NEW ENGLAND EXECUTIVE PARK
BUILDING EIGHT
BURLINGTON, MASSACHUSETTS
OFFICE LEASE AGREEMENT
BETWEEN
MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
UTIX GROUP, INC., A DELAWARE CORPORATION
("TENANT")
OFFICE LEASE AGREEMENT
THIS QFFICE LEASE AGREEMENT (The "LEASE") is made and entered into as of
the 14 day of September, 2004, by and between MA-NEW ENGLAND EXECUTIVE PARK,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("LANDLORD") and UTIX GROUP, INC.,
A DELAWARE CORPORATION ("TENANT"). The following exhibits and attachments are
incorporated into and made a part of the Lease: EXHIBIT A (Outline and Location
of Premises), EXHIBIT B (Expenses and Taxes), EXHIBIT C (Work Letter), EXHIBIT D
(Commencement Letter), EXHIBIT E (Building Rules and Regulations), EXHIBIT F
(Additional Provisions) and EXHIBIT G (Commencement Date Agreement [for
recording]).
1. BASIC LEASE INFORMATION.
1.01 "BUILDING" shall mean the building located at Eight New England
Executive Park, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, and commonly
known as Eight New England Executive Park. "RENTABLE SQUARE
FOOTAGE OF THE BUILDING" is deemed to be 218,512 square feet.
1.02 "PREMISES" shall mean the area shown on EXHIBIT A to this Lease.
The Premises is located on the 1st floor and known as suite 140.
If the Premises include one or more floors in their entirety,
all corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises. The "RENTABLE
SQUARE FOOTAGE OF THE PREMISES" is deemed to be 3,911 square
feet. Landlord and Tenant stipulate and agree that the Rentable
Square Footage of the Building and the Rentable Square Footage
of the Premises are correct.
1.03 "BASE RENT":
MONTHS OF TERM ANNUAL RATE MONTHLY
PER SQUARE FOOT BASE RENT
-------------- --------------- ---------
Months 1 - 62 $18.00 $5,866.50
Notwithstanding anything in this Section of this Lease to the
contrary, so long as Tenant is not in default under this Lease,
Tenant shall be entitled to an abatement of Base Rent in the
amount of $5,866.50 per month for 2 consecutive full calendar
months of the Term, beginning with the 1st full calendar month
of the Term (the "BASE RENT ABATEMENT PERIOD"). The total amount
of Base Rent abated during the Base Rent Abatement Period shall
equal $11,733.00 (the "ABATED BASE RENT"). If Tenant defaults at
any time during the Term and fails to cure such default within
any applicable cure period under this Lease, all Abated Base
Rent shall immediately become due and payable. The payment by
Tenant of the Abated Base Rent in the event of a default shall
not limit or affect any of Landlord's other rights, pursuant to
this Lease or at law or in equity. During the Base Rent
Abatement Period, only Base Rent shall be abated, and all
Additional Rent and other costs and charges specified in this
Lease shall remain as due and payable pursuant to the provisions
of this Lease.
1.04 "TENANT'S PRO RATA SHARE": 1.7898%.
1.05 "BASE YEAR" for Taxes (defined in EXHIBIT B): Fiscal Year
(defined below) 2005 (e.g., July 1, 2004 to June 30, 2005);
"BASE YEAR" for Expenses (defined in EXHIBIT B): calendar year
2004.
For purposes hereof, "FISCAL YEAR" shall mean the Base Year for
Taxes and each period of July 1 to June 30 thereafter.
1.06 "TERM": A period of 62 months. Subject to Section 3, the Term
shall commence on September 1, 2004 (the "COMMENCEMENT DATE")
and, unless terminated early in accordance with this Lease, end
on October 31, 2009 (the "TERMINATION DATE"). In addition, if
Tenant is entitled to register or record a notice or memorandum
of this Lease pursuant to the terms of Section 1.18, Landlord
and Tenant shall also execute and Tenant may register or record,
as appropriate, at Tenant's cost and expense, a Commencement
Date Agreement in the form attached as EXHIBIT G.
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1.07 Allowance(s): None.
1.08 "SECURITY DEPOSIT": $25,000.00, as more fully described in
Section 6.
1.09 "LETTER OF CREDIT": None.
1.10 "GUARANTOR(S)": As of the date of this Lease, there are no
Guarantors.
1.11 "BROKER(S)": Nagog Associates.
1.12 "PERMITTED USE": General office use.
1.13 "NOTICE ADDRESS(ES)":
Landlord: Tenant:
MA-New England Executive Park, L.L.C. UTIX Group, Inc.
x/x Xxxxxx Xxxxxx 0 Xxx Xxxxxxx Xxxxxxxxx Xxxx
000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Property Manager
A copy of any notices to Landlord shall be sent to Equity
Xxxxxx, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX
00000, Attn: Boston Regional Counsel.
A copy of any notices whereby Landlord is notifying Tenant of a
Tenant default under the Lease, or notifying Tenant of, or
responding to Tenant with respect to, any option rights of
Tenant under the Lease (as opposed to routine notices concerning
the operation of the Building) shall be sent to:
H. Xxxxx Xxxxxx, Esq.
Xxxxxx Law Xxxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
1.14 "BUSINESS DAY(S)" are Monday through Friday of each week,
exclusive of New Year's Day, Presidents Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day
("HOLIDAYS"). Landlord may designate additional Holidays that
are commonly recognized by other office buildings in the area
where the Building is located. "BUILDING SERVICE HOURS" are 8:00
A.M. to 6:00 P.M. on Business Days and 8:00 A.M. to 1:00 P.M. on
Saturdays.
1.15 "LANDLORD WORK" means the work that Landlord is obligated to
perform in the Premises pursuant to a separate agreement (the
"WORK LETTER"), attached to this Lease as EXHIBIT C.
1.16 "PROPERTY" means the Building and the parcel(s) of land on which
it is located and, at Landlord's discretion, the parking
facilities and other improvements, if any, serving the Building
and the parcel(s) of land on which they are located.
1.17 Notwithstanding anything to the contrary contained in Section 12
of the Lease, Landlord shall have the right to require Tenant to
post a performance or payment bond in connection with any work
or service done or purportedly done by or for the benefit of
Tenant. Tenant acknowledges and agrees that all such work or
service is being performed for the sole benefit of Tenant and
not for the benefit of Landlord.
1.18 Tenant shall not record this Lease or any memorandum or notice
without Landlord's prior written consent; provided, however,
Landlord agrees to consent to the recordation or registration of
a memorandum or notice of this Lease, at Tenant's cost and
expense (and in a form reasonably satisfactory to Landlord), if
the initial term of this Lease or the initial term plus renewal
terms granted exceed, in the aggregate, 7 years. If this Lease
is terminated before the Term expires, upon Landlord's request
the parties shall execute, deliver and record an instrument
acknowledging the above and the date of the termination of this
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Lease, and Tenant appoints Landlord its attorney-in-fact in its
name and behalf to execute the instrument if Tenant shall fail
to execute and deliver the instrument after Landlord's request
therefor within 10 days.
2. LEASE GRANT.
The Premises are hereby leased to Tenant from Landlord, together with
the right to use any portions of the Property that are designated by Landlord
for the common use of tenants and others (the "COMMON AREAS").
3. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
3.01 If Landlord is required to perform Landlord Work prior to the
Commencement Date: (a) the date set forth in Section 1.06 as the Commencement
Date shall instead be defined as the "TARGET COMMENCEMENT DATE"; (b) the actual
Commencement Date shall be the date on which the Landlord Work is Substantially
Complete (defined below); and (c) the Termination Date will be the last day of
the Term as determined based upon the actual Commencement Date. Landlord's
failure to Substantially Complete the Landlord Work by the Target Commencement
Date shall not be a default by Landlord or otherwise render Landlord liable for
damages. Promptly after the determination of the Commencement Date, Landlord and
Tenant shall enter into a commencement letter agreement in the form attached as
EXHIBIT D. If the Termination Date does not fall on the last day of a calendar
month, Landlord and Tenant may elect to adjust the Termination Date to the last
day of the calendar month in which Termination Date occurs by the mutual
execution of a commencement letter agreement setting forth such adjusted date.
The Landlord Work shall be deemed to be "SUBSTANTIALLY COMPLETE" on the date
that all Landlord Work has been performed, other than any details of
construction, mechanical adjustment or any other similar matter, the
non-completion of which does not materially interfere with Tenant's use of the
Premises. If Landlord is delayed in the performance of the Landlord Work as a
result of the acts or omissions of Tenant, the Tenant Related Parties (defined
in Section 13) or their respective contractors or vendors, including, without
limitation, changes requested by Tenant to approved plans, Tenant's failure to
comply with any of its obligations under this Lease, or the specification of any
materials or equipment with long lead times (a "TENANT DELAY"), the Landlord
Work shall be deemed to be Substantially Complete on the date that Landlord
could reasonably have been expected to Substantially Complete the Landlord Work
absent any Tenant Delay.
