" shall mean: (i) the Landlord and
the "Existing Tenant" (as said term is hereinafter defined) shall execute and
deliver a Lease Termination Agreement, in form and substance satisfactory to
Landlord, in its sole and absolute discretion, which terminates the "Existing
Lease" (as said term is hereinafter defined) of the Premises; (ii) the "Existing
Tenant" and the "Existing Subtenant" (as said terms are hereinafter defined)
currently in possession of the Premises shall voluntarily surrender to the
Landlord all of their right, title and interest in the Premises prior to the
Commencement Date, (iii) the Existing Tenant and the Existing Subtenant shall
voluntarily vacate the Premises and remove all of their personal property and
equipment from the Premises prior to the Commencement Date, (iv) the Landlord
shall be in possession of the Premises prior to the Commencement Date and (v)
the Landlord shall not be liable to Tenant for any reason whatsoever if the
Existing Tenant or the Existing Subtenant continues to hold over. As used
herein, the term "Existing Lease" shall mean that certain Lease dated November
6, 1995 by and between MGI Chelmsford Corp., the predecessor in interest to the
Landlord, and Xxxxxx, Inc., as affected by that certain Assignment and
Assumption of Lease dated as of October 11, 1996 by and between Xxxxxx, Inc. and
AEP Industries Inc. (the "Existing Tenant"). As used herein, the term "Existing
Subtenant" shall mean Target Industries, Inc. also known as Target Technologies.
2.2 Appurtenant Rights and Reservations.
-----------------------------------
(a) Tenant shall have, as appurtenant to the Premises, the non-
exclusive right to use, and permit its invitees to use in common with Landlord
and others, (i) public or common lobbies, hallways, stairways, elevators and
common walkways necessary for access to the Building and the Premises, and if
the portion of the Premises on any floor includes less than the entire floor,
the common toilets, corridors and elevator lobby of such floor; and (ii) the
access roads, driveways, parking areas, loading areas, pedestrian sidewalks,
landscaped areas, trash enclosures, recreation areas and other areas or
facilities, if any, which are located in or on the Property and designated by
Landlord from time to time for the non-exclusive use of tenants and other
occupants of the Building (the "Common Facilities"); but such rights shall
always be subject to reasonable rules and regulations from time to time
established by Landlord pursuant to Section 15.7 (the "Rules and Regulations")
and to the right of Landlord to designate and change from time to time areas and
facilities so to be used, provided that Landlord's designation or change of the
Common Facilities does not unreasonably interfere with Tenant's use and
enjoyment of the Premises for the Permitted Uses.
(b) Excepted and excluded from the Premises and the Common Facilities
are the ceiling, floor, perimeter walls and exterior windows (except the inner
surface of each thereof), and any space in the Premises used for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, but the entry doors (and related glass and finish work) to
the Premises are a part thereof. Landlord shall have the right to place in the
Premises (but in such manner as to reduce to a minimum interference with
Tenant's use of the Premises) interior storm windows, sun control devices,
utility lines, equipment, stacks, pipes, conduits, ducts and the like. In the
event that Tenant shall install any hung ceilings or walls in the Premises,
Tenant shall install and maintain, as Landlord may require, proper access panels
therein to afford access to any facilities above the ceiling or within or behind
the walls. Tenant shall be entitled to install any such ceilings or walls only
in compliance with the other terms and conditions of this Lease.
-6-
(c) Intentionally Omitted.
(d) Landlord shall cause Tenant's name to be listed on the building
directory in the Building lobby.
ARTICLE 3
BASIC RENT
----------
3.1 Payment.
-------
(a) Tenant agrees to pay the Basic Rent and Additional Rent to
Landlord, or as directed by Landlord, commencing on the Commencement Date,
without offset, abatement (except as provided in Section 11.1), deduction or
demand. Basic Rent shall be payable in equal monthly installments, in advance,
on the first day of each and every calendar month during the Term of this Lease,
to Landlord at Landlord's Address or at such other place as Landlord shall from
time to time designate by notice, in lawful money of the United States. In the
event that any installment of Basic Rent or any regularly scheduled payment of
Additional Rent is not paid within five (5) days after such payment is due,
Tenant shall pay, in addition to any charges under Section 14.4, at Landlord's
request an administrative fee equal to 5% of the overdue payment plus interest
on the overdue payment at twelve (12%) percent per annum until paid in full.
Landlord and Tenant agree that all amounts due from Tenant under or in respect
of this Lease, whether labeled Basic Rent, Additional Rent or otherwise, shall
be considered as rental reserved under this Lease for all purposes, including
without limitation regulations promulgated pursuant to the Bankruptcy Code, and
including further without limitation Section 502(b) thereof.
(b) Basic Rent for any partial month shall be pro-rated on a daily
basis, and if the first day on which Tenant must pay Basic Rent shall be other
than the first day of a calendar month, the first payment which Tenant shall
make to Landlord shall be equal to a proportionate part of the monthly
installment of Basic Rent for the partial month from the first day on which
Tenant must pay Basic Rent to the last day of the month in which such day
occurs, plus the installment of Basic Rent for the succeeding calendar month.
ARTICLE 4
COMMENCEMENT AND CONDITION
--------------------------
4.1 Commencement Date. The "Commencement Date" shall be December 15,
-----------------
2000.
Notwithstanding the foregoing, if Tenant's personnel shall occupy all or any
part of the Premises for the conduct of its business prior to the Commencement
Date as determined pursuant to the preceding sentence, such date of occupancy
shall, for all purposes of this Lease, be the Commencement Date. Promptly upon
the occurrence of the Commencement Date, Landlord and Tenant shall execute a
letter substantially in the form attached hereto as Exhibit C, but the failure
by either party to execute such a letter shall have no effect on the
Commencement Date, as hereinabove determined.
4.2 Preparation of the Premises.
---------------------------
Except for Landlord's Contribution in no event shall Landlord be required
to make and/or pay for any work, alterations or improvements in and to the
Premises. Except for Landlord's Contribution, all such work and improvements
shall be performed and paid for by Tenant at Tenant's sole cost, risk and
expense.
-7-
Landlord shall contribute to the costs and expenses associated with the
leasehold improvements to the Premises (the "Leasehold Improvements") a sum not
to exceed the Landlord's Contribution. Landlord shall reimburse Tenant for the
costs incurred by the Tenant with respect to the Leasehold Improvements
(the "Cost of the Leasehold Improvements") up to the mount of Landlord's
Contribution, subject to the provisions hereof. To the extent that the Cost of
the Leasehold Improvements exceeds the Landlord's Contribution, Tenant Shall be
entirely responsible for such excess. Landlord's Contribution shall be payable
by Landlord to Tenant (or, at Tenant's election, directly to Tenant's
contractor) upon written requisition to Landlord in installments according to
reasonable construction disbursement procedures, as the Leasehold Improvements
progress. In any case, prior to payment of my such installment Tenant shall
deliver to Landlord a written request, which request shall be given no more
frequently than once every thirty (30) days, for such disbursement, which shall
be accompanied by: (i) invoices for the Leasehold Improvements not covered by
any previous requisition and (ii) copies of partial lien waivers or final lien
waivers, as applicable. Tenant agrees to pay promptly and completely when due
the entire cost of the Leasehold Improvements by Tenant, its agents, employees,
or independent contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to attach to the
Premises, the Building or the Property and immediately to discharge any such
liens which may so attach and, at the request of Landlord to deliver to Landlord
security satisfactory to Landlord against liens arising out of the furnishing of
such labor and material. Upon completion of the Leasehold Improvements by
Tenant, its agents, employees, or independent contractors, Tenant shall promptly
deliver to Landlord original lien releases and waivers executed by each
contractor, subcontractor, supplier, materialmen, architect, engineer or other
party which furnished labor, materials or other services in connection with such
work and pursuant to which all liens, claims and other rights of such party with
respect to labor, material or services furnished in connection with such work
are unconditionally released and waived. Tenant shall be responsible for the
payment of any costs and expenses related to the Leasehold Improvements which
exceed the Landlord's Contribution. Notwithstanding the foregoing to the
contrary, within sixty (60) days of Landlord's receipt of any paid invoice and a
copy of Tenant's cancelled check (front and back), Landlord shall reimburse
Tenant for the cost of any cubicles purchased by Tenant but, in no event, shall
any such reimbursement exceed $8,000.00, being the maximum amount of Landlord's
Contribution. Upon the expiration or any earlier termination of this Lease,
Tenant acknowledges and agrees that the cubicles shall remain with the Premises.
To the extent Tenant shall perform or cause to be performed any work
related to the Leasehold Improvements, Tenant shall not permit any mechanics'
lien, materialmen's lien, or any other lien to be filed against the Premises,
the Building, the Property or Landlord by reason of the Leasehold Improvements
or by reason of any other work performed by Tenant, Tenant's general contractor
or Tenant's subcontractors or suppliers, and Tenant shall, at its sole cost and
expense, case any such mechanics' lien, materialmen's lien, or any other lien to
be promptly paid in full and discharged. Except for (a) the willful acts or
omissions or (b) the gross negligence of Landlord, its employees, agents,
partners, contractors and subcontractors and their respective employees, agents
and contractors and to the extent the events below listed as items (i), (ii) and
(iii) arise in connection with any work related to the Leasehold Improvements
performed by Tenant, Tenant shall indemnify and hold Landlord harmless from and
against all, loss, cost, expense, liability and damage resulting from: (i) any
failure of Tenant to pay for the Leasehold Improvements, including, without
limitation, legal fees incurred by Landlord in connection with such failure to
pay for costs and expenses associated with the Leasehold Improvements and (ii)
any willful act, omission or negligence of Tenant or Tenant's general
contractor, or its subcontractors or their contractors, licensees, agents,
servants or employees arising from the performance of any work associated with
the Leasehold Improvements caused to any person or to the property of any
person, the Building or the Property and (iii) any physical damage or loss to
the Building or the Property by Tenant or by any person claiming by, through or
under Tenant, including, without limitation, Tenant's general contractor, its
subcontractors and
-8-
their respective agents, employees, contractors and customers or arising out of
any delivery to or service supplied to the Premises or on account of or based on
anything whatsoever done in the Property by any of them including, without
limitation, any loss, cost, damages or claims sustained or incurred by Landlord
as the direct result of any tenant of the Building claiming a breach of the
covenant of quiet enjoyment or an interference with ongoing business operations
as the result of the Leasehold Improvements. The indemnity contained in the
immediately preceding sentence shall survive any expiration or earlier
termination of this Lease.
4.3 Condition: Landlord's Performance. Tenant shall give Landlord notice,
---------------------------------
not later than two calendar months after the Commencement Date, of any respects
in which Landlord has not performed Landlord's Work fully, properly and in
accordance with the terms of this Lease. Except as identified in any such notice
from Tenant to Landlord, Tenant shall have no right to make any claim that
Landlord has failed to perform any of Landlord's Work fully, properly and in
accordance with the terms of this Lease or to require Landlord to perform any
further Landlord's Work. Except for Landlord's Work, the Premises are being
leased in their present condition, as is, without representation or warranty by
Landlord. Tenant acknowledges that it has inspected the Premises and Common
Facilities and, except for Landlord's Work, has found the same satisfactory.
ARTICLE 5
USE OF PREMISES
---------------
5.1 Permitted Use.
-------------
(a) Tenant agrees that the Premises shall be used and occupied by
Tenant only for Permitted Uses and for no other use without Landlord's express
written consent.
(b) Tenant agrees to conform to the following provisions during the
Term of this Lease:
(i) Tenant shall cause all freight to be delivered to or removed
from the Building and the Premises in accordance with the Rules and
Regulations reasonably established by Landlord therefor;
(ii) Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of doors and interior
surfaces of windows) or on any part of the Building outside the Premises,
any sign, symbol, advertisement or the like visible to public view outside
of the Premises. Landlord will not withhold consent for signs or lettering
on the entry doors to the Premises provided such signs conform to sign
standards for the building adopted by Landlord in its sole discretion and
Tenant has submitted to Landlord a plan or sketch in reasonable detail
(showing, without limitation, size, color, location, materials and method of
affixation) of the sign to be placed on such entry doors. Landlord agrees,
however, to maintain a tenant directory in the lobby of the Building (and,
in the case of multi-tenant floors, in that floor's elevator lobby) in which
will be placed Tenant's name and the location of the Premises in the
Building;
(iii) Tenant shall not perform any act or carry on any practice
which may injure the Premises, or any other part of the Building, or cause
any offensive odors or loud noise or constitute a nuisance or a menace to
any other tenant or tenants or other persons in the Building;
(iv) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and regulations,
including,
-9-
without limitation, the Americans With Disabilities Act of 1990 and the
regulations of the Massachusetts Architectural Access Board; and
(v) Tenant shall not abandon the Premises.