3.02 Subject to Landlord's obligation, if any, to perform Landlord Work,
the Premises are accepted by Tenant in "as is" condition and configuration
without any representations or warranties by Landlord. By taking possession of
the Premises, Tenant agrees that the Premises are in good order and satisfactory
condition. Landlord shall not be liable for a failure to deliver possession of
the Premises or any other space due to the holdover or unlawful possession of
such space by another party, however Landlord shall use reasonable efforts to
obtain possession of the space. The commencement date for the space, in such
event, shall be postponed until the date Landlord delivers possession of the
Premises to Tenant free from occupancy by any party. If Tenant takes possession
of the Premises before the Commencement Date, such possession shall be subject
to the terms and conditions of this Lease and Tenant shall pay Rent (defined in
Section 4.01) to Landlord for each day of possession before the Commencement
Date. However, except for the cost of services requested by Tenant (e.g. freight
elevator usage), Tenant shall not be required to pay Rent for any days of
possession before the Commencement Date during which Tenant, with the approval
of Landlord, is in possession of the Premises for the sole purpose of performing
improvements or installing furniture, equipment or other personal property.
3.03 Notwithstanding anything to the contrary contained herein, Landlord
and Tenant acknowledge and agree that the Premises shall be tendered to Tenant
with certain furniture and equipment (the "FURNITURE") of the prior tenant
remaining in the Premises. Although Landlord shall permit Tenant to utilize or
remove the Furniture, Landlord makes no representation or warranty as to the
ownership of the Furniture and Tenant shall utilize and/or dispose of the
Furniture at Tenant's sole risk. Tenant agrees to remove the Furniture from the
Premises on the earlier to occur of the Termination Date or the termination of
this Lease or Tenant's right to possession thereunder, at Tenant's sole cost and
expense, and to bear the costs of any repairs or restoration to the Premises
necessitated by such removal, provided that if Tenant leaves any Furniture in
the Premises, Landlord shall have the right to remove and dispose of the
Furniture and Tenant shall reimburse Landlord for the cost of such removal and
disposal and any repairs or restoration to the Premises necessitated by such
removal and disposal. Tenant shall indemnify, defend and hold Landlord harmless
from and against any
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and all claims, liabilities, damages or actions brought against or incurred by
Landlord by any parties claiming to have any interest in the Furniture.
4. RENT.
4.01 Tenant shall pay Landlord, without any setoff or deduction, unless
expressly set forth in this Lease, all Base Rent and Additional Rent due for the
Term (collectively referred to as "RENT"). "ADDITIONAL RENT" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord under this
Lease. Tenant shall pay and be liable for all rental, sales and use taxes (but
excluding income taxes), if any, imposed upon or measured by Rent. Base Rent and
recurring monthly charges of Additional Rent shall be due and payable in advance
on the first day of each calendar month without notice or demand, provided that
the installment of Base Rent for the 3rd full calendar month of the Term, and
the first monthly installment of Additional Rent for Expenses and Taxes, shall
be payable upon the execution of this Lease by Tenant. All other items of Rent
shall be due and payable by Tenant on or before 30 days after billing by
Landlord. Rent shall be made payable to the entity, and sent to the address,
Landlord designates and shall be made by good and sufficient check or by other
means acceptable to Landlord. Tenant shall pay Landlord an administration fee
equal to 5% of all past due Rent, provided that Tenant shall be entitled to a
grace period of 5 days for the first 2 late payments of Rent in a calendar year.
In addition, past due Rent shall accrue interest at 12% per annum. Landlord's
acceptance of less than the correct amount of Rent shall be considered a payment
on account of the earliest Rent due. Rent for any partial month during the Term
shall be prorated. No endorsement or statement on a check or letter accompanying
payment shall be considered an accord and satisfaction. Tenant's covenant to pay
Rent is independent of every other covenant in this Lease.
4.02 Tenant shall pay Tenant's Pro Rata Share of Taxes and Expenses in
accordance with EXHIBIT B of this Lease.
5. COMPLIANCE WITH LAWS; USE.
The Premises shall be used for the Permitted Use and for no other use
whatsoever. Tenant shall comply with all statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity whether in effect
now or later, including the Americans with Disabilities Act ("LAW(S)"),
regarding the operation of Tenant's business and the use, condition,
configuration and occupancy of the Premises. In addition, Tenant shall, at its
sole cost and expense, promptly comply with any Laws that relate to the "Base
Building" (defined below), but only to the extent such obligations are triggered
by Tenant's use of the Premises, other than for general office use, or
Alterations or improvements in the Premises performed or requested by Tenant.
"BASE BUILDING" shall include the structural portions of the Building, the
public restrooms and the Building mechanical, electrical and plumbing systems
and equipment located in the internal core of the Building on the floor or
floors on which the Premises are located. Tenant shall promptly provide Landlord
with copies of any notices it receives regarding an alleged violation of Law.
Tenant shall comply with the rules and regulations of the Building attached as
EXHIBIT E and such other reasonable rules and regulations adopted by Landlord
from time to time, including rules and regulations for the performance of
Alterations (defined in Section 9).
6. SECURITY DEPOSIT.
The Security Deposit, if any, shall be delivered to Landlord upon the
execution of this Lease by Tenant and held by Landlord without liability for
interest (unless required by Law) as security for the performance of Tenant's
obligations. The Security Deposit is not an advance payment of Rent or a measure
of damages. Landlord may use all or a portion of the Security Deposit to satisfy
past due Rent or to cure any Default (defined in Section 18) by Tenant. If
Landlord uses any portion of the Security Deposit, Tenant shall, within 5 days
after demand, restore the Security Deposit to its original amount. Landlord
shall return any unapplied portion of the Security Deposit to Tenant within 45
days after the later to occur of: (a) determination of the final Rent due from
Tenant; or (b) the later to occur of the Termination Date or the date Tenant
surrenders the Premises to Landlord in compliance with Section 25. Landlord may
assign the Security Deposit to a successor or transferee and, following the
assignment, Landlord shall have no further liability for the return of the
Security Deposit. Landlord shall not be required to keep the Security Deposit
separate from its other accounts.
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7. BUILDING SERVICES.
7.01 Landlord shall furnish Tenant with the following services: (a)
water for use in the Base Building lavatories; (b) customary heat and air
conditioning in season during Building Service Hours. Tenant shall have the
right to receive HVAC service during hours other than Building Service Hours by
paying Landlord's then standard charge for additional HVAC service and providing
such prior notice as is reasonably specified by Landlord; (c) standard
janitorial service on Business Days; (d) Elevator service; (e) Electricity in
accordance with the terms and conditions in Section 7.02; and (f) such other
services as Landlord reasonably determines are necessary or appropriate for the
Property.
7.02 Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (a) through inclusion in Expenses (except
as provided for excess usage); (b) by a separate charge payable by Tenant to
Landlord; or (c) by separate charge billed by the applicable utility company and
payable directly by Tenant. Without the consent of Landlord, Tenant's use of
electrical service shall not exceed, either in voltage, rated capacity, use
beyond Building Service Hours or overall load, that which Landlord reasonably
deems to be standard for the Building. Landlord shall have the right to measure
electrical usage by commonly accepted methods. If it is determined that Tenant
is using excess electricity, Tenant shall pay Landlord for the cost of such
excess electrical usage as Additional Rent.
7.03 Landlord's failure to furnish, or any interruption, diminishment or
termination of services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations, utility
interruptions or the occurrence of an event of Force Majeure (defined in Section
26.03) (collectively a "SERVICE FAILURE") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an abatement
of Rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement. However, if the Premises, or a material portion of the Premises, are
made untenantable for a period in excess of 3 consecutive Business Days as a
result of a Service Failure that is reasonably within the control of Landlord to
correct, then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the 4th
consecutive Business Day of the Service Failure and ending on the day the
service has been restored. If the entire Premises have not been rendered
untenantable by the Service Failure, the amount of abatement shall be equitably
prorated.
8. LEASEHOLD IMPROVEMENTS.
All improvements in and to the Premises, including any Alterations
(collectively, "LEASEHOLD IMPROVEMENTS") shall remain upon the Premises at the
end of the Term without compensation to Tenant. Landlord, however, by written
notice to Tenant at least 30 days prior to the Termination Date, may require
Tenant, at its expense, to remove (a) any Cable (defined in Section 9.01)
installed by or for the benefit of Tenant, and (b) any Landlord Work or
Alterations that, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "REQUIRED REMOVABLES"). Required Removables shall include,
without limitation, internal stairways, raised floors, personal baths and
showers, vaults, rolling file systems and structural alterations and
modifications. The designated Required Removables shall be removed by Tenant
before the Termination Date. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant fails to perform its
obligations in a timely manner, Landlord may perform such work at Tenant's
expense. Tenant, at the time it requests approval for a proposed Alteration, may
request in writing that Landlord advise Tenant whether the Alteration or any
portion of the Alteration is a Required Removable. Within 10 days after receipt
of Tenant's request, Landlord shall advise Tenant in writing as to which
portions of the Alteration are Required Removables.
9. REPAIRS AND ALTERATIONS.
9.01 Tenant shall periodically inspect the Premises to identify any
conditions that are dangerous or in need of maintenance or repair. Tenant shall
promptly provide Landlord with notice of any such conditions. Tenant shall, at
its sole cost and expense, perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and keep the
Premises in good condition and repair, reasonable wear and tear excepted.