5.2 Installations and Alterations by Tenant.
---------------------------------------
(a) Tenant shall make no alterations, additions (including, for the
purposes hereof, wall-to-wall carpeting), or improvements (collectively,
"Alterations") in or to the Premises (including any Alterations, other than
Landlord's Work, necessary for Tenant's initial occupancy of the Premises)
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed with respect to non-structural Alterations that
do not affect or involve the Building's electrical, plumbing or mechanical
systems or any other Building systems. Notwithstanding the foregoing, Tenant
shall have the right to make interior, non-structural alterations costing less
than $5,000.00 per project without Landlord's consent. Any Alterations shall be
in accordance with the Rules and Regulations in effect with respect thereto and
with plans and specifications meeting the requirements set forth in the Rules
and Regulations and approved in advance by Landlord. All work shall be (i) be
performed in a good and workmanlike manner and in compliance with all applicable
laws, ordinances and regulations; (ii) be made at Tenant's sole cost and
expense; (iii) become part of the Premises and the property of Landlord; and
(iv) be coordinated with any work being performed by Landlord in such a manner
as not to damage the Building or unreasonably interfere with the construction or
operation of the Building. At Landlord's reasonable request, Tenant shall,
before its work is started, secure assurances satisfactory to Landlord in its
reasonable discretion protecting Landlord against claims arising out of the
furnishing of labor and materials for the Alterations.
If any Alterations shall involve the removal of fixtures, equipment or
other property in the Premises which are not Tenant's Removable Property, such
fixtures, equipment or property shall be promptly replaced by Tenant at its
expense with new fixtures, equipment or property of like utility and of at least
equal quality.
(b) All articles of personal property and all business fixtures,
machinery and equipment and furniture owned or installed by Tenant solely at
its expense in the Premises ("Tenant's Removable Property") shall remain the
property of Tenant and may be removed by Tenant at any time prior to the
expiration or earlier termination of the Term, provided that Tenant, at its
expense, shall repair any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
Premises, the Building or the Property. To the maximum extent permitted by law,
before such time as any contractor commences to perform work on behalf of
Tenant, such contractor (and any subcontractors) shall furnish a written
statement acknowledging the provisions set forth in the prior clause. Tenant
agrees to pay promptly when due the entire cost of any work done on behalf of
Tenant, its agents, employees or independent contractors, and not to cause or
permit any liens for labor or materials performed or furnished in connection
therewith to attach to all or any part of the Property and immediately to
discharge any such liens which may so attach. If, notwithstanding the foregoing,
any lien is filed against all or any part of the Property for work claimed to
have been done for, or materials claimed to have been furnished to, Tenant or
its agents, employees or independent contractors, Tenant, at its sole cost and
expense, shall cause such lien to be dissolved promptly after receipt of notice
that such lien has been filed, by the payment thereof or by the filing of a bond
sufficient to accomplish the foregoing. If Tenant shall fail to discharge any
such lien, Landlord may, at its option, discharge such lien and treat the cost
thereof (including attorneys' fees incurred in connection therewith) as
Additional Rent payable upon demand, it being expressly agreed that such
discharge by Landlord shall not
-10-
be deemed to waive or release the default of Tenant in not discharging such
lien. Tenant shall indemnify and hold Landlord harmless from and against any and
all expenses, liens, claims, liabilities and damages based on or arising,
directly or indirectly, by reason of the making of any alterations, additions or
improvements by or on behalf of Tenant to the Premises under this Section, which
obligation shall survive the expiration or termination of this Lease.
(d) In the course of any work being performed by Tenant (including,
without limitation, the "field installation" of any Tenant's Removable
Property), Tenant agrees to use labor compatible with that being employed by
Landlord for work in the Building or on the Property or other buildings owned by
Landlord or its affiliates (which term, for purposes hereof, shall include,
without limitation, entities which control or are under common control with or
are controlled by Landlord or, if Landlord is a partnership or limited liability
company, by any partner or member of Landlord) and not to employ or permit the
use of any labor or otherwise take any a&on which might result in a labor
dispute involving personnel providing services in the Building or on the
Property pursuant to arrangements made by Landlord.
5.3 Extra Hazardous Use. Tenant covenants and agrees that Tenant will not
-------------------
do or permit anything to be done in or upon the Premises, or bring in anything
or keep anything, therein, which shall increase the rate of property or
liability insurance on the Premises or the Property above the standard rate
applicable to Premises being occupied for the Permitted Uses. If the premium or
rates payable with respect to any policy or policies of insurance purchased by
Landlord or Agent with respect to the Property increases as a result of any act
or activity on or use of the Premises during the Term or payment by the insurer
of any claim arising from any act or neglect of Tenant, its employees, agents,
contractors or invitees, Tenant shall pay such increase, from time to time,
within fifteen (15) days after demand therefor by Landlord, as Additional Rent.
5.4 Hazardous Materials.
-------------------
(a) Tenant may use chemicals such as adhesives, lubricants, ink,
solvents and cleaning fluids of the kind and in amounts and in the manner
customarily found and used in business offices in order to conduct its business
at the Premises and to maintain and operate the business machines located in the
Premises. Tenant shall not use, store, handle, treat, transport, release or
dispose of any other Hazardous Material on or about the Premises or the
Property without Landlord's prior written consent, which Landlord may withhold
or condition in Landlord's sole discretion.
(b) Any handling, treatment, transportation, storage, disposal or use
of Hazardous Materials by Tenant in or about the Premises or the Property and
Tenant's use of the Premises shall comply with all applicable Environmental
Laws.
(c) Tenant shall indemnify, defend upon demand with counsel
reasonably acceptable to Landlord, and hold Landlord harmless from and against,
any liabilities, losses claims, damages, interest, penalties, fines, attorneys'
fees, experts' fees, court costs, remediation costs, and other expenses which
result from the use, storage, handling, treatment, transportation, release,
threat of release or disposal of Hazardous Materials in or about the Premises or
the Property by Tenant or Tenant's agents, employees, contractors or invitees.
(d) Tenant shall give written notice to Landlord as soon as
reasonably practicable of (i) any communication received by Tenant from any
governmental authority concerning, Hazardous Materials which relates to the
Premises or the Property, and (ii) any Environmental Condition of which Tenant.
is aware.
-11-
ARTICLE 6
ASSIGNMENT AND SUBLETTING
-------------------------
6.1 Prohibition.
------------
(a) Tenant covenants and agrees that neither this Lease nor the term
and estate hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred, whether voluntarily,
involuntarily, by operation of law or otherwise, and that neither the Premises
nor any part thereof will be encumbered in any manner by reason of any act or
omission on the part of Tenant, or used or occupied or permitted to be used or
occupied, by anyone other than Tenant, or for any use or purpose other than a
Permitted Use, or be sublet (which term, without limitation, shall include
granting of concessions, licenses and the like) in whole or in part, or be
offered or advertised for assignment or subletting by Tenant or any person
acting on behalf of Tenant, without, in each case, the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed. Without
limiting the foregoing, any agreement pursuant to which: (x) Tenant is relieved
from the obligation to pay, or a third party agrees to pay on Tenant's behalf,
all or any portion of the Basic Rent or Additional Rent under this Lease; and/or
(y) a third party undertakes or is granted by or on behalf of Tenant the right
to assign or attempt to assign this Lease or sublet or attempt to sublet all or
any portion of the Premises, shall for all purposes hereof be deemed to be an
assignment of this Lease and subject to the provisions of this Article 6. The
provisions of this paragraph (a) shall apply to a transfer (by one or more
transfers) of a controlling portion of or interest in the stock or partnership
or membership interests or other evidences of equity interests of Tenant as if
such transfer were an assignment of this Lease: provided that if equity
interests in Tenant at any time are or become traded on a public stock exchange,
the transfer of equity interests in Tenant on a public stock exchange shall not
be deemed an assignment within the meaning of this Article.
(b) The provisions of paragraph (a) shall not apply to either (x)
transactions with an entity into or with which Tenant is merged or consolidated,
or to which all or substantially all of Tenant's assets are transferred, or (y)
transactions with any entity which controls or is controlled by Tenant or is
under common control with Tenant; provided that in any such event:
(i) the successor to Tenant has a net worth sufficient to
satisfy Tenant's obligations under the Lease, subject to Landlord's
reasonable discretion.
(ii) proof satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction, and
(iii) the assignee agrees directly with Landlord, by written
instrument in form satisfactory to Landlord in its reasonable discretion,
to be bound by all the obligations of Tenant hereunder, including, without
limitation, the covenant against further assignment and subletting.
6.2 Acceptance of Rent. If this Lease be assigned, or if the Premises or
------------------
any part thereof be sublet or occupied by anyone other than Tenant, whether or
not in violation of the terms and conditions of the Lease, Landlord may, at any
time and from time to time, collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to the rent and
other charges herein reserved, but no such assignment, subletting, occupancy,
collection or modification of any provisions of this Lease shall be deemed a
waiver of this covenant, or the acceptance of the assignee, subtenant or
occupant as a tenant or a release of Tenant from the further performance of
covenants on the part of Tenant to be performed hereunder. Any consent by
Landlord to a particular assignment, subletting or occupancy or other act for
which Landlord's consent is required under paragraph (a) of Section 6.1 shall
not in any
-12-
way diminish the prohibition stated in paragraph (a) of Section 6.1 as to any
further such assignment, subletting or occupancy or other act or the continuing
liability of the original named Tenant. No assignment or subletting hereunder
shall relieve Tenant from its obligations hereunder, and Tenant shall remain
fully and primarily liable therefor. Landlord may revoke any consent by Landlord
to a particular assignment, subletting or occupancy if the assignment or
sublease does not provide that the assignee, subtenant or other occupant agrees
to be independently bound by and upon all of the covenants, agreements, terms,
provisions and conditions set forth in this Lease on the part of Tenant to be
kept and performed.
6.3 Excess Payments. If Tenant assigns this Lease or sublets the Premises
---------------
or any portion thereof, Tenant shall pay to Landlord as Additional Rent fifty
percent (50%) of the amount, if any, by which (a) any and all compensation
received by Tenant as a result of such assignment or subletting, net of
reasonable expenses actually incurred by Tenant in connection with such
assignment or subletting, exceeds (b) in the case of an assignment; the Basic
Rent and Additional Rent under this Lease, and in the case of a subletting, the
portion of the Basic Rent and Additional Rent allocable to the portion of the
Premises subject to such subletting. Such payments shall be made on the date the
corresponding payments under this Lease are due. Notwithstanding the foregoing,
the provisions of this Section shall impose no obligation on Landlord to consent
to an assignment of this Lease or a subletting of all or a portion of the
Premises.
6.4 Landlord's Recapture Right. Notwithstanding anything herein to the
--------------------------
contrary, in addition to withholding or granting consent with respect to any
proposed assignment of this Lease or proposed sublease of all or a portion of
the Premises, Landlord shall have the right, to be exercised in writing within
thirty (30) days after written notice from Tenant seeking Landlord's consent to
assign this Lease or sublease all or any portion of the Premises, to terminate
this Lease (in the event of a proposed assignment) or recapture that portion of
the Premises to be subleased (in the event of a proposed sublease). In the case
of a proposed assignment, this Lease shall terminate as of the date (the
"Recapture Date") which is the later of (a) sixty (60) days after the date of
Landlord's election, and (b) the proposed effective date of such assignment or
sublease, as if such date were the last day of the Term of this Lease. If
Landlord exercises the rights under this Section in connection with a proposed
sublease, this Lease shall be deemed amended to eliminate the proposed sublease
premises from the Premises as of the Recapture Date, and thereafter all Basic
Rent and Additional Rent shall be appropriately prorated to reflect the
reduction of the Premises as of the Recapture Date.
6.5 Further Requirements. Tenant shall reimburse Landlord on demand, as
--------------------
Additional Rent, for any out-of-pocket costs (including reasonable attorneys'
fees and expenses) incurred by Landlord in connection with any actual or
proposed assignment or sublease or other act described in paragraph (a) of
Section 6.1, whether or not consummated, including the costs of making
investigations as to the acceptability of the proposed assignee or subtenant.
Any sublease to which Landlord gives its consent shall not be valid or binding
on Landlord unless and until Tenant and the sublessee execute a consent
agreement in form and substance satisfactory to Landlord in its reasonable
discretion and a fully executed counterpart of such sublease has been delivered
to Landlord. In the event that Landlord consents to any sublease under the
provisions of this Article, the sublease shall provide that: (i) the term of the
sublease must end no later than one day before the last day of the Term of this
Lease; (ii) such sublease is subject and subordinate to this Lease; (iii)
Landlord may enforce the provisions of the sublease, including collection of
rents; and (iv) in the event of termination of this Lease or reentry or
repossession of the Premises by Landlord, Landlord may, at its sole discretion
and option, take over all of the right, title and interest of Tenant, as
sublessor, under such sublease, and such subtenant shall, at Landlord's option,
attorn to Landlord, but nevertheless Landlord shall not (A) be liable for any
previous act or omission of Tenant under such sublease; (B) be subject to any
defense or offset previously accrued in favor of the subtenant against Tenant;
or (C) be bound by any previous
-13-
modification of such sublease made without Landlord's written consent or by any
previous prepayment of more than one month's rent.