Tenant's repair and maintenance obligations include, without limitation, repairs
to: (a) floor covering; (b) interior partitions; (c) doors; (d) the interior
side of demising walls; (e) electronic, phone and data cabling and related
equipment that is installed by or for the exclusive benefit of Tenant
(collectively, "CABLE"); (f) supplemental air conditioning units, kitchens,
including hot water heaters, plumbing, and similar facilities exclusively
serving Tenant;
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and (g) Alterations. To the extent Landlord is not reimbursed by insurance
proceeds, Tenant shall reimburse Landlord for the cost of repairing damage to
the Building caused by the acts of Tenant, Tenant Related Parties and their
respective contractors and vendors. If Tenant fails to make any repairs to the
Premises for more than 15 days after notice from Landlord (although notice shall
not be required in an emergency), Landlord may make the repairs, and Tenant
shall pay the reasonable cost of the repairs, together with an administrative
charge in an amount equal to 10% of the cost of the repairs.
9.02 Landlord shall keep and maintain in good repair and working order
and perform maintenance upon the: (a) structural elements of the Building; (b)
mechanical (including HVAC), electrical, plumbing and fire/life safety systems
serving the Building in general; (c) Common Areas; (d) roof of the Building; (e)
exterior windows of the Building; and (f) elevators serving the Building.
Landlord shall promptly make repairs for which Landlord is responsible.
9.03 Tenant shall not make alterations, repairs, additions or
improvements or install any Cable (collectively referred to as "ALTERATIONS")
without first obtaining the written consent of Landlord in each instance, which
consent shall not be unreasonably withheld or delayed. However, Landlord's
consent shall not be required for any Alteration that satisfies all of the
following criteria (a "COSMETIC ALTERATION"): (a) is of a cosmetic nature such
as painting, wallpapering, hanging pictures and installing carpeting; (b) is not
visible from the exterior of the Premises or Building; (c) will not affect the
Base Building; and (d) does not require work to be performed inside the walls or
above the ceiling of the Premises. Cosmetic Alterations shall be subject to all
the other provisions of this Section 9.03. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications; names of contractors reasonably
acceptable to Landlord (provided that Landlord may designate specific
contractors with respect to Base Building); required permits and approvals;
evidence of contractor's and subcontractor's insurance in amounts reasonably
required by Landlord and naming Landlord as an additional insured; and any
security for performance in amounts reasonably required by Landlord. Changes to
the plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and workmanlike manner
using materials of a quality reasonably approved by Landlord. Tenant shall
reimburse Landlord for any sums paid by Landlord for third party examination of
Tenant's plans for non-Cosmetic Alterations. In addition, Tenant shall pay
Landlord a fee for Landlord's oversight and coordination of any non-Cosmetic
Alterations equal to 10% of the cost of the Alterations. Upon completion, Tenant
shall furnish "as-built" plans for non-Cosmetic Alterations, completion
affidavits and full and final waivers of lien. Landlord's approval of an
Alteration shall not be deemed a representation by Landlord that the Alteration
complies with Law.
10. ENTRY BY LANDLORD.
Landlord may enter the Premises to inspect, show or clean the Premises
or to perform or facilitate the performance of repairs, alterations or additions
to the Premises or any portion of the Building. Except in emergencies or to
provide Building services, Landlord shall provide Tenant with reasonable prior
verbal notice of entry and shall use reasonable efforts to minimize any
interference with Tenant's use of the Premises. If reasonably necessary,
Landlord may temporarily close all or a portion of the Premises to perform
repairs, alterations and additions. However, except in emergencies, Landlord
will not close the Premises if the work can reasonably be completed on weekends
and after Building Service Hours. Entry by Landlord shall not constitute a
constructive eviction or entitle Tenant to an abatement or reduction of Rent.
11. ASSIGNMENT AND SUBLETTING.
11.01 Except in connection with a Permitted Transfer (defined in Section
11.04), Tenant shall not assign, sublease, transfer or encumber any interest in
this Lease or allow any third party to use any portion of the Premises
(collectively or individually, a "TRANSFER") without the prior written consent
of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed if Landlord does not exercise its recapture rights under Section 11.02.
If the entity which controls the voting shares/rights of Tenant changes at any
time, such change of ownership or control shall constitute a Transfer unless
Tenant is an entity whose outstanding stock is listed on a recognized securities
exchange or if at least 80% of its voting stock is owned by another entity, the
voting stock of which is so listed. Any attempted Transfer in violation of this
Section is voidable by Landlord. In no event shall any Transfer, including a
Permitted Transfer, release or relieve Tenant from any obligation under this
Lease.
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11.02 Tenant shall provide Landlord with financial statements for the
proposed transferee, a fully executed copy of the proposed assignment, sublease
or other Transfer documentation and such other information as Landlord may
reasonably request. Within 15 Business Days after receipt of the required
information and documentation, Landlord shall either: (a) consent to the
Transfer by execution of a consent agreement in a form reasonably designated by
Landlord; (b) reasonably refuse to consent to the Transfer in writing; or (c) in
the event of an assignment of this Lease or subletting of more than 20% of the
Rentable Area of the Premises for more than 50% of the remaining Term (excluding
unexercised options), recapture the portion of the Premises that Tenant is
proposing to Transfer. If Landlord exercises its right to recapture, this Lease
shall automatically be amended (or terminated if the entire Premises is being
assigned or sublet) to delete the applicable portion of the Premises effective
on the proposed effective date of the Transfer. Tenant shall pay Landlord a
review fee of $1,500.00 for Landlord's review of any Permitted Transfer or
requested Transfer.
11.03 Tenant shall pay Landlord 50% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of the Rent
payable to Landlord for the portion of the Premises and Term covered by the
Transfer. Tenant shall pay Landlord for Landlord's share of the excess within 30
days after Tenant's receipt of the excess. Tenant may deduct from the excess, on
a straight-line basis, all reasonable and customary expenses directly incurred
by Tenant attributable to the Transfer. If Tenant is in Default, Landlord may
require that all sublease payments be made directly to Landlord, in which case
Tenant shall receive a credit against Rent in the amount of Tenant's share of
payments received by Landlord.
11.04 Tenant may assign this Lease to a successor to Tenant by purchase,
merger, consolidation or reorganization (an "OWNERSHIP CHANGE") or assign this
Lease or sublet all or a portion of the Premises to an Affiliate without the
consent of Landlord, provided that all of the following conditions are satisfied
(a "PERMITTED TRANSFER"): (a) Tenant is not in Default; (b) in the event of an
Ownership Change, Tenant's successor shall own substantially all of the assets
of Tenant and have a net worth which is at least equal to Tenant's net worth as
of the day prior to the proposed Ownership Change; (c) the Permitted Use does
not allow the Premises to be used for retail purposes; and (d) Tenant shall give
Landlord written notice at least 15 Business Days prior to the effective date of
the Permitted Transfer. Tenant's notice to Landlord shall include information
and documentation evidencing the Permitted Transfer and showing that each of the
above conditions has been satisfied. If requested by Landlord, Tenant's
successor shall sign a commercially reasonable form of assumption agreement.
"AFFILIATE" shall mean an entity controlled by, controlling or under common
control with Tenant.
12. LIENS.
Tenant shall not permit mechanics' or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for the benefit of Tenant or its
transferees. Tenant shall give Landlord notice at least 15 days prior to the
commencement of any work in the Premises to afford Landlord the opportunity,
where applicable, to post and record notices of non-responsibility. Tenant,
within 10 days of notice from Landlord, shall fully discharge any lien by
settlement, by bonding or by insuring over the lien in the manner prescribed by
the applicable lien Law. If Tenant fails to do so, Landlord may bond, insure
over or otherwise discharge the lien. Tenant shall reimburse Landlord for any
amount paid by Landlord, including, without limitation, reasonable attorneys'
fees.
13. INDEMNITY AND WAIVER OF CLAIMS.
Tenant hereby waives all claims against and releases Landlord and its
trustees, members, principals, beneficiaries, partners, officers, directors,
employees, Mortgagees (defined in Section 23) and agents (the "LANDLORD RELATED
PARTIES") from all claims for any injury to or death of persons, damage to
property or business loss in any manner related to (a) Force Majeure, (b) acts
of third parties, (c) the bursting or leaking of any tank, water closet, drain
or other pipe, (d) the inadequacy or failure of any security services, personnel
or equipment, or (e) any matter not within the reasonable control of Landlord.
Except to the extent caused by the negligence or willful misconduct of Landlord
or any Landlord Related Parties, Tenant shall indemnify, defend and hold
Landlord and Landlord Related Parties harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other professional
fees (if and to the extent permitted by Law) (collectively referred to as
"LOSSES"), which may be imposed upon, incurred by or asserted against Landlord
or any of the Landlord Related Parties by any third party and arising out of or
in connection with any damage or injury occurring in the
7
Premises or any acts or omissions (including violations of Law) of Tenant, the
Tenant Related Parties or any of Tenant's transferees, contractors or licensees.