ARTICLE 7
RESPONSIBILITY FOR REPAIRS AND CONDITION
OF PREMISES, SERVICES TO BE FURNISHED BY LANDLORD
-------------------------------------------------
7.1 Landlord Repairs.
----------------
(a) Except as otherwise provided in this Lease, Landlord agrees to
keep in good order, condition and repair the roof, public areas, exterior walls
(including exterior glass) and structure of the Building (including all
plumbing, mechanical and electrical systems installed by Landlord, but
specifically excluding any supplemental heating, ventilation or air conditioning
equipment or systems installed at Tenant's request or as a result of Tenant's
requirements in excess of building standard design criteria), all insofar as
they affect the Premises, except that Landlord shall in no event be responsible
to Tenant for the repair of glass in the Premises, the doors (or related glass
and finish work) leading to the Premises, or any condition in the Premises or
the Building caused by any act or neglect of Tenant, its invitees or
contractors. Landlord shall also keep and maintain all Common Facilities in a
good and clean order, condition and repair, free of snow and ice and
accumulation of dirt and rubbish, and shall keep and maintain all landscaped
areas on the Property in a neat and orderly condition. Landlord shall not be
responsible to make any improvements or repairs to the Building other than as
expressly in this Section 7.1 provided, unless expressly provided otherwise in
this Lease.
(b) Landlord shall never be liable for any failure to make repairs
which Landlord has undertaken to make under the provisions of this Section 7.1
or elsewhere in this Lease, unless Tenant has given notice to Landlord of the
need to make such repairs, and Landlord has failed to commence to make such
repairs within a reasonable time after receipt of such notice, or fails to
proceed with reasonable diligence to complete such repairs.
7.2 Tenant Repairs.
--------------
(a) Tenant will keep the Premises and every part thereof neat and
clean, and will maintain the same in good order, condition and repair, excepting
only those repairs for which Landlord is responsible under the terms of this
Lease, reasonable wear and tear of the Premises, and damage by fire or other
casualty or as a consequence of the exercise of the power of eminent domain; and
Tenant shall surrender the Premises, at the end of the Term, in substantially
the same condition in which the Premises was delivered to Tenant. Without
limitation, Tenant shall comply with all laws, codes and ordinances from time to
time in effect and all directions, rules and regulations of governmental
agencies having jurisdiction, and the standards recommended by the local Board
of Fire Underwriters applicable to Tenant's use and occupancy of the Premises,
and shall, at Tenant's expense, obtain all permits, licenses and the like
required thereby. Subject to Section 10.4 regarding waiver of subrogation,
Tenant shall be responsible for the cost of repairs which may be made necessary
by reason of damage to the Building caused by any act or neglect of Tenant, or
its contractors or invitees (including any damage by fire or other casualty
arising therefrom).
(b) If repairs are required to be made by Tenant pursuant to the
terms hereof, and Tenant fails to make the repairs, upon not less than ten (10)
days' prior written notice (except that no notice shall be required in the event
of an emergency), Landlord may make or cause such repairs to be made (but shall
not be required to do so), and the provisions of Section 14.4 shall be
applicable to the costs thereof. Landlord shall not be responsible to Tenant for
any loss or damage whatsoever that may accrue to Tenant's stock or business by
reason of Landlord's making such repairs.
-14-
7.3 Floor Load - Heavy Machinery.
----------------------------
(a) Tenant shall not place a load upon any floor in the Premises
exceeding the floor load per square foot of area which such floor was designed
to carry and which is allowed by law. Landlord reserves the right to prescribe
the weight and position of all business machines and mechanical equipment,
including safes, which shall be placed so as to distribute the weight. Business
machines and mechanical equipment shall be placed and maintained by Tenant at
Tenant's expense in settings sufficient, in Landlord's judgment, to absorb and
prevent vibration, noise and annoyance. Tenant shall not move any safe, heavy
machinery, heavy equipment, freight, bulky matter or fixtures into or out of the
Building without Landlord's prior consent, which consent may include a
requirement to provide insurance, naming Landlord as an insured, in such amounts
as Landlord may deem reasonable.
(b) If any such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons holding
a Master Rigger's License to do such work, and that all work in connection
therewith shall comply with applicable laws and regulations. Any such moving
shall be at the sole risk and hazard of Tenant, and Tenant will exonerate,
indemnify and save Landlord harmless against and from any liability, loss,
injury, claim or suit resulting directly or indirectly from such moving.
7.4 Utility Services.
----------------
(a) Landlord shall, on Business Days from 8:00 a.m. to 6:00 p.m. and
Saturdays from 8:00 a.m. to 1:00 pm., furnish heating and cooling as normal
seasonal changes may require to provide reasonably comfortable space temperature
and ventilation for occupants of the Premises under normal business operation
and an electrical load not exceeding 3.0 xxxxx per square foot of Premises
Rentable Area. If Tenant shall require air conditioning, heating or ventilation
outside the hours and days above specified, Landlord may furnish such service
and Tenant shall pay therefor such charges as may from time to time be in effect
for the Building upon demand as Additional Rent. In the event Tenant introduces
into the Premises personnel or equipment which overloads the capacity of the
Building system or in any other way interferes with the system's ability to
perform adequately its proper functions, supplementary systems may, if and as
needed, at Landlord's option, be provided by Landlord, and the cost of such
supplementary systems shall be payable by Tenant to Landlord upon demand as
Additional Rent.
(b) Tenant shall be responsible for the payment of all utilities used
and consumed in the Premises. Tenant shall pay for all separately metered
utilities used and consumed in the Premises directly to the provider thereof.
Landlord shall charge Tenant the Cost of Tenant's Electricity for Lights and
Plugs set forth in Section 1.1 above, plus Tenant's Proportionate Share of the
electricity and natural gas used in connection with the HVAC system for the
Building. Landlord expressly reserves the right to periodically adjust the cost
for electricity according to market conditions. From time to time, but not more
than once per calendar month, Landlord shall invoice Tenant for electricity used
and consumed in the Premises as measured by the applicable method described
above. Tenant shall pay Landlord such amounts as Additional Rent hereunder
within thirty (30) days after receipt of each such invoice. The obligation to
pay for electricity used and consumed in the Premises during the last month of
the Term hereof shall survive expiration of the Term.
Landlord shall purchase and install, at Tenant's expense, all lamps, tubes,
bulbs, starters and ballasts. In order to assure that the foregoing requirements
are not exceeded and to avert possible adverse effect on the Building's electric
system, Tenant shall not, without Landlord's prior consent, connect any
fixtures, appliances or equipment to the Building's electric distribution system
other than personal computers, facsimile transceivers, typewriters, pencil
sharpeners, adding machines, photocopiers, word and data processors, clocks,
radios, hand-held or desk top
-15-
calculators, dictaphones, desktop computers, vending machines, microwave ovens
and other similar electrical equipment normally found in business offices and
not drawing more than 15 amps at 120/208 volts.
(c) From time to time during the Term of this Lease, Landlord shall
have the right to have an electrical consultant selected by Landlord make a
survey of Tenant's electric usage, the result of which survey shall be
conclusively binding upon Landlord and Tenant, provided, however, Landlord may
not conduct more than two (2) of such surveys in any calendar year. In the event
that such survey shows that Tenant has exceeded the requirements set forth in
paragraph (b), in addition to any other rights Landlord may have hereunder,
Tenant shall, upon demand, reimburse Landlord for the cost of such survey and
the cost, as determined by such consultant, of electricity usage in excess of
such requirements as Additional Rent. Tenant, at its sole cost and expense,
shall have the right to conduct its own survey in the event it disagrees with
Landlord's determination.
7.5 Other Services.
---------------
Landlord shall also provide:
(a) Passenger elevator service from the existing passenger elevator
system in common with Landlord and others entitled thereto.
(b) Warm water for lavatory purposes and cold water (at temperatures
supplied by the city in which the Property is located) for drinking, lavatory
and toilet purposes. If Tenant uses water for any purpose other than for
ordinary lavatory and drinking purposes, Landlord may assess a reasonable charge
for the additional water so used, or install a water meter and thereby measure
Tenant's water consumption for all purposes. In the latter event, Tenant shall
pay the cost of the meter and the cost of installation thereof as Additional
Rent upon demand and shall keep such meter and installation equipment in good
working order and repair. Tenant agrees to pay for water consumed, as shown on
such meter, together with the sewer charge based on such meter charges, as and
when bills are rendered, and in the event Tenant fails timely to make any such
payment, Landlord may pay such charges and collect the same from Tenant upon
demand as Additional Rent.
(c) Cleaning and janitorial services to the Premises, provided the
same are kept in order by Tenant, substantially in accordance with the cleaning
standards from time to time in effect for the Building.
(d) Access to the Premises at all times, subject to security
precautions from time to time in effect, if any, and subject always to
restrictions based on emergency conditions.
If and to the extent that Tenant desires to provide security for the Premises or
for such persons or their property, Tenant shall be responsible for so doing,
after having first consulted with Landlord and after obtaining Landlord's
consent, which shall not be unreasonably withheld. Landlord expressly disclaims
any and all responsibility and/or liability for the physical safety of Tenant's
property, and for that of Tenant's employees, agents, contractors and invitees,
and, without in any way limiting the operation of Article 10 hereof, Tenant, for
itself and its agents, contractors, invitees and employees, hereby expressly
waives any claim, action, cause of action or other right which may accrue or
arise as a result of any damage or injury to the person or property of Tenant or
any such agent, invitee, contractor or employee. Tenant agrees that, as between
Landlord and Tenant, it is Tenant's responsibility to advise its employees,
agents, contractors and invitees as to necessary and appropriate safety
precautions.
-16-
7.6 Interruption of Service.
------------------------
(a) Landlord reserves the right to curtail, suspend, interrupt and/or
stop the supply of water, sewage, electrical current, cleaning, and other
services, and to curtail, suspend, interrupt and/or stop use of entrances and/or
lobbies serving access to the Building, or other portions of the Property,
without thereby incurring any liability to Tenant, when necessary by reason of
accident or emergency, or for repairs, alterations, replacements or improvements
in the judgment of Landlord reasonably exercised desirable or necessary, or when
prevented from supplying such services or use due to any act or neglect of
Tenant or Tenant's agents employees, contractors or invitees or any person
claiming by, through or under Tenant or by Force Majeure, including, but not
limited to, strikes, lockouts, difficulty in obtaining materials, accidents,
laws or orders, or inability, by exercise of reasonable diligence, to obtain
electricity, water, gas, steam, coal, oil or other suitable fuel or power.
Except as set forth in paragraph (b) below, no diminution or abatement of rent
or other compensation, nor any direct, indirect or consequential damages shall
or will be claimed by Tenant as a result of, nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of, any such
interruption, curtailment, suspension or stoppage in the furnishing of the
foregoing services or use, irrespective of the cause thereof. Except as set
forth in paragraph (b) below, failure or omission on the part of Landlord to
furnish any of the foregoing services or use as provided in this paragraph shall
not be construed as an eviction of Tenant, actual or constructive, nor entitle
Tenant to an abatement of rent, nor to render the Landlord liable in damages,
nor release Tenant from prompt fulfillment of any of its covenants under this
Lease.
(b) Notwithstanding anything contained in this Lease to the contrary,
if (i) an interruption or curtailment, suspension or stoppage of an Essential
Service (as said term is hereafter defined) shall occur, except any of the same
due to any act or neglect of Tenant or Tenant's agents employees, contractors or
invitees or any person claiming by, through or under Tenant (any such
interruption of an Essential Service being hereinafter referred to as a "Service
Interruption"), and (ii) such Service Interruption occurs or continues as a
result of the negligence or a wrongful conduct of the Landlord or Landlord's
agents, servants, employees or contractors, and (iii) such Service Interruption
continues for more than thirty (30) Business Days after Landlord shall have
received notice thereof from Tenant, and (iv) as a result of such Service
Interruption, the conduct of Tenant's normal operations in the Premises we
materially and adversely affected, then there shall be an abatement of one day's
Basic Rent for each day during which such Service Interruption continues after
such thirty (30) Business Days period; provided, however, that if any part of
the Premises is reasonably useable for Tenant's normal business operations or if
Tenant conducts all or any part of its operations in any portion of the Premises
notwithstanding such Service Interruption, then the amount of each daily
abatement of Basic Rent and Additional Rent shall only be proportionate to the
nature and extent of the interruption of Tenant's normal operations or ability
to use the Premises. The rights granted to Tenant under this paragraph (b) shall
be Tenant's sole and exclusive remedy resulting from a failure of Landlord to
provide services, and Landlord shall not otherwise be liable for any loss or
damage suffered or sustained by Tenant resulting from any failure or cessation
of services. For purposes hereof, the term "Essential Services" shall mean the
following services: access to the Premises, water and sewer/septic service and
electricity, but only to the extent that Landlord has an obligation to provide
same to Tenant Under this Lease. Any abatement of Basic Rent under this
paragraph shall apply only with respect to Basic Rent allocable to the period
after each of the conditions set forth in subsections (i) through (iv) hereof
shall have been satisfied and only during such times as each of such conditions
shall exist.
-17-
ARTICLE 8
REAL ESTATE TAXES
-----------------
8.1 Payment on Account of Real Estate Taxes.
----------------------------------------
(a) "Tax Year" shall mean a twelve-month period commencing on July 1
and falling wholly or partially within the Term, and "Taxes" shall mean (i) all
taxes, assessments (special or otherwise), levies, fees and all other government
levies, exactions and charges of every kind and nature, general and special,
ordinary and extraordinary, foreseen and unforeseen, which are, at any time
prior to or during the Term, imposed or levied upon or assessed against the
Property or any portion thereof, or against any Basic Rent, Additional Rent or
other rent of any kind or nature payable to Landlord by anyone on account of the
ownership, leasing or operation of the Property, or which arise on account of or
in respect of the ownership, development, leasing, operation or use of the
Property or any portion thereof; (ii) all gross receipts taxes or similar taxes
imposed or levied upon, assessed against or measured by any Base Rent,
Additional Rent or other rent of any kind or nature or other sum payable to
Landlord by anyone on account of the ownership, development, leasing, operation,
or use of the Property or any portion thereof: (iii) all value added, use and
similar taxes at any time levied, assessed or payable on account of the
ownership, development, leasing, operation, or use of the Property or any
portion thereof; and (iv) reasonable expenses of any proceeding for abatement of
any of the foregoing items included in Taxes, provided Landlord prevails in such
abatement proceeding; but the amount of special taxes or special assessments
included in Taxes shall be limited to the amount of the installment (plus any
interest, other than penalty interest, payable thereon) of such special tax or
special assessment required to be paid during the year in respect of which such
Taxes are being determined. There shall be excluded from Taxes all income,
estate, succession, inheritance and transfer taxes of Landlord; provided,
however, that if at any time during the Term the present system of ad valorem
taxation of real property shall be changed so that a capital levy, franchise,
income, profits, sales, rental, use and occupancy, or other tax or charge shall
in whole or in part be substituted for, or added to, such ad valorem tax and
levied against, or be payable by, Landlord with respect to the Property or any
portion thereof, such tax or charge shall be included in the term "Taxes" for
the purposes of this Article.
(b) In the event that Taxes during any Tax Year shall exceed Base
Taxes, Tenant shall pay to Landlord, as Additional Rent, an amount equal to (i)
the excess of Taxes for such Tax Year over Base Taxes, multiplied by (ii)
Tenant's Proportionate Share, such amount to be apportioned for any portion of a
Tax Year in which the Commencement Date falls or the Term expires.
(c) Estimated payments by Tenant on account of Taxes shall be made on
the first day of each and every calendar month during the Term of this Lease, in
the fashion herein provided for the payment of Basic Rent. The monthly amount so
to be paid to Landlord shall be sufficient to provide Landlord by the time real
estate tax payments are due with a sum equal to Tenant's required payment, as
reasonably estimated by Landlord from time to time, on account of Taxes for the
then current Tax Year. Promptly after receipt by Landlord of bills for such
Taxes, Landlord shall advise Tenant of the amount thereof and the computation of
Tenant's payment on account thereof. If estimated payments theretofore made by
Tenant for the Tax Year covered by such bills exceed the required payment on
account thereof for such Tax Year, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant on account of Taxes (or
promptly refund such overpayment if the Term of this Lease has ended and Tenant
has no further obligation to Landlord); but if the required payments on account
thereof for such Tax Year are greater than estimated payments theretofore made
on account thereof for such Tax Year, Tenant shall pay the difference to
Landlord within thirty (30) days after being so advised by Landlord, and the
obligation to make such payment for any period within the Term shall survive
expiration of the Term.
-18-
Notwithstanding the foregoing, none of the following shall constitute Taxes for
the purposes of this Lease, and nothing contained herein shall be deemed to
require Tenant to pay any of the following: (i) any state, local, federal,
personal or corporate income tax measured by the income of Landlord; (ii) any
estate, inheritance taxes, or gross rental receipts tax; and (iii) any
franchise, succession or transfer taxes.
8.2 Abatement. If Landlord shall receive any tax refund or reimbursement
---------
of Taxes or sum in lieu thereof with respect to any Tax Year all or any portion
of which falls within the Term, then out of any balance remaining thereof after
deducting Landlord's expenses in obtaining such refund, Landlord shall pay to
Tenant, provided there does not then exist a Default of Tenant, an amount equal
to such refund or reimbursement or sum in lieu thereof (exclusive of any
interest, and apportioned if such refund is for a Tax Year a portion of which
falls outside the Term,) multiplied by Tenant's Proportionate Share; provided,
that in no event shall Tenant be entitled to receive more than the payments made
by Tenant on account of Taxes for such Tax Year pursuant to paragraph (b) of
Section 8.1 or to receive any payments or abatement of Basic Rent if Taxes for
any year are less than Base Taxes or if Base Taxes are abated. If Landlord shall
receive a tax refund or reimbursement with respect to the Base Taxes, Landlord
shall advise Tenant of the amount thereof and Tenant shall pay to Landlord,
within thirty (30) days after being so advised by Landlord, the difference
between the reduced Base Taxes and the amounts previously paid by Tenant for
each applicable prior Tax Year in the Term, and the obligation to make such
payment for any period within the Term shall survive expiration of the Term.
ARTICLE 9
OPERATING AND UTILITY EXPENSES
------------------------------
9.1 Definitions. "Operating Year" shall mean each calendar year all or any
-----------
part of which falls within the Term, and "Operating Expenses" shall mean the
aggregate costs and expenses incurred by Landlord with respect to the operation,
administration, cleaning, repair, maintenance and management of the Property,
all as set forth in Exhibit D attached hereto, provided that if during any
portion of the Operating Year for which Operating Expenses are being computed,
less than all of the Building was occupied by tenants or Landlord was not
supplying all tenants with the services being supplied under this Lease, actual
Operating Expenses incurred shall be extrapolated reasonably by Landlord on an
item by item basis to the estimated Operating Expenses that would have been
incurred if the Building were fully occupied for such Operating Year and such
services were being supplied to all tenants, and such extrapolated amount
shall, for the purposes hereof, be deemed to be the Operating Expenses for such
Operating Year.
9.2 Tenant's Payment of Operating Expenses.
--------------------------------------
(a) In the event that for any Operating Year Operating Expenses shall
exceed Base Operating Expenses, Tenant shall pay to Landlord, as Additional Rent
an amount equal to (i) such excess Operating Expenses multiplied by (ii)
Tenant's Proportionate Share, such amount to be apportioned for any portion of
an Operating Year in which the Commencement Date falls or the Term of this Lease
ends.
(b) Estimated payments by Tenant on account of Operating Expenses
shall be made on the first day of each and every calendar month during the Term
of this Lease, in the fashion herein provided for the payment of Basic Rent. The
monthly amount so to be paid to Landlord shall be sufficient to provide Landlord
by the end of each Operating Year a sum equal to Tenant's required payment, as
reasonably estimated by Landlord from time to time during each Operating Year,
on account of Operating Expenses for such Operating Year. After the end of each
Operating Year, Landlord shall submit to Tenant a reasonably detailed accounting
of
-19-
Operating Expenses for such Operating Year, and Landlord shall certify to the
accuracy thereof. If estimated payments theretofore made for such Operating Year
by Tenant exceed Tenant's required payment on account thereof for such Operating
Year according to such statement, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant with respect to Operating
Expenses (or promptly refund such overpayment if the Term of this Lease has
ended and Tenant has no further obligation to Landlord); but if the required
payments on account thereof for such Operating Year are greater than the
estimated payments (if any) theretofore made on account thereof for such
Operating Year, Tenant shall make payment to Landlord within thirty (30) days
after being so advised by Landlord, and the obligation to make such payment for
any period within the Term shall survive expiration of the Term.
(c) Provided that Tenant shall have first paid all amounts due and
payable by Tenant pursuant to this Article 9 and upon the written request of
Tenant (but not more than once with respect to any Operating Year), Tenant shall
be permitted to inspect Landlord`s books and records pertaining to Operating
Expenses applicable to the Property for such Operating Year. Such inspection
shall take place at a mutually agreeable time at the location where such books
and records are kept by the Landlord (or the Agent) in the ordinary course.
Tenant shall keep the results of any such inspection strictly confidential and
shall not be permitted to use any third party to perform such audit or
inspection, other than an independent firm of certified public accountants (A)
reasonably acceptable to Landlord, (B) which is not compensated on a contingency
fee basis or in any other manner which is dependent upon the results of such
audit or inspection (and Tenant shall deliver the fee agreement or other similar
evidence of such fee arrangement to Landlord upon request), and (C) which agrees
with Landlord in writing to maintain the results of such audit or inspection
confidential. Tenant may not conduct an inspection or have an audit performed
more than once during any Operating Year. Provided Landlord's accounting for
Operating Expenses is consistent with the terms of this Lease, Landlord's good
faith judgment regarding the proper interpretation of this Lease and the
proper accounting for Operating Expenses shall be binding on Tenant in
connection with any such audit or inspection. Failure of Tenant to provide
Landlord with a written request to review such books and records within 60 days
after receipt of a final statement pursuant to this Article 9 with respect to
each respective Operating Year shall be deemed a waiver of Tenant's rights
hereunder with respect to such Operating Year.
ARTICLE 10
INDEMNITY AND PUBLIC LIABILITY INSURANCE
----------------------------------------
10.1 Tenant's Indemnity. Except to the extent arising from the gross
------------------
negligence or willful misconduct of Landlord or its agents or employees, Tenant
agrees to indemnify and save harmless Landlord and Landlord's partners, members,
shareholders, officers, directors, managers, employees, agents and contractors
from and against all claims, losses, cost, damages, liability or expenses of
whatever nature arising: (i) from any accident, injury or damage whatsoever to
any person, or to the property of any person, occurring in or about the
Premises; (ii) from any accident, injury or damage whatsoever to any person, or
to property of any person, occurring outside of the Premises but on or about the
Property, where such accident, damage or injury results or is claimed to have
resulted from any act or omission on the part of Tenant or Tenant's agents,
employees, contractors, invitees or sublessees; or (iii) the use or occupancy of
the Premises or of any business conducted therein, and, in any case, occurring
after the Commencement Date until the expiration of the Term of this Lease and
thereafter so long as Tenant is in occupancy of any part of the Premises. This
indemnity and hold harmless agreement shall include indemnity against all
losses, costs, damages, expenses and liabilities incurred in or in connection
with any such claim or any proceeding brought thereon, and the defense thereof,
including, without limitation, reasonable attorneys' fees and costs at both the
trial and appellate
-20-
10.2 Tenant Insurance. Tenant agrees to maintain in full force from the
----------------
date upon which Tenant first enters the Premises for any reason, throughout the
Term of this Lease, and thereafter so long as Tenant is in occupancy of any part
of the Premises, a policy of commercial general liability and property damage
insurance (including broad form contractual liability, independent contractor's
hazard and completed operations coverage) under which Tenant is named as an
insured and Landlord, Agent (and such other persons as are in privity of estate
with Landlord as may be set out in a notice from time to time) are named as
additional insureds, and under which the insurer agrees to indemnify and hold
Landlord, Agent and those in privity of estate with Landlord, harmless from and
against all cost, expense and/or liability arising out of or based upon any and
all claims, accidents, injuries and damages set forth in Section 10.1. Tenant
may satisfy such insurance requirements by including the Premises in a so-called
"blanket" and/or "umbrella" insurance policy, provided that the amount of
coverage allocated to the Premises shall fulfill the requirements set forth
herein. Each policy required hereunder shall be non-cancelable and non-
amendable with respect to Landlord, Agent and Landlord's said designees without
thirty (30) days' prior notice, shall be written on an "occurrence" basis, and
shall be in at least the amounts of the Initial General Liability Insurance
specified in Section 1.1 or such greater amounts as Landlord in its reasonable
discretion shall from time to time request, and a duplicate original or
certificates thereof satisfactory to Landlord, together with a photocopy of the
entire policy, shall be delivered to Landlord.
10.3 Tenant's Risk. Tenant agrees to use and occupy the Premises and to
-------------
use such other portions of the Property as Tenant is herein given the right to
use at Tenant's own risk. Landlord shall not be liable to Tenant, its employees,
agents, invitees or contractors for any damage, injury, loss, compensation, or
claim (including, but not limited to, claims for the interruption of or loss to
Tenant's business) based on, arising out of or resulting from any cause
whatsoever, including, but not limited to, repairs to any portion of the
Premises or the Property, any fire, robbery, theft, mysterious disappearance
and/or any other crime or casualty, the actions of any other tenants of the
Building or of any other person or persons, or any leakage in any part or
portion of the Premises or the Building, or from water, rain or snow that may
leak into, or flow from any part of the Premises or the Building, or from
drains, pipes or plumbing fixtures in the Building, unless due to the gross
negligence or willful misconduct of Landlord or Landlord's agents, contractors
or employees. Any goods, property or personal effects stored or placed in or
about the Premises shall be at the sole risk of Tenant, and neither Landlord nor
Landlord's insurers shall in any manner be held responsible therefor.
Notwithstanding the foregoing, Landlord shall not be released from liability
for any injury, loss, damages or liability to the extent arising from any gross
negligence or willful misconduct of Landlord, its servants, employees or agents
acting within the scope of their authority on or about the Premises; provided,
however, that in no event shall Landlord, its servants, employees or agents
have any liability to Tenant based on any loss with respect to or interruption
in the operation of Tenant's business. Tenant shall carry "all-risk" property
insurance on a "replacement cost" basis, insuring Tenant's "Removable Property
and any Alterations made by Tenant pursuant to Section 5.2, to the extent that
the same have not become the property of Landlord.