Except to the extent caused by the negligence or willful misconduct of Tenant or
any Tenant Related Parties, Landlord shall indemnify, defend and hold Tenant,
its trustees, members, principals, beneficiaries, partners, officers, directors,
employees and agents ("TENANT RELATED PARTIES") harmless against and from all
Losses which may be imposed upon, incurred by or asserted against Tenant or any
of the Tenant Related Parties by any third party and arising out of or in
connection with the acts or omissions (including violations of Law) of Landlord
or the Landlord Related Parties.
14. INSURANCE.
Tenant shall maintain the following insurance ("TENANT'S INSURANCE"):
(a) Commercial General Liability Insurance applicable to the Premises and its
appurtenances providing, on an occurrence basis, a minimum combined single limit
of $2,000,000.00; (b) Property/Business Interruption Insurance written on an All
Risk or Special Perils form, with coverage for broad form water damage including
earthquake sprinkler leakage, at replacement cost value and with a replacement
cost endorsement covering all of Tenant's business and trade fixtures,
equipment, movable partitions, furniture, merchandise and other personal
property within the Premises ("TENANT'S PROPERTY") and any Leasehold
Improvements performed by or for the benefit of Tenant; (c) Workers'
Compensation Insurance in amounts required by Law; and (d) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing Tenant's
Insurance shall have an A.M. Best rating of not less than A-VIII. All Commercial
General Liability Insurance policies shall name as additional insureds Landlord
(or its successors and assignees), the managing agent for the Building (or any
successor), EOP Operating Limited Partnership, Equity Office Properties Trust
and their respective members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and other designees of Landlord and its
successors as the interest of such designees shall appear. All policies of
Tenant's Insurance shall contain endorsements that the insurer(s) shall give
Landlord and its designees at least 30 days' advance written notice of any
cancellation, termination, material change or lapse of insurance. Tenant shall
provide Landlord with a certificate of insurance evidencing Tenant's Insurance
prior to the earlier to occur of the Commencement Date or the date Tenant is
provided with possession of the Premises, and thereafter as necessary to assure
that Landlord always has current certificates evidencing Tenant's Insurance. So
long as the same is available at commercially reasonable rates, Landlord shall
maintain so called All Risk property insurance on the Building at replacement
cost value as reasonably estimated by Landlord.
15. SUBROGATION.
Landlord and Tenant hereby waive and shall cause their respective
insurance carriers to waive any and all rights of recovery, claims, actions or
causes of action against the other for any loss or damage with respect to
Tenant's Property, Leasehold Improvements, the Building, the Premises, or any
contents thereof, including rights, claims, actions and causes of action based
on negligence, which loss or damage is (or would have been, had the insurance
required by this Lease been carried) covered by insurance.
16. CASUALTY DAMAGE.
16.01 If all or any portion of the Premises becomes untenantable by fire
or other casualty to the Premises (collectively a "CASUALTY"), Landlord, with
reasonable promptness, shall cause a general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of time
required using standard working methods to Substantially Complete the repair and
restoration of the premises and any common areas necessary TO provide access to
the Premises ("COMPLETION ESTIMATE"). If the Completion Estimate indicates that
the Premises or any Common Areas necessary to provide access to the Premises
cannot be made tenantable within 210 days from the date the repair is started,
then either party shall have the right to terminate this Lease upon written
notice to the other within 10 days after receipt of the Completion Estimate.
Tenant, however, shall not have the right to terminate this Lease if the
Casualty was caused by the negligence or intentional misconduct of Tenant or any
Tenant Related Parties. In addition, Landlord, by notice to Tenant within 90
days after the date of the Casualty, shall have the right to terminate this
Lease if: (1) the Premises have been materially damaged and there is less than 2
years of the Term remaining on the date of the Casualty; (2) any Mortgagee
requires that the insurance proceeds be applied to the payment of the mortgage
debt; or (3) a material uninsured loss to the Building occurs.
16.02 If this Lease is not terminated, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable
8
control, restore the Premises and Common Areas. Such restoration shall be to
substantially the same condition that existed prior to the Casualty, except for
modifications required by Law or any other modifications to the Common Areas
deemed desirable by Landlord. Upon notice from Landlord, Tenant shall assign to
Landlord (or to any party designated by Landlord) all property insurance
proceeds payable to Tenant under Tenant's Insurance with respect to any
Leasehold Improvements performed by or for the benefit of Tenant; provided if
the estimated cost to repair such Leasehold Improvements exceeds the amount of
insurance proceeds received by Landlord from Tenant's insurance carrier, the
excess cost of such repairs shall be paid by Tenant to Landlord prior to
Landlord's commencement of repairs. Within 15 days of demand, Tenant shall also
pay Landlord for any additional excess costs that are determined during the
performance of the repairs. Landlord shall not be liable for any inconvenience
to Tenant, or injury to Tenant's business resulting in any way from the Casualty
or the repair thereof. Provided that Tenant is not in Default, during any period
of time that all or a material portion of the Premises is rendered untenantable
as a result of a Casualty, the Rent shall xxxxx for the portion of the Premises
that is untenantable and not used by Tenant.
17. CONDEMNATION.
Either party may terminate this Lease if any material part of the
Premises is taken or condemned for any public or quasi-public use under Law, by
eminent domain or private purchase in lieu thereof (a "TAKING"). Landlord shall
also have the right to terminate this Lease if there is a Taking of any portion
of the Building or Property which would have a material adverse effect on
Landlord's ability to profitably operate the remainder of the Building. The
terminating party shall provide written notice of termination to the other party
within 45 days after it first receives notice of the Taking. The termination
shall be effective on the date the physical taking occurs. If this Lease is not
terminated, Base Rent and Tenant's Pro Rata Share shall be appropriately
adjusted to account for any reduction in the square footage of the Building or
Premises. All compensation awarded for a Taking shall be the property of
Landlord. The right to receive compensation or proceeds are expressly waived by
Tenant, however, Tenant may file a separate claim for Tenant's Property and
Tenant's reasonable relocation expenses, provided the filing of the claim does
not diminish the amount of Landlord's award. If only a part of the Premises is
subject to a Taking and this Lease is not terminated, Landlord, with reasonable
diligence, will restore the remaining portion of the Premises as nearly as
practicable to the condition immediately prior to the Taking.
18. EVENTS OF DEFAULT.
Each of the following occurrences shall be a "DEFAULT": (a) Tenant's
failure to pay any portion of Rent when due, if the failure continues for 3 days
after written notice to Tenant ("MONETARY DEFAULT"); (b) Tenant's failure (other
than a Monetary Default) to comply with any term, provision, condition or
covenant of this Lease, if the failure is not cured within 10 days after written
notice to Tenant provided, however, if Tenant's failure to comply cannot
reasonably be cured within 10 days, Tenant shall be allowed additional time (not
to exceed 60 days) as is reasonably necessary to cure the failure so long as
Tenant begins the cure within 10 days and diligently pursues the cure to
completion; (c) Tenant or any Guarantor becomes insolvent, makes a transfer in
fraud of creditors, makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts when due or forfeits or loses its right
to conduct business; (d) the leasehold estate is taken by process or operation
of Law; (e) in the case of any ground floor or retail Tenant, Tenant does not
take possession of or abandons or vacates all or any portion of the Premises; or
(f) Tenant is in default beyond any notice and cure period under any other lease
or agreement with Landlord at the Building or Property. If Landlord provides
Tenant with notice of Tenant's failure to comply with any specific provision of
this Lease on 3 separate occasions during any 12 month period, Tenant's
subsequent violation of such provision shall, at Landlord's option, be an
incurable Default by Tenant. All notices sent under this Section shall be in
satisfaction of, and not in addition to, notice required by Law.
19. REMEDIES.
19.01 Upon Default, Landlord shall have the right to pursue any one or
more of the following remedies:
(a) Terminate this Lease, in which case Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails to surrender the
Premises, Landlord, in compliance with Law, may enter upon and take possession
of the Premises and remove Tenant, Tenant's Property and any party occupying the
Premises. Tenant shall pay Landlord, on demand, all past due Rent and other
losses and damages Landlord suffers as a result of Tenant's Default, including,
without limitation, all Costs of Reletting (defined below) and any deficiency
that may
9
arise from reletting or the failure to relet the Premises. "COSTS OF RELETTING"
shall include all reasonable costs and expenses incurred by Landlord in
reletting or attempting to relet the Premises, including, without limitation,
legal fees, brokerage commissions, the cost of alterations and the value of
other concessions or allowances granted to a new tenant.
(b) Terminate Tenant's right to possession of the Premises
and, in compliance with Law, remove Tenant, Tenant's Property and any parties
occupying the Premises. Landlord may (but shall not be obligated to) relet all
or any part of the Premises, without notice to Tenant, for such period of time
and on such terms and conditions (which may include concessions, free rent and
work allowances) as Landlord in its absolute discretion shall determine.
Landlord may collect and receive all rents and other income from the reletting.
Tenant shall pay Landlord on demand all past due Rent, all Costs of Reletting
and any deficiency arising from the reletting or failure to relet the Premises.
The re-entry or taking of possession of the Premises shall not be construed as
an election by Landlord to terminate this Lease.