10.4 Waive of Subrogation. The parties hereto shall each procure an
--------------------
appropriate clause in, or endorsement on, any property insurance policy on the
Premises or any personal property, fixtures or equipment located thereon or
therein, pursuant to which the insurer waives subrogation or consents to a
waiver of right of recovery in favor of either party, its respective agents or
employees. Having obtained such clauses and/or endorsements, each party hereby
agrees that it will not make any claim against or seek to recover from the other
or its agents or employees for any loss or damage to its property or the
property of others resulting from fire or other perils covered by such property
insurance.
-21-
ARTICLE 11
FIRE, EMINENT, DOMAIN, ETC.
---------------------------
11.1 Landlord's Right of Termination. If the Premises or the Building are
-------------------------------
substantially damaged by fire or casualty (the term "substantially damaged"
meaning damage of such a character that the same cannot, in the ordinary course,
reasonably be expected to be repaired within sixty (60) days from the time that
repair work would commence), or if any part of the Building is taken by any
exercise of the right of eminent domain, then Landlord shall have the right to
terminate this Lease (even if Landlord's entire interest in the Premises may
have been divested) by giving notice of Landlord's election so to do within
ninety (90) days after the occurrence of such casualty or the effective date of
such taking, whereupon this Lease shall terminate thirty (30) days after the
date of such notice with the same force and effect as if such date were the date
originally established as the expiration date hereof.
11.2 Restoration; Tenant's Right of Termination. If the Premises or the
------------------------------------------
Building are damaged by fire or other casualty, and this Lease is not terminated
pursuant to Section 12.1, Landlord shall thereafter use reasonable efforts to
restore the Building and the Premises (excluding any Alterations made by Tenant
pursuant to Section 5.2) to proper condition for Tenant's use and occupation,
provided that Landlord's obligation shall be limited to the amount of insurance
proceeds available therefor. If, for any reason, such restoration shall not be
substantially completed within four months after the expiration of the ninety-
day period referred to in Section 11.1 (which four-month period may be extended
for such periods of time as Landlord is prevented from proceeding with or
completing such restoration due to Force Majeure, but in no event for more than
an additional three months), Tenant shall have the right to terminate this Lease
by giving notice to Landlord thereof within thirty (30) days after the
expiration of such period (as so extended) provided that such restoration is not
completed within such period. This Lease shall cease and come to an end without
further liability or obligation on the part of either party thirty (30) days
after such giving of notice by Tenant unless, within such thirty-day period,
Landlord substantially completes such restoration. Such right of termination
shall be Ternant's sole and exclusive remedy at law or in equity for Landlord's
failure so to complete such restoration, and time shall be of the essence with
respect thereto.
11.3 Landlord's Insurance. Landlord agrees to maintain in full force and
--------------------
effect, during the Term of this Lease, property damage insurance with such
deductibles and in such amounts as may from time to time be carried by
reasonably prudent owners of similar buildings in the area in which the Property
is located, provided that in no event shall Landlord be required to carry other
than fire and extended coverage insurance or insurance in amounts greater than
80% of the actual insurable cash value of the Building (excluding footings and
foundations). Landlord may satisfy such insurance requirements by including the
Property in a so-called "blanket" insurance policy, provided that the amount of
coverage allocated to the Property shall fulfill the foregoing requirements.
11.4 Abatement of Rent. If the Premises or the Building are damaged by
-----------------
fire or other casualty, Basic Rent and Additional Rent payable by Tenant shall
xxxxx proportionately for the period during which, by reason of such damage,
there is substantial interference with Tenant's use of the Premises, having
regard for the extent to which Tenant may be required to discontinue Tenant's
use of all or an undamaged portion of the Premises due to such damage, but such
abatement or reduction shall end if and when Landlord shall have substantially
completed sufficient restoration that Tenant is reasonably able to use the
Premises and the Premises are in substantially the condition in which they were
prior to such damage (excluding any Alterations made by Tenant pursuant to
Section 5.2). If the Premises shall be affected by any exercise of the power of
eminent domain, Basic Rent and Additional Rent payable by Tenant shall be justly
and equitably abated and reduced according to the nature and extent of the loss
of use thereof suffered by Tenant. In no event shall Landlord have any liability
for damages to Tenant for
-22-
incovenience, annoyance, or interruption of business arising from any fire
or other casualty or eminent domain.
11.5 Condemnation Award. Landlord shall have and hereby reserves and
------------------
excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover
for damages to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of any taking, by exercise
of the right of eminent domain, and by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and assign to
Landlord, all rights to such damages or compensation, and covenants to deliver
such further assignments and assurances thereof as Landlord may from time to
time request, and Tenant hereby irrevocably appoints Landlord its attorney-in-
fact to execute and deliver in Tenant's name all such assignments and
assurances. Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceedings a claim for the value of any of
Tenant's Removable Property installed in the Premises by Tenant at Tenant's
expense and for relocation expenses, provided that such action shall not affect
the amount of compensation otherwise recoverable by Landlord from the taking
authority.
ARTICLE 12
HOLDING OVER: SURRENDER
-----------------------
12.1 Holding Over. Any holding over by Tenant after the expiration of the
------------
Term of this Lease shall be treated as a daily tenancy at sufferance at a sum
equal to two (2) times the Basic Rent then in effect plus the Additional Rent
herein provided (prorated on a daily basis). Tenant shall also pay to Landlord
all damages, direct and/or indirect, sustained by reason of any such holding
over. In all other respects, such holding over shall be on the terms and
conditions set forth in this Lease as far as applicable. Landlord may, but shall
not be required to, and only on written notice to Tenant after the expiration of
the Term hereof, elect to treat such holding over as a renewal of one (1) year,
to be on the terms and conditions set forth in this Section.
12.2 Surrender of Premises. Upon the expiration or earlier termination
---------------------
of the Term of this Lease, Tenant shall peaceably quit and surrender to
Landlord the Premises in neat and clean condition and substantially the same
condition as the Premises was in when delivered to Tenant, together with all
alterations, additions and improvements which may have been made or installed
in, on or to the Premises prior to or during the Term of this Lease (except as
hereinafter provided), excepting only ordinary wear and use and damage by fire
or other casualty for which, under other provisions of this Lease, Tenant has no
responsibility to repair or restore. Tenant shall remove all of Tenant's
Removable Property and, to the extent specified by Landlord, all alterations and
additions made by Tenant and all partitions wholly within the Premises unless
installed initially by Landlord in preparing the Premises for Tenant's
occupancy; and shall repair any damages to the Premises or the Building caused
by such removal. Any Tenant's Removable Property which shall remain in the
Building or on the Premises after the expiration or termination of the Term of
this Lease shall be deemed conclusively to have been abandoned, and either may
be retained by Landlord as its property or may be disposed of in such manner as
Landlord may see fit, at Tenant's sole cost and expense.
ARTICLE 13
RIGHTS OF MORTGAGEES: TRANSFER OF TITLE
---------------------------------------
13.1 Rights of Mortgagees. This Lease shall be subject and subordinate to
--------------------
the lien and terms of any mortgage, deed of trust or ground lease or similar
encumbrance (collectively, a "Mortgage", and the holder thereof from time to
time the "Holder") from time to time encumbering the Premises, whether executed
and delivered prior to or subsequent to the date of this Lease, unless the
Holder shall elect otherwise. If this Lease is subordinate to any Mortgage
-23-
and the Holder or any other party shall succeed to the interest of Landlord
pursuant to the Mortgage (such Holder or other party, a "Successor"), at the
election of the Holder or Successor, Tenant shall attorn to the or Successor and
this Lease shall continue in full force and effect between the Holder or
Successor and Tenant. Tenant agrees to execute such instruments of subordination
or attornment in confirmation of the foregoing agreement as the Holder or
Successor reasonably may request, and Tenant hereby appoints the Holder or
Successor as Tenant's attorney-in-fact to execute such subordination or
attornment agreement upon default of Tenant in complying with the Holder's or
Successor's request.
13.2 Assignment of Rents and Transfer of Title.
-----------------------------------------
(a) With reference to any assignment by Landlord of Landlord's
interest in this Lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a mortgage on property
which includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage shall never
be treated as an assumption by such holder of any of the obligations of Landlord
hereunder unless such holder shall, by notice sent to Tenant, specifically
otherwise elect and, except as aforesaid, such holder shall be treated as having
assumed Landlord's obligations hereunder only upon foreclosure of such holder's
mortgage and the taking of possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest in the Property
by a purchaser which, simultaneously therewith, leases Landlord's entire
interest in the Property back to the seller thereof be treated as an assumption
by operation of law or otherwise, of Landlord's obligations hereunder, but
Tenant shall look solely to such seller-lessee, and its successors from time to
time in title, for performance of Landlord's obligations hereunder. In any such
event, this Lease shall be subject and subordinate to the lease to such
purchaser. For all purposes, such seller-lessee, and its successors in title,
shall be the Landlord hereunder unless and until Landlord's position shall have
been assumed by such purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in the event of any
transfer of title to the Property by Landlord, Landlord shall thereafter be
entirely freed and relieved from the performance and observance of all covenants
and obligations hereunder.
13.3 Notice to Mortgagee. After receiving notice from Landlord of any Holder
-------------------
of a Mortgage which includes the Premises, no notice from Tenant to Landlord
alleging any default by Landlord shall by effective unless and until a copy of
the same is given to such Holder (provided Tenant shall have been furnished with
the name and address of such Holder), and the curing of any of Landlord's
defaults by such Holder shall be treated as performance by Landlord.
ARTICLE 14
DEFAULT: REMEDIES
-----------------
14.1 Tenant's Default.
----------------
(a) If at any time subsequent to the date of this Lease any one or
more of the following events (herein referred to as a "Default of Tenant") shall
happen:
(i) Tenant shall fail to pay the Basic Rent or Additional Rent
hereunder when due and such failure shall continue for five (5) Business
Days after notice to Tenant from Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or observed and
Tenant shall
-24-
fail to remedy the same within thirty (30) days after notice to Tenant
specifying such neglect or failure, or if such failure is of such a nature
that Tenant cannot reasonably remedy the same within such thirty (30) day
period, Tenant shall fail to commence promptly (and in any event within
such thirty (30) day period) to remedy the same and to prosecute such
remedy to completion with diligence and continuity (and in any event,
within ninety (90) days after the notice described in this subparagraph
(ii)); or
(iii) Tenant's leasehold interest in the Premises shall be taken
on execution or by other process of law directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall be adjudicated insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any present or
future Federal, State or other statute, law or regulation for the relief of
debtors (other than the Bankruptcy Code, as hereinafter defined), or shall
seek or consent to or acquiesce in the appointment of any trustee, receiver
or liquidator of Tenant or of all or any substantial part of its
properties, or shall admit in writing its inability to pay its debts
generally as they become due; or
(v) An Event of Bankruptcy (as hereinafter defined) shall
occur with respect to Tenant; or
(vi) A petition shall be filed against Tenant under any law
(other than the Bankruptcy Code) seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief
under any present or future Federal, State or other statute, law or
regulation and shall remain undismissed or unstayed for an aggregate of
sixty (60) days (whether or not consecutive), or if any trustee,
conservator, receiver or liquidator of Tenant or of all or any substantial
xxx of its properties shall be appointed without the consent or
acquiescence of Tenant and such appointment shall remain unvacated or
unstayed for an aggregate of sixty (60) days (whether or not consecutive);
(vii) If: (x) Tenant shall fail to pay the Basic Rent or
Additional Rent hereunder when due or shall fail to perform or observe any
other covenant herein contained on Tenant's part to be performed or
observed and Tenant shall cure any such failure within the applicable grace
period set forth in clauses (i) or (ii) above; or (y) a Default of Tenant
of the kind set forth in clauses (i) or (ii) above shall occur and Landlord
shall, in its sole discretion, permit Tenant to cure such Default of Tenant
after the applicable grace period has expired; and the same or a similar
---
failure shall occur more than once within the next 365 days (whether or not
such similar failure is cured within the applicable grace period); or
(viii) The occurrence of any of the events described in
paragraphs (a)(iv)-(a)(vi) with respect to any guarantor of all or any
portions of Tenant's obligations under this Lease;
then in any such case Landlord may terminate this Lease as hereinafter provided.
(b) For purposes of clause (a)(v) above, an "Event of Bankruptcy"
means the filing of a voluntary petition by Tenant, or the entry of an order for
relief against Tenant, under Chapter 7, 11, or 13 of the Bankruptcy Code, and
the term "Bankruptcy Code" means 11 U.S.C (S) 101, et seq.. If an Event of
--------
Bankruptcy occurs, then the trustee of Tenant's bankruptcy estate or Tenant as
debtor-in-possession may (subject to final approval of the court) assume this
Lease, and may subsequently assign it, only if it does the following within
sixty (60) days after the date of the filing of the voluntary petition, the
entry of the order for relief (or such additional
-25-
time as a court of competent jurisdiction may grant, for cause, upon a motion
made within the original sixty-day period):
(i) file a motion to assume the Lease with the appropriate
court;
(ii) satisfy all of the following conditions, which Landlord and
Tenant acknowledge to be commercially reasonable:
(A) cure all Defaults of Tenant under this Lease or provide Landlord
Adequate Assurance (as defined below) that it will (x) cure all
monetary Defaults of Tenant hereunder within ten (10) days from
the date of the assumption; and (y) cure all nonmonetary Defaults
of Tenant hereunder within thirty (30) days from the date of the
assumption;
(B) compensate Landlord and any other person or entity, or provide
Landlord with Adequate Assurance that within ten (10) days after
the date of the assumption, it will compensate Landlord and such
other person or entity, for any pecuniary loss that Landlord and
such other person or entity incurred as a result of any Default
of Tenant, the trustee, or the debtor-in-possession;
(C) provide Landlord with Adequate Assurance of Future Performance
(as defined below) of all of Tenant's obligations under this
Lease; and
(D) deliver to Landlord a written Statement that the conditions
herein have been satisfied.
(c) For purposes only of the foregoing paragraph (b), and in addition
to any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "Adequate Assurance" means at least
meeting the following conditions, which Landlord and Tenant acknowledge to be
commercially reasonable:
(i) entering an order segregating sufficient cash to pay
Landlord and any other person or entity under paragraph (b) above, and
(ii) granting to Landlord a valid first lien and security
interest (in form acceptable to Landlord) in all property comprising the
Tenant's "property of the estate," as that term is defined in Section 541
of the Bankruptcy Code, which lien and security interest secures the
trustee's or debtor-in-possession's obligation to cure the monetary and
nonmonetary defaults under the Lease within the periods set forth in
paragraph (b) above.
(d) For purposes only of paragraph (b) above, and in addition to any
other requirements the Bankruptcy Code, any future federal bankruptcy law and
applicable case law, "Adequate Assurance of Future Performance" means at least
meeting the following conditions, which Landlord and Tenant acknowledge to be
commercially reasonable:
(i) the trustee or debtor-in-possession depositing with
Landlord, as security for the timely payment of rent and other monetary
obligations, an amount equal to the sum of two (2) months' Basic Rent plus
an amount equal to two (2) months' installments on account of Operating
Expenses and Taxes;
-26-
(ii) the trustee or the debtor-in-possession agreeing to pay in
advance, on each day that the Basic Rent is payable, the monthly
installments on account of Operating Expenses and Taxes;
(iii) the trustee or debtor-in-possession providing adequate
assurance of the source of the rent and other consideration due under this
Lease;
(iv) Tenant's bankruptcy estate and the trustee or debtor-in-
possession providing Adequate Assurance that the bankruptcy estate (and any
successor after the conclusion of the Tenant's bankruptcy proceedings) will
continue to have sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure Landlord that the
bankruptcy estate (and any successor after the conclusion of the Tenant's
bankruptcy proceedings) will have sufficient funds to fulfill Tenant's
obligations hereunder.
(e) If the trustee or the debtor-in-possession assumes the Lease under
paragraph (b) above and applicable bankruptcy law, it may assign its interest in
this Lease only if the proposed assignee first provides Landlord with Adequate
Assurance of Future Performance of all of Tenant's obligations under the Lease,
and if Landlord determines, in the exercise of its reasonable business judgment,
that the assignment of this Lease will not breach my other lease, or any
mortgage, financing agreement, or other agreement relating to the Property by
which Landlord or the Property is then bound (and Landlord shall not be required
to obtain consents or waivers from any third party required under any lease,
mortgage, financing agreement, or other such agreement by which Landlord is then
bound).
(f) For purposes only of paragraph (e) above, and in addition to any
other requirements under the Bankruptcy Code, any future federal bankruptcy law
and applicable case law, "Adequate Assurance of Future Performance" means at
least the satisfaction of the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:
(i) the proposed assignee submitting a current financial
statement, audited by a certified public accountant, that allows a net
worth and working capital in amounts determined in the reasonable business
judgment of Landlord to be sufficient to assure the future performance by
the assignee of Tenant's obligation under this Lease; and
(ii) if requested by Landlord in the exercise of its reasonable
business judgment, the proposed assignee obtaining a guarantee (in form
and Substance satisfactory to Landlord) from one or more persons who
satisfy Landlord's standards of creditworthiness.
14.2 Landlord's Remedies.
--------------------
(a) Upon the occurrence of a Default of Tenant, Landlord may
terminate this Lease by notice to Tenant, specifying a date not less than five
(5) days after the giving of such notice on which this Lease shall terminate and
this Lease shall come to an end on the date specified therein as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Term of this Lease, and Tenant will then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided..
(b) If this Lease shall have been terminated as provided in this
Article, then Landlord may re-enter the Premises, either by summary
proceedings, ejectment or otherwise, and remove and dispossess Tenant and all
other persons and any and all property from the same, as if this Lease had not
been made.
-27-
(c) If this Lease shall have been terminated as provided in this
Article, Tenant shall pay the Basic Rent and Additional Rent up to the time of
such termination, and thereafter Tenant, until the end of what would have been
the Term of this Lease in the absence of such termination, and whether or not
the Premises shall have been relet, shall be liable to Landlord for, and shall
pay to Landlord, as liquidated current damages: (x) the Basic Rent and
Additional Rent payable hereunder if such termination had not occurred, less the
net proceeds, if any, of any reletting of the Premises, after deducting all
expenses in connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
advertising, expenses of employees, alteration costs and expenses of preparation
for such reletting; and (y) if this Lease provides that Tenant was entitled to
occupy the Premises for any period of time without paying Basic Rent, the amount
of Basic Rent that Tenant would have paid for any such period. Tenant shall pay
the portion of such current damages referred to in clause (x) above to Landlord
monthly on the days which the Basic Rent would have been payable hereunder if
this Lease had not been terminated, and Tenant shall pay the potion of such
current damages referred to in clause (y) above to Landlord upon such
termination.
(d) At any time after termination of this Lease as provided in this
Article, whether or not Landlord shall have collected any such current damages,
as liquidated final damages and in lieu of all such current damages beyond the
date of such demand, at Landlord's election Tenant shall pay to Landlord an
amount equal to the excess, if any, of the Basic Rent and Additional Rent which
would be payable hereunder from the date of such demand assuming that, for the
purposes of this paragraph, annual payments by Tenant on account of Taxes and
Operating Expenses would be the same as the payments required for the
immediately preceding Operating or Tax Year for what would be the then unexpired
Term of this Lease if the same remained in effect, over the then fair net rental
value of the Premises for the same period.
(e) In case of any Default of Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord may (i) re-let the
Premises or any part or parts thereof, either in the name of Landlord or
otherwise, 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 of his Lease and may grant concessions or free rent to the
extent that Landlord considers advisable and necessary to re-let the same and
(ii) make such alterations, repairs and decorations in the Premises as Landlord
considers advisable and necessary for the purpose of reletting the Premises;
and the making of such alterations, repairs and decorations shall not operate
or be construed to release Tenant from liability hereunder as aforesaid. Tenant
hereby expressly waives any and all rights of redemption granted by or under my
present or future laws in the event of Tenant being evicted or dispossessed, or
in the event of Landlord obtaining possession of the Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease.
14.3 Additional Rent. If Tenant shall fail to pay when due any sums under
----------------
this Lease designated as Additional Rent, Landlord shall have the same rights
and remedies as Landlord has hereunder for failure to pay Basic Rent.
14.4 Remedying Defaults. Landlord shall have the right, but shall not be
------------------
required, to pay such sums or do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or neglect
of Tenant to perform any of the provisions of this Lease, and in the event of
the exercise of such right by Landlord, Tenant agrees to pay to Landlord
forthwith upon demand all such sums, together with interest thereon at a rate
equal to 3% over the base rate in effect from time to time at The First National
Bank of Boston or its successor (but in no event less than 18% per annum), as
Additional Rent. Any payment of Basic Rent and Additional Rent payable hereunder
not paid when due shall, at the option of Landlord, bear interest at a rate
equal to 3% over the base rate in effect from time to time at The First National
Bank of Boston or its successor (but in no event less than 18% per annum) from
the due date thereof and shall be payable forthwith on demand by Landlord, as
Additional Rent.
-28-
14.5 Remedies Cumulative. The specified remedies to which Landlord may
--------------------
resort hereunder are not intended to be exclusive of any remedies or means of
redress to which Landlord may at any time be entitled lawfully, and Landlord
may invoke any remedy (including the remedy of specific performance) allowed at
law or in equity as if specific remedies were not herein provided for.
14.6 Attorneys' Fees. Reasonable attorneys' fees and expenses incurred by
----------------
or on behalf of Landlord in enforcing its rights hereunder or occasioned by any
Default of Tenant shall be paid by Tenant.
14.7 Waiver.
-------
(a) Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long the same may
continue, shall never be a waiver by Tenant or Landlord, respectively, of any of
the other's rights hereunder. Further, no waiver at any time of any of the
provisions hereof by Landlord or Tenant shall be construed as a waiver of any of
the other provisions hereof, and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any action by
the other requiring such consent or approval shall not be construed to waive or
render unnecessary Landlord's or Tenant's consent or approval to or of any
subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser
amount than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account of the earliest installment of any payment due from
Tenant under the provisions hereof. The acceptance by Landlord of a check for a
lesser amount with an endorsement or statement thereon, or upon any letter
accompanying such check, that such lesser amount is payment in full, shall be
given no effect, and Landlord may accept such check without prejudice to any
other rights or remedies which Landlord may have against Tenant.
14.8 Security Deposit/Letter of Credit. Tenant shall deposit with Landlord
----------------------------------
a Letter of Credit in the amount and form hereafter described (the "Letter of
Credit") to be held and, as applicable, presented and drawn upon and the
proceeds thereof retained and applied by Landlord as security for the faithful
payment, performance and observance by Tenant of the terms, covenants,
provisions, conditions and agreements of Tenant under and pursuant to this
Lease. It is agreed and understood that in the event of the occurrence of a
Default of Tenant, Landlord may present for payment and draw upon the Letter of
Credit and Landlord may use, apply or retain the whole or any part of the
amounts available to be drawn under the Letter of Credit to the extent required
for the payment of any Basic Rent, Tenant's payments on account of Taxes and
Operating Expenses, additional rent or any other sum which Landlord may expend
or be entitled to the payment of by reason of any Default of Tenant or any
failure of Tenant to pay, perform or observe any term, covenant, condition or
provision of this Lease, including without limitation, any late charges,
interest payments or any damages or deficiency in the re-letting of the
Premises whether said damages or deficiency occurred before or after summary
proceedings or other re-entry by Landlord.
If Landlord shall present, draw upon and apply or retain all or any
portion of the amounts evidenced by the Letter of Credit, Tenant shall
immediately replenish and reinstate the amount I available to be drawn under the
Letter of Credit or cause a substitute Letter of Credit in the form and amount
required by this Lease to be re-issued so that at all times during the Term of
this Lease, Landlord shall be entitled to draw upon the entire dollar amount of
the Letter of Credit in the amounts required hereunder notwithstanding any prior
presentation and draw thereon.
-29-
The Letter of Credit must at all times be an "irrevocable clean"
commercial Letter of Credit in the amount required by this Lease and payable
through a Boston, Massachusetts Bank, acceptable to Landlord in Landlord's sole
discretion. In addition, the Letter of Credit shall be payable solely to the
benefit of the Landlord from time to time under this Lease and shall be
automatically renewable and, upon the direction of Landlord, transferable to and
payable for the benefit of any successor Landlord under the Lease. The Letter of
Credit (or substitutes thereof consistent with the terms hereof) shall be and
remain presentable and payable for the time period beginning on the date of this
Lease through and including the date which is the last to occur of (i) the date
which is 60 days after the last day of the Term of this Lease or (ii) the date
which is 60 days after the date of delivery of the entire Premises to Landlord
in accordance with the terms and provisions of this Lease or (iii) 60 days
after the last of Tenant's monetary obligations to Landlord under this Lease
have been satisfied in full. Tenant shall bear all costs and expenses in
connection with procuring the Letter of Credit and maintaining it in full force
and effect for the time periods required hereunder. In the event of a sale or
other transfer of the Building, Tenant shall, at its sole cost and expense,
cause the Letter of Credit, in the form required hereunder, to be issued to and
for the benefit of such transferee or purchaser, as designated by Landlord.
The Landlord from time to time under this Lease, shall be entitled to
receive 60 days prior written notice of any cancellation of the Letter of Credit
for any reason and the Letter of Credit shall not be cancellable unless and
until Landlord shall have received such sixty (60) day advance written notice.
Upon (i) receiving notice of cancellation of the Letter of Credit or (ii)
failure of Tenant to deliver to Landlord a substitute Letter of Credit on or
before the date which is 30 days prior to any renewal date and whether or not
Tenant shall then be in default in the payment, performance or observance of any
term, covenant or provision of this Lease, Landlord shall be entitled to
present, draw upon and retain the entire amount of the Letter of Credit and upon
so doing, Landlord shall be entitled to hold, apply and retain the proceeds of
such payment as if it were a cash security deposit under this Lease to be
applied against Defaults of Tenant from time to time arising under this Lease.
It is agreed and understood that any failure of Tenant to perform, observe
or comply with any term or provision contained in this Section 14.8 to be
performed or observed by Tenant shall entitle Landlord to the same rights and
remedies under this Lease, as a failure by Tenant to pay Basic Rent as and when
same shall be due and payable.
The amount of the Letter of Credit shall be $134,400.00.