19.02 In lieu of calculating damages under Section 19.01, Landlord may elect to
receive as damages the sum of (a) all Rent accrued through the date of
termination of this Lease or Tenant's right to possession, and (b) an amount
equal to the total Rent that Tenant would have been required to pay for the
remainder of the Term discounted to present value, minus the then present fair
rental value of the Premises for the remainder of the Term, similarly
discounted, after deducting all anticipated Costs of Reletting. If Tenant is in
Default of any of its nonmonetary obligations under the Lease, Landlord shall
have the right to perform such obligations. Tenant shall reimburse Landlord for
the cost of such performance upon demand together with an administrative charge
equal to 10% of the cost of the work performed by Landlord. The repossession or
re-entering of all or any part of the Premises shall not relieve Tenant of its
liabilities and obligations under this Lease. No right or remedy of Landlord
shall be exclusive of any other right or remedy. Each right and remedy shall be
cumulative and in addition to any other right and remedy now or subsequently
available to Landlord at Law or in equity.
20. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE
LESSER OF (A) THE INTEREST OF LANDLORD IN THE PROPERTY, OR (B) THE EQUITY
INTEREST LANDLORD WOULD HAVE IN THE PROPERTY IF THE PROPERTY WERE ENCUMBERED BY
THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 70% OF THE VALUE OF THE PROPERTY. TENANT
SHALL LOOK SOLELY TO LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER
LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY
JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY MORTGAGEES OR ANY
LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR
LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE.
BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE
LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN SECTION 23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED
DEFAULT.
21. RELOCATION.
Landlord, at its expense, at any one time before or during the Term, may
relocate Tenant from the Premises to space of reasonably comparable size and
utility ("RELOCATION SPACE") within the Building or adjacent buildings within
the same project upon 60 days' prior written notice to Tenant. From and after
the date of the relocation, the Base Rent and Tenant's Pro Rata Share shall be
adjusted based on the rentable square footage of the Relocation Space. Landlord
shall pay Tenant's reasonable costs of relocation, including all costs for
moving Tenant's furniture, equipment, supplies and other personal property, as
well as the cost of printing and distributing change of address notices to
Tenant's customers and one month's supply of stationery showing the new address.
22. HOLDING OVER.
If Tenant fails to surrender all or any part of the Premises at the
termination of this Lease, occupancy of the Premises after termination shall be
that of a tenancy at sufferance. Tenant's occupancy shall be subject to all the
terms and provisions of this Lease, and Tenant shall pay
10
an amount (on a per month basis without reduction for partial months during the
holdover) equal to 150% of the sum of the Base Rent and Additional Rent due for
the period immediately preceding the holdover. No holdover by Tenant or payment
by Tenant after the termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. If Landlord is unable to deliver possession
of the Premises to a new tenant or to perform improvements for a new tenant as a
result of Tenant's holdover and Tenant fails to vacate the Premises within 15
days after notice from Landlord, Tenant shall be liable for all damages that
Landlord suffers from the holdover.
23. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "MORTGAGE").
The party having the benefit of a Mortgage shall be referred to as a
"MORTGAGEE". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. As an alternative, a Mortgagee shall have
the right at any time to subordinate its Mortgage to this Lease. Upon request,
Tenant, without charge, shall attorn to any successor to Landlord's interest in
this Lease. Landlord and Tenant shall each, within 10 days after receipt of a
written request from the other, execute and deliver a commercially reasonable
estoppel certificate to those parties as are reasonably requested by the other
(including a Mortgagee or prospective purchaser). Without limitation, such
estoppel certificate may include a certification as to the status of this Lease,
the existence of any defaults and the amount of Rent that is due and payable.
24. NOTICE.
All demands, approvals, consents or notices (collectively referred to as
a "NOTICE") shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Section 1. Each notice shall be deemed to have been received on the earlier to
occur of actual delivery or the date on which delivery is refused, or, if Tenant
has vacated the Premises or any other Notice Address of Tenant without providing
a new Notice Address, 3 days after notice is deposited in the U.S. mail or with
a courier service in the manner described above. Either party may, at any time,
change its Notice Address (other than to a post office box address) by giving
the other party written notice of the new address.
25. SURRENDER OF PREMISES.
At the termination of this Lease or Tenant's right of possession, Tenant
shall remove Tenant's Property from the Premises, and quit and surrender the
Premises to Landlord, broom clean, and in good order, condition and repair,
ordinary wear and tear and damage which Landlord is obligated to repair
hereunder excepted. If Tenant fails to remove any of Tenant's Property within 2
days after termination of this Lease or Tenant's right to possession, Landlord,
at Tenant's sole cost and expense, shall be entitled (but not obligated) to
remove and store Tenant's Property. Landlord shall not be responsible for the
value, preservation or safekeeping of Tenant's Property. Tenant shall pay
Landlord, upon demand, the expenses and storage charges incurred. If Tenant
fails to remove Tenant's Property from the Premises or storage, within 30 days
after notice, Landlord may deem all or any part of Tenant's Property to be
abandoned and title to Tenant's Property shall vest in Landlord.
26. MISCELLANEOUS.
26.01 This Lease shall be interpreted and enforced in accordance with
the Laws of the state or commonwealth in which the Building is located and
Landlord and Tenant hereby irrevocably consent to the jurisdiction and proper
venue of such state or commonwealth. If any term or provision of this Lease
shall to any extent be void or unenforceable, the remainder of this Lease shall
not be affected. If there is more than one Tenant or if Tenant is comprised of
more than one party or entity, the obligations imposed upon Tenant shall be
joint and several obligations of all the parties and entities, and requests or
demands from any one person or entity comprising Tenant shall be deemed to have
been made by all such persons or entities. Notices to any one person or entity
shall be deemed to have been given to all persons and entities. Tenant
represents and warrants to Landlord that each individual executing this Lease on
behalf of Tenant is authorized to do so on behalf of Tenant and that Tenant is
not, and the entities or individuals constituting Tenant or which may own or
control Tenant or which may be
11
owned or controlled by Tenant are not, among the individuals or entities
identified on any list compiled pursuant to Executive Order 13224 for the
purpose of identifying suspected terrorists.
26.02 If either party institutes a suit against the other for violation
of or to enforce any covenant, term or condition of this Lease, the prevailing
party shall be entitled to all of its costs and expenses, including, without
limitation, reasonable attorneys' fees. Landlord and Tenant hereby waive any
right to trial by jury in any proceeding based upon a breach of this Lease.
Either party's failure to declare a default immediately upon its occurrence, or
delay in taking action for a default, shall not constitute a waiver of the
default, nor shall it constitute an estoppel.
26.03 Whenever a period of time is prescribed for the taking of an
action by Landlord or Tenant (other than the payment of the Security Deposit or
Rent), the period of time for the performance of such action shall be extended
by the number of days that the performance is actually delayed due to strikes,
acts of God, shortages of labor or materials, war, terrorist acts, civil
disturbances and other causes beyond the reasonable control of the performing
party ("FORCE MAJEURE").
26.04 Landlord shall have the right to transfer and assign, in whole or
in part, all of its rights and obligations under this Lease and in the Building
and Property. Upon transfer Landlord shall be released from any further
obligations hereunder and Tenant agrees to look solely to the successor in
interest of Landlord for the performance of such obligations, provided that, any
successor pursuant to a voluntary, third party transfer (but not as part of an
involuntary transfer resulting from a foreclosure or deed in lieu thereof) shall
have assumed Landlord's obligations under this Lease.
26.05 Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only and the delivery of it does not constitute an offer to Tenant or an
option. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall indemnify and
hold Landlord and the Landlord Related Parties harmless from all claims of any
other brokers claiming to have represented Tenant in connection with this Lease.
Landlord shall indemnify and hold Tenant and the Tenant Related Parties harmless
from all claims of any brokers claiming to have represented Landlord in
connection with this Lease.
26.06 Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. The expiration of the
Term, whether by lapse of time, termination or otherwise, shall not relieve
either party of any obligations which accrued prior to or which may continue to
accrue after the expiration or termination of this Lease.
26.07 Tenant may peacefully have, hold and enjoy the Premises, subject
to the terms of this Lease, provided Tenant pays the Rent and fully performs all
of its covenants and agreements. This covenant shall be binding upon Landlord
and its successors only during its or their respective periods of ownership of
the Building.
26.08 This Lease does not grant any rights to light or air over or about
the Building. Landlord excepts and reserves exclusively to itself any and all
rights not specifically granted to Tenant under this Lease. This Lease
constitutes the entire agreement between the parties and supersedes all prior
agreements and understandings related to the Premises, including all lease
proposals, letters of intent and other documents. Neither party is relying upon
any warranty, statement or representation not contained in this Lease. This
Lease may be modified only by a written agreement signed by an authorized
representative of Landlord and Tenant.
12
Landlord and Tenant have executed this Lease as of the day and year
first above written.