14.9 Landlord's Default. Landlord shall in no event be in default under
-------------------
this Lease unless Landlord shall neglect or fail to perform any of its
obligations hereunder and shall fail to remedy the same within thirty (30) days
after notice to Landlord specifying such neglect or failure, or if such failure
is of such a nature that Landlord cannot reasonably remedy the same within such
thirty (30) day period, Landlord shall fail to commence promptly (and in any
event within such thirty (30) day period) to remedy the same and to prosecute
such remedy to completion with diligence and continuity.
ARTICLE 15
MISCELLANEOUS PROVISIONS
15.1 Rights of Access. Landlord and Agent shall have the right to enter
-----------------
the Premises at all reasonable hours upon reasonable prior notice to Tenant,
except in the case of any emergency, for the purpose of inspecting the Premises,
doing maintenance or making repairs or otherwise exercising its rights or
fulfilling its obligations under this Lease, and Landlord and Agent also shall
have the right to make access available at all reasonable hours to prospective
or existing mortgagees, purchasers or tenants of any part of the Property.
-30-
15.2 Covenant of Quiet Enjoyment. Subject to the terms and conditions of
---------------------------
this Lease, on payment of the Basic Rent and Additional Rent and observing,
keeping and performing all of the other terms and conditions of this Lease on
Tenant's part to be observed, kept and performed, Tenant shall lawfully,
peaceably and quietly enjoy the Premises during the term hereof, without
hindrance or ejection by any persons lawfully claiming under Landlord to have
title to the Premises superior to Tenant. The foregoing covenant of quiet
enjoyment is in lieu of any other covenant, express or implied.
15.3 Landlord's Liability.
--------------------
(a) Tenant agrees to look solely to Landlord's equity interest in the
Property at the time of recovery for recovery of any judgment against Landlord,
and agrees that neither Landlord nor any successor of Landlord shall be
personally liable for any such judgment, or for the payment of any monetary
obligation to Tenant. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise have to
obtain injunctive relief against Landlord or any successor of Landlord, or to
take any action not involving the personal liability of Landlord or any
successor of Landlord to respond in monetary damages from Landlord's assets
other than Landlord's equity interest in the Property.
(b) In no event shall Landlord ever be 1iable to Tenant for any loss
of business or any other indirect or consequential damages suffered by Tenant
from whatever cause.
(c) Where provision is made in this Lease for Landlord's consent, and
Tenant shall request such consent, and Landlord shall fail or refuse to give
such consent, Tenant shall not be entitled to any damages for any withholding by
Landlord of its consent, it being intended that Tenant's sole remedy shall be an
action for specific performance or injunction, and that such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold its consent. Furthermore, whenever Tenant requests
Landlord's consent or approval (whether or not provided for herein), Tenant
shall pay to Landlord, on demand, as Additional Rent, any reasonable expenses
incurred by Landlord (including without limitation reasonable attorneys' fees
and costs, if any) in connection therewith.
(d) Any repairs or restoration required or permitted to be made by
Landlord under this Lease may be made during normal business hours, and
Landlord shall have no liability for damages to Tenant for inconvenience,
annoyance or interruption of business arising therefrom.
15.4 Estoppel Certificate. Tenant shall, at any time and from time to
--------------------
time, upon not less than ten (10) business days prior written notice by
Landlord, execute, acknowledge and deliver to Landlord an estoppel certificate
containing such statements of fact as Landlord reasonably requests.
15.5 Relocation. Landlord reserves the right to relocate Tenant (one time
----------
only during the initial Term and one time only during any extension term), upon
prior written notice, to other comparable space (with similar size, dimensions,
views and access as the Premises) within the Building at Landlord's sole cost
and expense at any time during the Lease Term; provided, however, that Landlord
shall pay all reasonable costs of moving Tenant to such other space including
the breakdown, move and set-up of furniture and equipment, moving files, and
replacing stationery and signage with substantially equivalent materials. If
Landlord exercises its right to relocate Tenant within the Building, Tenant may
move on a weekend so as to avoid any unreasonable interference with Tenant's
business. In no event shall Landlord relocate Tenant to the space on the first
floor of the Building which the Building manager currently uses and occupies.
-31-
15.6 Brokerage. Tenant warrants and represents that Tenant has dealt with
---------
no broker in connection with the consummation of this Lease other than Broker,
and, in the event of my brokerage claims against Landlord predicated upon prior
dealings with Tenant, Tenant agrees to defend the same and indemnify Landlord
against any such claim (except any claim by Broker).
15.7 Rules and Regulations. Tenant shall abide by the reasonable Rules and
---------------------
Regulations from time to time established by Landlord, it being agreed that such
Rules and Regulations will be established and applied by Landlord in a non-
discriminatory fashion, such that a11 Rules and Regulations shall be generally
applicable to other tenants of the Building of similar nature to the Tenant
named herein. Landlord agrees to use reasonable efforts to insure that any such
Rules and Regulations are uniformly enforced, but Landlord shall not be liable
to Tenant for violation of the same by any other tenant or occupant of the
Building, or persons having business with them. In the event that there shall be
a conflict between such Rules and Regulations and the provisions of this Lease
the provisions of this Lease shall control. The Rules and Regulations currently
in effect are set forth in Exhibit E.
15.8 Invalidity of Particular Provisions. If any term or provision of this
-----------------------------------
Lease, or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
15.9 Provisions Binding, Etc. Except as herein otherwise provided, the
-----------------------
terms hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant (except in the case
of Tenant, only such successors and assigns as may be permitted hereunder) and,
----
if Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and permitted assigns. Each term and each provision
of this Lease to be performed by Tenant shall be construed to be both a covenant
and a condition. Any reference in this Lease to successors and assigns of Tenant
shall not be construed to constitute a consent to assignment by Tenant.
15.10 Recording. Tenant agrees not to record this Lease, but, if the Term
---------
of this Lease (including any extended term) is seven (7) years or longer, each
party hereto agrees, on the request of the other, to execute a notice of lease
in recordable form and complying with applicable law. In no event shall such
document set forth the rent or other charges payable by Tenant under this Lease;
and any such document shall expressly state that it is executed pursuant to the
provisions contained in this Lease, and is not intended to vary the terms and
conditions of this Lease. At Landlord's request, promptly upon expiration of
or earlier termination of the Term, Tenant shall execute and deliver to Landlord
a release of any document recorded in the real property records for the location
of the Property evidencing this Lease, and Tenant hereby appoints Landlord
Tenant's attorney-in-fact, coupled with an interest, to execute any such
document if Tenant fails to respond to Landlord's request to do so within
fifteen (15) days. The obligations of Tenant under this Section shall survive
the expiration or any earlier termination of the Term.
15.11 Notice. All notices or other communications required hereunder shall
------
be in writing and shall be deemed duly given if delivered in person (with
receipt therefor), if sent by reputable overnight delivery or courier service
(e.g., Federal Express) providing for receipted delivery, or if sent by
certified or registered mail, return receipt requested, postage prepaid, to the
following address:
(a) if to Landlord, at Landlord's Address, to the attention of Xxxx X.
Xxxxxx
-32-
(b) if to Tenant, at Tenant's Address, to the
attention of Xxxxx Xxxxx [, and after the
Commencement Date, at the Premises].
Where receipt of notice or other communication shall be conclusively
established by either (i) return of a return receipt indicating that the notice
has been delivered; or (ii) return of the letter containing the notice with an
indication from the courier or postal service that the addressee has refused to
accept delivery of the notice. Either party may change its address for the
giving of notices by notice given in accordance with this Section.
15.12 When Lease Becomes Binding; Entire Agreement; Modification. The
----------------------------------------------------------
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. This Lease is the entire agreement between
Landlord and Tenant, and this Lease expressly supersedes any negotiations,
considerations, representations and understandings and proposals or other
written documents relating hereto. This Lease may be modified or altered only by
written agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
15.13 Paragraph Headings and Interpretation of Sections. The paragraph
-------------------------------------------------
headings throughout this instrument are for convenience and reference only, and
the words contained therein shall in no way be held to explain, modify, amplify
or aid in the interpretation, construction or meaning of the provisions of this
Lease. The provisions of this Lease shall be construed as a whole, according to
their common meaning (except where a precise legal interpretation is clearly
evidenced), and not for or against either party. Use in this Lease of the words
"including," "such as" or words of similar import, when followed by any general
term, statement or matter, shall not be construed to limit such term, statement
or whether to the specified item(s), whether or not language of non-limitation,
such as "without limitation" or "including, but not limited to," or words of
similar import, are used with reference thereto, but rather shall be deemed to
refer to all other terms or matters that could fall within a reasonably broad
scope of such term, statement or matter.
15.14 Dispute Resolution. In the event of a dispute between Landlord and
------------------
Tenant pursuant to this Lease (other than a dispute relating to the payment of
Basic Rent and Additional Rent the parties agree that prior to pursuing other
available remedies (excluding giving notices of default), they will attempt to
directly negotiate resolution of their dispute. If negotiation is unsuccessful,
then they agree to participate in at least three hours of mediation to be
facilitated by a mediator mutually acceptable to them under the mediation
procedures set by the mediator. The mediation session shall be conducted within
thirty (30) days of the date on which the mediator receives the request to
mediate. The costs of such mediation shall be shared equally by the parties.
15.15 Financial Statements. Tenant shall, without charge therefor, at any
--------------------
time, within ten (10) days following a request by Landlord, deliver to Landlord,
or to any other party designated by Landlord, a true and accurate copy of
Tenant's most recent financial statements. All requests made by Tenant regarding
subleases or assignments must be accompanied by the most recent financial
statement of Tenant's prospective subtenant or prospective assignee.
15.16 Waiver of Jury Trial. Landlord and Tenant hereby each waive trial by
--------------------
jury in any action, proceeding or counterclaim brought by either against the
other, on or in respect of any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant or Tenant's
use or occupancy of the Premises.
15.17 Time Is of the Essence. Time is of the essence of each provision of
----------------------
this Lease.
-33-
15.18 Multiple Counterparts. This Lease may be executed in multiple
---------------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document.
15.19 Governing Law. This Lease shall be governed by the laws of the state
-------------
in which the Property is located.
REMINDER OF PAGE INTENTIONALLY LEFT BLANK
-34-
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, as of the date first
set forth above.
LANDLORD:
BCIA NEW ENGLAND HOLDINGS LLC, a Delaware limited liability
company
BY: BCIA NEW ENGLAND HOLDINGS
MASTER LLC, a Delaware limited liability
company, its Manager
BY: BCIA NEW ENGLAND
HOLDINGS MANAGER LLC, a
Delaware limited liability company,
its Manager
BY: BCIA NEW ENGLAND
HOLDINGS MANAGER
CORP., a Delaware
corporation, its Manager
BY: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
TENANT:
TELEHUBLINK CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: President and CEO
--------------------------
-35-
EXHIBIT A
Location Plan of Premises
Exhibit A - Location Plan of the Premises
Telehublink Corporation
[EXISTING FIRST FLOOR PLAN]
EXHIBIT B
Intentionally Omitted
EXHIBIT C
Commencement Date Letter
[Name of Contact]
[Name of Tenant]
[Address of Tenant]
RE: [Name of Tenant]
[Premises Rentable Area and Floor]
Dear [Name of Contact]:
Reference is made to that certain Lease, dated as of , 1999, between
[Landlord], as Landlord and [Tenant] as Tenant, with respect to Premises on the
_______ floor of the above-referenced building. In accordance with Section 4.1
of the Lease, this is to confirm that the Commencement Date of the Term of the
Lease occurred on __________, and that the Term of the Lease shall expire on
____________
If the foregoing is in accordance with your understanding, kindly execute
the enclosed duplicate of this letter, and return the same to us.
Very truly yours,
[Landlord]
By: ________________________________
Name: __________________________
Title __________________________
Accepted and Agreed:
[Tenant]
By:
Name: ____________________
Title: ____________________
Date: ____________________
EXHIBIT D
Operating Expenses
Operating Expenses shall include the following, without limitation:
All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social
security, unemployment and similar taxes, workmen's compensation insurance,
disability benefits, pensions, hospitalization, retirement plans and group
insurance, uniforms and working clothes and the cleaning thereof, and
expenses imposed on Landlord or Landlord's agents pursuant to any collective
bargaining agreement for the services of employees of Landlord or Landlord's
agents in connection with the operation, repair, maintenance, cleaning,
management and protection of the Property, including, without limitation,
day and night supervisors, manager, accountants, bookkeepers,janitors,
carpenters, engineers, mechanics, electricians and plumbers and personnel
engaged in supervision of any of the persons mentioned above; provided that,
if any such employee is also employed on other property of Landlord, such
compensation shall be suitably prorated among the Property and such other
properties.
The cost of services, utilities, materials and supplies furnished or used in
the operation, repair, maintenance, cleaning, management and protection, of
the Property.
The cost of replacements for tools and other similar equipment used in the
repair, maintenance, cleaning and protection of the Property, provided that,
in the case of any such equipment used jointly on other property of
Landlord, such costs shall be suitably prorated among the Property and such
other properties.
Where the Property is managed by Landlord or an affiliate of Landlord, a sum
equal to the amounts customarily charged by management firms in the Greater
Boston area for similar properties, whether or not actually paid, or where
managed by other than Landlord or an affiliate thereof, the amounts accrued
for management, together with, in either case, amounts accrued for legal and
other professional fees relating to the Property, but excluding such fees
and commissions paid in connection with services rendered for securing or
renewing leases and for matters not related to the normal administration and
operation of the Property.
Premiums for insurance against damage or loss to the Property from such
hazards as Landlord shall determine, including, but not by way of
limitation, insurance covering loss of rent attributable to any such
hazards, and public liability insurance.
If, during the Term of this Lease, Landlord shall make a capital
expenditure, the total cost of which is not properly includable in Operating
Expenses for the Operating Year in which it was made, there shall
nevertheless be included in such Operating Expenses for the Operating Year
in which it was made and in Operating Expenses for each succeeding Operating
Year the annual charge-off of such capital expenditure. Annual charge-off
shall be determined by dividing the original capital expenditure plus an
----
interest factor, reasonably determined by Landlord, as being the interest
rate then being charged for long-term mortgages by institutional lenders on
like properties within the locality in which the Property is located, by the
number of years of useful life of the capital expenditure; and the useful
life shall be determined reasonably by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time of making
such expenditure.
Costs for electricity, water and sewer use charges, gas and other utilities
supplied to the Property and not paid for directly by tenants.
Betterment assessments, provided the same are apportioned equally over the
longest period permitted by law, and to the extent, if any, not included in
Taxes.
Amounts paid to independent contractors for services, materials and supplies
furnished for the operation, repair, maintenance, cleaning and protection of
the Property.
EXHIBIT E
Rules and Regulation of Building
The following regulations are generally applicable:
If the Building is occupied by more than one tenant, the public sidewalks,
entrances, passages, courts, elevators, vestibules, stairways, corridors or
halls shall not be obstructed or encumbered by Tenant (except as necessary for
deliveries) or used for any purpose other than ingress and egress to and from
the Premises.
If the Building is occupied by more than one tenant, no awnings, curtains,
blinds, shades, screens or other projections shall be attached to or hung in, or
used in connection with, any window of the Premises or any outside wall of the
Building. Such awnings, curtains, blinds, shades, screens or other projections
must be of a quality, type, design and color, and attached in the manner,
approved by Landlord.
No show cases or other articles shall be put in front of or affixed to any part
of the exterior of the Building, nor, if the Building is occupied by more than
one tenant, displayed through interior windows into the atrium of the Building,
nor placed in the halls, corridors or vestibules, provided that show cases or
articles may be displayed through interior windows into the atrium of the
Building (if any) with Landlord's prior written approval, such approval not to
be unreasonably withheld or delayed so long as such display does not adverse
affect the aesthetic integrity of the Building.
The water and wash closets and other plumbing fixtures shall not be used for any
purposes other than those for which they were designed and constructed, and no
sweepings, rubbish, rags, acids or like substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by the
Tenant.
Tenant shall not use the Premises or any part thereof or permit the Premises or
any part thereof to be used as a public employment bureau or for the sale of
property of any kind at auction, except in connection with Tenant's business.
Tenant must, upon the termination of its tenancy, return to the Landlord all
locks, cylinders and keys to offices and toilet rooms of the Premises.
Landlord reserves the right to exclude from the Building after business hours
and at all hours on days other than Business Days all persons connected with or
calling upon the Tenant who are not escorted in the Building by an employee of
Tenant. Tenant shall be responsible for all persons to whom it allows access and
shall be liable to the Landlord for a11 wrongful acts of such persons.
The requirements of Tenant will be attended to only upon application at the
Building Management Office. Employees of Landlord shall not perform any work or
do anything outside of their regular duties, unless under special instructions
from the office of the Landlord.
There shall not be used in any space in the Building, or in the public halls of
the Building, either by Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
No bicycles, vehicles or animals of any kind shall be brought into or kept in or
about the Premises.
If the Building is occupied by more than one tenant, no tenant shall make, or
permit to be made, any unseemly or disturbing noises or disturb or interfere
with occupants of this or any neighboring building or premises or those having
business with them whether by use of any musical instrument, radio, talking
machine, unmusical noise, whistling, singing, or in any other way. No tenant
shall throw anything out of the doors, windows or skylights or down the
passageways.
The Premises shall not be used for lodging or sleeping or for any immoral or
illegal purpose.
No smoking shall be permitted in the Premises or the Building. Smoking shall
only be permitted in smoking areas outside of the Building which have been
designated by the Landlord.
Landlord shall have the right, exercisable without notice and without liability
to any tenant, to change the name and street address of the Building.
The rules and regulations set forth in Attachment I to this Exhibit, which is by
this reference made a part hereof, are applicable to any Alterations being
undertaken by or for Tenant in the Premises pursuant to Section 5.2 of the
Lease:
Attachment I to Exhibit E
Rules and Regulations for Tenant Alterations
--------------------------------------------
1. General
1. A11 Alterations made by Tenant in, to or about the Premises shall be
made in accordance with the requirements of this Exhibit and by contractors or
mechanics approved by Landlord.
2. Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, complete plans for the Alterations, with full
details and specifications for all of the Alterations, in compliance with,
Section D below.
3. Alterations must comply with the Building Code applicable to the
Property and the requirements, rules and regulations and any other governmental
agencies having jurisdiction.
4. No work shall be permitted to commence before Tenant obtains and
furnishes to Landlord copies of all necessary licenses and permits from all
governmental authorities having jurisdiction.
5. All demolition, removals or other categories of work that may
inconvenience other tenants or disturb Building operations, must be scheduled
and performed before or after normal business hours, and Tenant shall provide
Agent with at least 24 hours' notice prior to proceeding with such work.
6. All inquiries, submissions, approvals and all other matters shall be
processed through Agent.
7. All work, if performed by a contractor or subcontractor, shall be
subject to reasonable supervision and inspection by Landlord's representative.
Such supervision and inspection shall be at Tenant's sole expense and Tenant
shall pay Landlord's reasonable charges for such supervision and inspection.
2. Prior to Commencement of Work
-----------------------------
1. Tenant shall submit to the Building manager a request to perform the
work. The request shall include the following enclosures:
(1) A list of Tenant's contractors and/or subcontractors for
Landlord's approval.
(2) Four complete sets of plates and specifications properly stamped
by a registered architect or professional engineer.
(3) A properly executed building permit application form.
(4) Four executed copies of the Insurance Requirements Agreement in
the form attached to this Exhibit as Attachment II and made a part
hereof from Tenant's contractor and, if requested by Landlord, from
the contractor's subcontractors.
(5) Contractor's and subcontractor's insurance certificates, including
an indemnity in accordance with the Insurance Requirements
Agreement.
2. Landlord will return the following to Tenant:
(1) Two sets of plans approved or a disapproved with specific comments
as to the reasons therefor (such approval or comments shall not
constitute a waiver of approval of governmental authorities).
(2) Two fully executed copies of the Insurance Requirements Agreement.
3. Landlord's approval of the plans, drawings, specifications or other
submissions in respect of any Alterations shall create no liability or
responsibility on the part of the Landlord for their completeness, design
sufficiency or compliance with requirements of any applicable laws, rules or
regulations of any governmental or quasi-governmental agency, board or
authority.
4. Tenant shall obtain a building permit from the Building Department and
necessary permits from other governmental agencies. Tenant shall be responsible
for keeping current all permits. Tenant shall submit copies of all approved
plans and permits to Landlord and shall post the original permit on the Premises
prior to the commencement of my work.
3. Requirements and Procedures
---------------------------
1. All structural and floor loading requirements shall be subject to the
prior approval of Landlord's structural engineer.
2. A11 mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers and all mechanical and electrical work shall be performed
by contractors who are engaged by Landlord in constructing, operating or
maintaining the Building. When necessary, Landlord will require engineering
and shop drawings, which drawings must be approved by Landlord before work is
started. Drawings are to be prepared by Tenant and all approvals shall be
obtained by Tenant.
3. Elevator service for construction work shall be charged to Tenant at
standard Building rates. Prior arrangements for elevator use shall be made with
Building manager by Tenant. No material or equipment shall be carried under or
on top of elevators. If an operating engineer is required by any union
regulations, such engineer shall be paid for by Tenant.
4. If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative. No work will be performed in Building mechanical equipment rooms
without Landlord's approval and under Landlord's supervision.
5. Tenant's contractor shall:
(1) have a superintendent or xxxxxxx on the Premises at all times;
(2) police the job at all times, continually keeping the Premises
orderly;
(3) maintain cleanliness and protection of all areas, including
elevators and lobbies.
(4) protect the front and top of all peripheral HVAC units and
thoroughly clean them at the completion of work;
(5) block off supply and return grills, diffusers and ducts to keep
dust from entering into the Building air conditioning system; and
(6) avoid the disturbance of other tenants.
6. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for corrective work.
7. All equipment and installations must be equal to the standards
generally in effect with respect to the remainder of the Building. Any deviation
from such standards will be permitted only if indicated or specified on the
plans and specifications and approved by Landlord.
8. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC work.
9. Upon completion of the Alterations, Tenant shall submit to Landlord a
permanent certificate of occupancy and final approval by the other governmental
agencies having jurisdiction.
10. Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
11. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
D. Standards for Plans and Specifications.
--------------------------------------
Whenever Tenant shall be required by the terms of the Lease (including this
Exhibit) to submit plans to Landlord in connection with any Alterations, such
plans shall include at least the following:
12. Floor plan indicating location of partitions and doors (details
required of partition and door types).
13. Location of standard electrical convenience outlets and telephone
outlets.
14. Location and details of special electrical outlets; e.g., photocopiers,
etc.
15. Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located indicating
fixtures to be controlled.
16. Locations and details of special ceiling conditions, lighting
fixtures, speakers, etc.
17. Location and specifications of floor covering, paint or paneling with
paint colors referenced to standard color system.
18. Finish schedule plan indicating wall covering, paint, or paneling with
paint colors referenced to standard color system.
19. Details and specifications of special millwork, glass partitions,
rolling doors and grilles, blackboards, shelves, etc.
20. Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latchsets or locksets, closures, stops, and any
special items such as thresholds, soundproofing, etc. Keying schedule is
required.
21. Verified dimensions of all built-in equipment (file cabinets, lockers,
plan files,
22. Location and weights of storage files.
23. Location of any special soundproofing requirements.
24. Location and details of special floor areas exceeding 50 pounds of
live load per square foot.
25. All structural, mechanical, plumbing and electrical drawings, to be
prepared by the base building consulting engineers, necessary to complete the
Premises in accordance with Tenant's Plans.
26. All drawings to be uniform size (30" x 46") and shall incorporate the
standard project electrical and plumbing symbols and be at a scale of l/8" = 1'
or larger.
27. All drawings shall be stamped by an architect (or, where applicable,
an engineer) licensed in the jurisdiction in which the Property is located and
without limiting the foregoing, shall be sufficient in all respects for
submission to applicable authorization in connection with a building permit
application.
Attachment II to Exhibit E
Contractor's Insurance Requirements
-----------------------------------
Building:
Landlord:
Tenant:
Premises:
The undersigned contractor or subcontractor ("Contractor") has been hired by the
tenant named above (hereinafter called "Tenant") of the Building named above (or
by Tenant's contractor) to perform certain work ("Work") for Tenant in the
Premises identified above. Contractor and Tenant have requested the landlord
named above ("Landlord") to grant Contractor access to the Building and its
facilities in connection with the performance of the Work, and Landlord agrees
to grant such access to Contractor upon and subject to the following terms and
conditions:
28. Contractor agrees to indemnify and save harmless Landlord and its
respective officers, employees and agents and their affiliates, subsidiaries and
partners, and each of them, from and with respect to any claims, demands, suits,
liabilities, losses and expenses, including reasonable attorneys' fees, arising
out of or in connection with the Work (and/or imposed by law upon any or all of
them) because of personal injuries, bodily injury (including death at any time
resulting therefrom) and loss of or damage to property, including consequential
damages, whether such injuries to person or property are claimed to be due to
negligence of the Contractor, Tenant, Landlord or any other party entitled to be
indemnified as aforesaid except to the extent specifically prohibited by law
(and any such prohibition shall not void this Agreement but shall be applied
only to the minimum extent required by law).
29. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(1) Workmen's Compensation and Employers, Liability Insurance covering
each and every xxxxxxx employed in, about or upon the Work, as provided for in
each and every statute applicable to Workmen's Compensation and Employers'
Liability Insurance.
(2) Comprehensive General Liability Insurance including coverages for
Protective and Contractual Liability (to specifically include coverage for the
indemnification clause of this Agreement) for not less than the following
limits:
Personal Injury:
$3,000,000 per person $10,000,000 per occurrence
Property Damage:
$3,000,000 per occurrence $3,000,000 aggregate
(3) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the Work)
for not less than the following limits:
Bodily Injury:
$1,000,000 per person
$1,000,000 per occurrence
Property Damage:
$1,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that it has
complied with the above requirements regarding insurance and providing that the
insurer will give Landlord ten (10) days' prior written notice of the
cancellation of any of the foregoing policies.
30. Contractor shall require all of its subcontractors engaged in the Work
to provide the following insurance:
(1) Comprehensive General Liability Insurance including Protective
and Contractual Liability coverages with limits of liability at least equal to
the limits stated in paragraph2(b).
(2) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the Work)
with limits of liability at least equal to the limits stated in paragraph 2(c).
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of_________, 2000
Contractor:
By: __________________________
By: __________________________
By: __________________________