WITNESS/ATTEST: LANDLORD:
MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: Equity Office Management, L.L.C., a Delaware
limited liability company, its non-memeber
manager
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President - Leasing Boston Region
/s/ Xxx Xxxx
-------------------------
Name (print): Xxx Xxxx
_________________________
Name (print):____________
WITNESS/ATTEST: TENANT:
UTIX GROUP, INC., A DELAWARE CORPORATION
/s/Xxxxxxx X. Xxxxxx
------------------------- By: /s/ Xxxx X. Xxxxx
Name (print): Xxxxxxx Xxxxxx ----------------------------------------------
_________________________ Name: Xxxx X. Xxxxx
Name (print): ___________ Title: CFO
00-0000000
--------------------------------------------------
Tenant's Tax ID Number (SSN or FEIN)
13
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
[graphic omitted]
1
EXHIBIT B
EXPENSES AND TAXES
This Exhibit is attached to and made a part of the Lease by and between
MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and UTIX GROUP, INC., A DELAWARE CORPORATION ("Tenant") for space
in the Building located at Eight New England Executive Park, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000.
1. PAYMENTS.
1.01 Tenant shall pay Tenant's Pro Rata Share of the amount, if any, by
which Expenses (defined below) for each calendar year during the Term exceed
Expenses for the Base Year (the "EXPENSE EXCESS") and also the amount, if any,
by which Taxes (defined below) for each Fiscal Year during the Term exceed Taxes
for the Base Year (the "TAX EXCESS"). If Expenses or Taxes in any calendar year
or Fiscal Year decrease below the amount of Expenses or Taxes for the Base Year,
Tenant's Pro Rata Share of Expenses or Taxes, as the case may be, for that
calendar year or Fiscal Year shall be $0. Landlord shall provide Tenant with a
good faith estimate of the Expense Excess and of the Tax Excess for each
calendar year or Fiscal Year during the Term. On or before the first day of each
month, Tenant shall pay to Landlord a monthly installment equal to one-twelfth
of Tenant's Pro Rata Share of Landlord's estimate of both the Expense Excess and
Tax Excess. After its receipt of the revised estimate, Tenant's monthly payments
shall be based upon the revised estimate. If Landlord does not provide Tenant
with an estimate of the Expense Excess or the Tax Excess by January 1 of a
calendar year, Tenant shall continue to pay monthly installments based on the
previous year's estimate(s) until Landlord provides Tenant with the new
estimate.
1.02 As soon as is practical following the end of each calendar year or
Fiscal Year, as the case may be, Landlord shall furnish Tenant with a statement
of the actual Expenses and Expense Excess and the actual Taxes and Tax Excess
for the prior calendar year or Fiscal Year, as the case may be. If the estimated
Expense Excess or estimated Tax Excess for the prior calendar year or Fiscal
Year, as the case may be, is more than the actual Expense Excess or actual Tax
Excess for the prior calendar year or Fiscal Year, as the case may be, Landlord
shall either provide Tenant with a refund or apply any overpayment by Tenant
against Additional Rent due or next becoming due, provided if the Term expires
before the determination of the overpayment, Landlord shall refund any
overpayment to Tenant after first deducting the amount of Rent due. If the
estimated Expense Excess or estimated Tax Excess for the prior calendar year or
Fiscal Year, as the case may be, is less than the actual Expense Excess or
actual Tax Excess, for such prior calendar year or Fiscal Year, as the case may
be, Tenant shall pay Landlord, within 30 days after its receipt of the statement
of Expenses or Taxes, any underpayment for the prior calendar year or Fiscal
Year, as the case may be.
2. EXPENSES.
2.01 "EXPENSES" means all costs and expenses incurred in each calendar
year in connection with operating, maintaining, repairing, and managing the
Building and the Property. Expenses include, without limitation: (a) all labor
and labor related costs, including wages, salaries, bonuses, taxes, insurance,
uniforms, training, retirement plans, pension plans and other employee benefits;
(b) management fees; (c) the cost of equipping, staffing and operating an
on-site and/or off-site management office for the Building, provided if the
management office services one or more other buildings or properties, the shared
costs and expenses of equipping, staffing and operating such management
office(s) shall be equitably prorated and apportioned between the Building and
the other buildings or properties; (d) accounting costs; (e) the cost of
services; (f) rental and purchase cost of parts, supplies, tools and equipment;
(g) insurance premiums and deductibles; (h) electricity, gas and other utility
costs; and (i) the amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course of business)
made subsequent to the Base Year which are: (1) performed primarily to reduce
current or future operating expense costs, upgrade Building security or
otherwise improve the operating efficiency of the Property; or (2) required to
comply with any Laws that are enacted, or first interpreted to apply to the
Property, after the date of this Lease. The cost of capital improvements shall
be amortized by Landlord over the lesser of the Payback Period (defined below)
or the useful life of the capital improvement as reasonably determined by
Landlord. The amortized cost of capital improvements may, at Landlord's option,
include actual or imputed interest at the rate that Landlord would reasonably be
required to pay to finance the cost of the capital improvement. "PAYBACK PERIOD"
means the reasonably estimated period of time that it takes for the cost savings
resulting from a capital improvement to equal the total cost of the capital
improvement.
1
Landlord, by itself or through an affiliate, shall have the right to directly
perform, provide and be compensated for any services under this Lease. If
Landlord incurs Expenses for the Building or Property together with one or more
other buildings or properties, whether pursuant to a reciprocal easement
agreement, common area agreement or otherwise, the shared costs and expenses
shall be equitably prorated and apportioned between the Building and Property
and the other buildings or properties.
2.02 Expenses shall not include: the cost of capital improvements
(except as set forth above); depreciation; principal payments of mortgage and
other non-operating debts of Landlord; the cost of repairs or other work to the
extent Landlord is reimbursed by insurance or condemnation proceeds; costs in
connection with leasing space in the Building, including brokerage commissions;
lease concessions, rental abatements and construction allowances granted to
specific tenants; costs incurred in connection with the sale, financing or
refinancing of the Building; fines, interest and penalties incurred due to the
late payment of Taxes or Expenses; organizational expenses associated with the
creation and operation of the entity which constitutes Landlord; or any
penalties or damages that Landlord pays to Tenant under this Lease or to other
tenants in the Building under their respective leases.
2.03 If at any time during a calendar year the Building is not at least
95% occupied or Landlord is not supplying services to at least 95% of the total
Rentable Square Footage of the Building, Expenses shall, at Landlord's option,
be determined as if the Building had been 95% occupied and Landlord had been
supplying services to 95% of the Rentable Square Footage of the Building. If
Expenses for a calendar year are determined as provided in the prior sentence,
Expenses for the Base Year shall also be determined in such manner.
Notwithstanding the foregoing, Landlord may calculate the extrapolation of
Expenses under this Section based on 100% occupancy and service so long as such
percentage is used consistently for each year of the Term. The extrapolation of
Expenses under this Section shall be performed in accordance with the
methodology specified by the Building Owners and Managers Association.
3. "TAXES" shall mean: (a) all real property taxes and other assessments on the
Building and/or Property, including, but not limited to, gross receipts taxes,
assessments for special improvement districts and building improvement
districts, governmental charges, fees and assessments for police, fire, traffic
mitigation or other governmental service of purported benefit to the Property,
taxes and assessments levied in substitution or supplementation in whole or in
part of any such taxes and assessments and the Property's share of any real
estate taxes and assessments under any reciprocal easement agreement, common
area agreement or similar agreement as to the Property; (b) all personal
property taxes for property that is owned by Landlord and used in connection
with the operation, maintenance and repair of the Property; and (c) all costs
and fees incurred in connection with seeking reductions in any tax liabilities
described in (a) and (b), including, without limitation, any costs incurred by
Landlord for compliance, review and appeal of tax liabilities. Without
limitation, Taxes shall not include any income, capital levy, transfer, capital
stock, gift, estate or inheritance tax. If a change in Taxes is obtained for any
year of the Term during which Tenant paid Tenant's Pro Rata Share of any Tax
Excess, then Taxes for that year will be retroactively adjusted and Landlord
shall provide Tenant with a credit, if any, based on the adjustment. Likewise,
if a change is obtained for Taxes for the Base Year, Taxes for the Base Year
shall be restated and the Tax Excess for all subsequent years shall be
recomputed. Tenant shall pay Landlord the amount of Tenant's Pro Rata Share of
any such increase in the Tax Excess within 30 days after Tenant's receipt of a
statement from Landlord.
4. AUDIT RIGHTS. Tenant, within 365 days after receiving Landlord's statement of
Expenses, may give Landlord written notice ("REVIEW NOTICE") that tenant intends
to review Landlord's records of the expenses for the calendar year to which the
statement applies. Within a reasonable time after receipt of the review notice,
Landlord shall make all pertinent records available for inspection that are
reasonably necessary for Tenant to conduct its review. If any records are
maintained at a location other than the management office for the Building,
Tenant may either inspect the records at such other location or pay for the
reasonable cost of copying and shipping the records. If Tenant retains an agent
to review Landlord's records, the agent must be with a CPA firm licensed to do
business in the state or commonwealth where the Property is located. Tenant
shall be solely responsible for all costs, expenses and fees incurred for the
audit. Within 90 days after the records are made available to Tenant, Tenant
shall have the right to give Landlord written notice (an "OBJECTION NOTICE")
stating in reasonable detail any objection to Landlord's statement of Expenses
for that year. If Tenant fails to give Landlord an Objection Notice within the
90 day period or fails to provide Landlord with a Review Notice within the 365
day period described above, Tenant shall be deemed to have approved Landlord's
statement of Expenses and shall be barred from raising any claims regarding the
Expenses for that year. The records obtained by Tenant shall be treated as
confidential. In no
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event shall Tenant be permitted to examine Landlord's records or to dispute any
statement of Expenses unless Tenant has paid and continues to pay all Rent when
due.
EXHIBIT C
WORK LETTER
This Exhibit is attached to and made a part of the Lease by and between
MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and UTIX GROUP, INC., A DELAWARE CORPORATION ("Tenant") for space
in the Building located at Eight New England Executive Park, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000.
As used in this Work Letter, the "PREMISES" shall be deemed to mean the
Premises, as initially defined in the attached Lease.
1. Landlord shall perform improvements to the Premises in accordance with
the plan SK-2 prepared by Xxxxx X. Xxxxx, AIA, dated June 30, 2004 (the
"PLANS"). The improvements to be performed by Landlord in accordance
with the Plans are hereinafter referred to as the "LANDLORD WORK". It is
agreed that construction of the Landlord Work will be completed at
Landlord's sole cost and expense (subject to the terms of Section 2
below) using building standard methods, materials and finishes. Landlord
shall enter into a direct contract for the Landlord Work with a general
contractor selected by Landlord. In addition, Landlord shall have the
right to select and/or approve of any subcontractors used in connection
with the Landlord Work. Landlord's supervision or performance of any
work for or on behalf of Tenant shall not be deemed a representation by
Landlord that such Plans or the revisions thereto comply with applicable
insurance requirements, building codes, ordinances, laws or regulations,
or that the improvements constructed in accordance with the Plans and
any revisions thereto will be adequate for Tenant's use, it being agreed
that Tenant shall be responsible for all elements of the design of the
Plans (including, without limitation, compliance with law, functionality
of design, the structural integrity of the design, the configuration of
the premises and the placement of Tenant's furniture, appliances and
equipment).
2. If Tenant shall request any revisions to the Plans, Landlord shall have
such revisions prepared at Tenant's sole cost and expense and Tenant
shall reimburse Landlord for the cost of preparing any such revisions to
the Plans, plus any applicable state sales or use tax thereon, upon
demand. Promptly upon completion of the revisions, Landlord shall notify
Tenant in writing of the increased cost in the Landlord Work, if any,
resulting from such revisions to the Plans. Tenant, within one Business
Day, shall notify Landlord in writing whether it desires to proceed with
such revisions. In the absence of such written authorization, Landlord
shall have the option to continue work on the Premises disregarding the
requested revision. Tenant shall be responsible for any Tenant Delay in
completion of the Premises resulting from any revision to the Plans. If
such revisions result in an increase in the cost of Landlord Work, such
increased costs, plus any applicable state sales or use tax thereon,
shall be payable by Tenant upon demand. Notwithstanding anything herein
to the contrary, all revisions to the Plans shall be subject to the
approval of Landlord.
3. This Exhibit shall not be deemed applicable to any additional space
added to the Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of the original
Premises or any additions to the Premises in the event of a renewal or
extension of the original Term of the Lease, whether by any options
under the Lease or otherwise, unless expressly so provided in the Lease
or any amendment or supplement to the Lease.
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EXHIBIT D
COMMENCEMENT LETTER
(EXAMPLE)
Date ___________________________
Tenant ___________________________
Address ___________________________
___________________________
___________________________
Re: Commencement Letter with respect to that certain Lease dated as of the
___ day of ____, ____ by and between MA-NEW ENGLAND EXECUTIVE PARK,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, as Landlord, and UTIX
GROUP, INC., A DELAWARE CORPORATION, as Tenant, for ____ rentable square
feet on the ____ floor of the Building located at Eight New England
Executive Park, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
Dear _____________________________:
In accordance with the terms and conditions of the above referenced
Lease, Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is _________________________;
2. The Termination Date of the Lease is _________________________.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all 3 counterparts of this Commencement Letter
in the space provided and returning 2 fully executed counterparts to my
attention.
Sincerely,
____________________________
Authorized Signatory
Agreed and Accepted:
Tenant: UTIX GROUP, INC., A DELAWARE CORPORATION
By: ________________________
Name: ________________________
Title: ________________________
Date: ________________________
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EXHIBIT E
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking facilities (if any), the Property and
the appurtenances. In the event of a conflict between the following rules and
regulations and the remainder of the terms of the Lease, the remainder of the
terms of the Lease shall control. Capitalized terms have the same meaning as
defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material shall be placed, emptied, or thrown
in those areas. At no time shall Tenant permit Tenant's employees to
loiter in Common Areas or elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees shall be paid for by Tenant and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of such
color, size, style and in such places as are first approved in writing
by Landlord. All tenant identification and suite numbers at the entrance
to the Premises shall be installed by Landlord, at Tenant's cost and
expense, using the standard graphics for the Building. Except in
connection with the hanging of lightweight pictures and wall
decorations, no nails, hooks or screws shall be inserted into any part
of the Premises or Building except by the Building maintenance personnel
without Landlord's prior approval, which approval shall not be
unreasonably withheld.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device
listing tenants and no other directory shall be permitted unless
previously consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or
Building without Landlord's prior written consent, which consent shall
not be unreasonably withheld, and Landlord shall have the right at all
times to retain and use keys or other access codes or devices to all
locks within and into the Premises. A reasonable number of keys to the
locks on the entry doors in the Premises shall be furnished by Landlord
to Tenant at Tenant's cost and Tenant shall not make any duplicate keys.
All keys shall be returned to Landlord at the expiration or early
termination of the Lease.
6. All contractors, contractor's representatives and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval, which approval shall not be unreasonably
withheld, and shall be required to comply with Landlord's standard
rules, regulations, policies and procedures, which may be revised from
time to time. Landlord has no obligation to allow any particular
telecommunication service provider to have access to the Building or to
the Premises. If Landlord permits access, Landlord may condition the
access upon the payment to Landlord by the service provider of fees
assessed by Landlord in Landlord's sole discretion.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the
use of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours reasonably designated by Landlord. Tenant shall
obtain Landlord's prior approval by providing a detailed listing of the
activity, which approval shall not be unreasonably withheld. If approved
by Landlord, the activity shall be under the supervision of Landlord and
performed in the manner required by Landlord. Tenant shall assume all
risk for damage to articles moved and injury to any persons resulting
from the activity. If equipment, property, or personnel of Landlord or
of any other party is damaged or injured as a result of or in connection
with the activity, Tenant shall be solely liable for any resulting
damage, loss or injury.
8. Landlord shall have the right to approve the weight, size, or location
of heavy equipment or articles in and about the Premises, which approval
shall not be unreasonably
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withheld. Damage to the Building by the installation, maintenance,
operation, existence or removal of Tenant's Property shall be repaired
at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in
any way with other tenants or persons having business with them; (2)
solicit business or distribute or cause to be distributed, in any
portion of the Building, handbills, promotional materials or other
advertising; or (3) conduct or permit other activities in the Building
that might, in Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be
used or kept by Tenant in the Premises, Building or about the Property,
except for those substances as are typically found in similar premises
used for general office purposes and are being used by Tenant in a safe
manner and in accordance with all applicable Laws. Tenant shall not,
without Landlord's prior written consent, use, store, install, spill,
remove, release or dispose of, within or about the Premises or any other
portion of the Property, any asbestos-containing materials or any solid,
liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq., M.G.L.
c. 21C, M.G.L. c. 21E or any other applicable environmental Law which
may now or later be in effect. Tenant shall comply with all Laws
pertaining to and governing the use of these materials by Tenant and
shall remain solely liable for the costs of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or
future value of the Premises or the Building. Tenant shall not use, or
permit any part of the Premises to be used for lodging, sleeping or for
any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor
disruption or dispute or interfere with Landlord's or any other tenant's
or occupant's business or with the rights and privileges of any person
lawfully in the Building ("LABOR DISRUPTION"). Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have
pickets removed and, at the request of Landlord, immediately terminate
any work in the Premises that gave rise to the Labor Disruption, until
Landlord gives its written consent for the work to resume. Tenant shall
have no claim for damages against Landlord or any of the Landlord
Related Parties nor shall the Commencement Date of the Term be extended
as a result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the
use of electric or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to
service the Building.
16. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes and other
goods), except for machines for the exclusive use of Tenant's employees
and invitees.
17. Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by
Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building and Property, their occupants,
entry, use and contents. Tenant, its agents, employees, contractors,
guests and invitees shall comply with Landlord's systems and procedures.
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19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole
opinion may impair the reputation of the Building or its desirability.
Upon written notice from Landlord, Tenant shall refrain from and
discontinue such publicity immediately.
20. Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless a
portion of the Common Areas have been declared a designated smoking area
by Landlord, nor shall the above parties allow smoke from the Premises
to emanate into the Common Areas or any other part of the Building.
Landlord shall have the right to designate the Building (including the
Premises) as a non-smoking building.
21. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
22. Deliveries to and from the Premises shall be made only at the times in
the areas and through the entrances and exits reasonably designated by
Landlord. Tenant shall not make deliveries to or from the Premises in a
manner that might interfere with the use by any other tenant of its
premises or of the Common Areas, any pedestrian use, or any use which is
inconsistent with good business practice.
23. The work of cleaning personnel shall not be hindered by Tenant after
5:30 P.M., and cleaning work may be done at any time when the offices
are vacant. Windows, doors and fixtures may be cleaned at any time.
Tenant shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
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EXHIBIT F
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease by and between
MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and UTIX GROUP, INC., A DELAWARE CORPORATION ("Tenant") for space
in the Building located at Eight New England Executive Park, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000.
PARKING.
1.01 During the initial Term, Tenant agrees to lease from Landlord
and Landlord agrees to lease to Tenant a total of 13 unreserved
parking spaces (the "SPACES"), for the use of Tenant and its
employees, in the parking facility owned by Landlord that serves
the Building (the "PARKING FACILITY"), and if the Parking
Facility includes a garage, then such Spaces may be in such
garage. No deductions or allowances shall be made for days when
Tenant or any of its employees does not utilize the Parking
Facility or for Tenant utilizing less than all of the Spaces.
Tenant shall not have the right to lease or otherwise use more
than the number of reserved and unreserved Spaces set forth
above.
1.02 During the initial Term, Tenant shall pay Landlord, as
Additional Rent in accordance with Section 4 of the Lease, the
sum of $0.00 per month, plus applicable tax thereon, if any, for
each unreserved Space leased by Tenant hereunder, as such rate
may be adjusted from time-to-time to reflect the then current
rate for parking in the Parking Facility.
1.03 Except for particular spaces and areas designated by Landlord
for reserved parking, all parking in the Parking Facility shall
be on an unreserved, first-come, first-served basis.
1.04 Landlord shall not be responsible for money, jewelry,
automobiles or other personal property lost in or stolen from
the Parking Facility regardless of whether such loss or theft
occurs when the Parking Facility is locked or otherwise secured.
Except as caused by the negligence or willful misconduct of
Landlord and without limiting the terms of the preceding
sentence, Landlord shall not be liable for any loss, injury or
damage to persons using the Parking Facility or automobiles or
other property therein, it being agreed that, to the fullest
extent permitted by law, the use of the Spaces shall be at the
sole risk of Tenant and its employees.
1.05 Landlord shall have the right from time to time to designate the
location of the Spaces and to promulgate reasonable rules and
regulations regarding the Parking Facility, the Spaces and the
use thereof, including, but not limited to, rules and
regulations controlling the flow of traffic to and from various
parking areas, the angle and direction of parking and the like.
Tenant shall comply with and cause its employees to comply with
all such rules and regulations as well as all reasonable
additions and amendments thereto.
1.06 Tenant shall not store or permit its employees to store any
automobiles in the Parking Facility without the prior written
consent of Landlord. Except for emergency repairs, Tenant and
its employees shall not perform any work on any automobiles
while located in the Parking Facility or on the Property. If it
is necessary for Tenant or its employees to leave an automobile
in the Parking Facility overnight, Tenant shall provide Landlord
with prior notice thereof designating the license plate number
and model of such automobile.
1.07 Landlord shall have the right to temporarily close the Parking
Facility or certain areas therein in order to perform necessary
repairs, maintenance and improvements to the Parking Facility.
1.08 Tenant shall not assign or sublease any of the Spaces without
the consent of Landlord. Landlord shall have the right to
terminate this Parking Agreement with respect to any Spaces that
Tenant desires to sublet or assign.
1.09 Landlord may elect to provide parking cards or keys to control
access to the Parking Facility. In such event, Landlord shall
provide Tenant with one card or
1
key for each Space that Tenant is leasing hereunder, provided
that Landlord shall have the right to require Tenant or its
employees to place a deposit on such access cards or keys and to
pay a fee for any lost or damaged cards or keys.
1.10 Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for the Parking Facility
("PARKING FACILITY OPERATOR"). In such event, Tenant, upon
request of Landlord, shall enter into a parking agreement with
the Parking Facility Operator and pay the Parking Facility
Operator the monthly charge established hereunder, and Landlord
shall have no liability for claims arising through acts or
omissions of the Parking Facility Operator unless caused by
Landlord's negligence or willful misconduct. It is understood
and agreed that the identity of the Parking Facility Operator
may change from time to time during the Term. In connection
therewith, any parking lease or agreement entered into between
Tenant and a Parking Facility Operator shall be freely
assignable by such Parking Facility Operator or any successors
thereto.
2. ACCELERATION OPTION.
2.01 Tenant shall have the right to accelerate the Termination Date
("ACCELERATION OPTION") of the Lease, with respect to the entire
Premises only, from October 31, 2009 to October 31, 2007 (the
"ACCELERATED TERMINATION DATE"), if:
(a) Tenant is not in default under the Lease at the date
Tenant provides Landlord with an Acceleration Notice
(hereinafter defined); and
(b) no part of the Premises is sublet for a term extending
past the Accelerated Termination Date; and
(c) the Lease has not been assigned; and
(d) Landlord receives notice of acceleration ("ACCELERATION
NOTICE") not less than 9 full calendar months prior to
the Accelerated Termination Date.
2.02 If Tenant exercises its Acceleration Option, Tenant,
simultaneously with delivery of the Acceleration Notice shall
pay to Landlord a fee (the "ACCELERATION FEE") in connection
with the acceleration of the Termination Date and not as a
penalty. The Acceleration Fee shall be equal to the unamortized
portion of any concessions, commissions, allowances and other
expenses incurred by Landlord in connection with the leasing of
the Premises to Tenant, plus 6 months Base Rent, at the then
applicable rate, applicable to the Premises. The Acceleration
Fee shall be increased by an amount equal to the unamortized
portion of any concessions, commissions, allowances or other
expenses incurred by Landlord in connection with any additional
space leased by Tenant that is subject to acceleration hereunder
plus 6 months Base Rent, at the then applicable rate, applicable
to such additional space. Tenant shall remain liable for all
Base Rent, Additional Rent and other sums due under the Lease up
to and including the Accelerated Termination Date even though
xxxxxxxx for such may occur subsequent to the Accelerated
Termination Date. The "unamortized portion" of any of the
foregoing shall be determined using an interest rate of 10% per
annum.
2.03 If Tenant, subsequent to providing Landlord with an Acceleration
Notice, defaults in any of the provisions of this Lease
(including, without limitation, a failure to pay any installment
of the Acceleration Fee due hereunder), Landlord, at its option,
may (i) declare Tenant's exercise of the Acceleration Option to
be null and void, and any Acceleration Fee paid to Landlord
shall be returned to Tenant, after first applying such
Acceleration Fee against any past due Rent under the Lease, or
(ii) continue to honor Tenant's exercise of its Acceleration
Option, in which case, Tenant shall remain liable for the
payment of the Acceleration Fee and for all Base Rent,
Additional Rent and other sums due under the Lease up to and
including the Accelerated Termination Date even though xxxxxxxx
for such may occur subsequent to the Accelerated Termination
Date.
2.04 As of the date Tenant provides Landlord with an Acceleration
Notice, any unexercised rights or options of Tenant to renew the
Term of the Lease or to expand the Premises (whether expansion
options, rights of first or second refusal, rights of first or
second offer, or other similar rights), and any outstanding
tenant improvement allowance not claimed and properly utilized
by
2
Tenant in accordance with the Lease as of such date, shall
immediately be deemed terminated and no longer available or of
any further force or effect.
2.05 Notwithstanding anything to the contrary contained herein, if,
within 6 months of the date Landlord receives the acceleration
notice, Tenant enters into a new lease for space (which is at
least as large as the space being terminated pursuant to this
Section 2) in the Building or in another building owned by
Landlord, or a parent, subsidiary, affiliate or other related
company of Landlord, Tenant shall have no obligation to pay the
Acceleration Fee set forth herein.
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EXHIBIT G
COMMENCEMENT DATE AGREEMENT
Reference is made to that certain Lease by and between MA-NEW ENGLAND
EXECUTIVE PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, Landlord and UTIX
GROUP, INC., A DELAWARE CORPORATION, Tenant, and dated ________________, a
Notice of which is filed for registration with the Suffolk Registry District of
the Land Court as Document No. ____________________
Landlord and Tenant hereby confirm and agree that the Commencement Date
under the Lease is ________________________.
This Commencement Date Agreement is executed as a sealed instrument as
of ____________________, 20__.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
WITNESS/ATTEST: LANDLORD:
MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY
By: Equity Office Management, L.L.C., a
Delaware limited liability company,
its non-member manager
By: EXHIBIT - DO NOT EXECUTE
Name: EXHIBIT - DO NOT EXECUTE
Title: EXHIBIT - DO NOT EXECUTE
______________________________
Name (print): ________________
______________________________
Name (print): ________________
WITNESS/ATTEST: TENANT:
________________________________________, a(n)
______________________________________________
______________________________ By: EXHIBIT - DO NOT EXECUTE
Name (print): ________________
______________________________ Name: EXHIBIT - DO NOT EXECUTE
Name (print): ________________
Title: EXHIBIT - DO NOT EXECUTE
1
