EXHIBIT 10.18
LEASE
-----
1. PARTIES. CAMBRIDGE 1400 LIMITED PARTNERSHIP, a Massachusetts limited
-------
partnership, ("LESSOR"), which expression shall include its successors and
assigns where the context so permits, do hereby lease to GIGA INFORMATION GROUP,
INC., a Massachusetts corporation, ("LESSEE"), which expression shall include
its successors and assigns, and the LESSEE hereby leases and shall peaceably
hold and enjoy the following described premises.
2. LEASED PREMISES. On the Commencement Date, or such earlier date as
---------------
LESSEE shall take occupancy thereof, the "Leased Premises" shall consist of that
portion of the first floor in Building No. 1400 (the "Building"), located at One
Xxxxxxx Square, Cambridge, Massachusetts, located in the mixed use retail and
office complex known as "One Xxxxxxx Square" (the "Complex") which first floor
space contains Seven Thousand Eight Hundred and Sixty-Eight (7,868) square feet
of space, more or less, and outlined on the sketch contained in Exhibit A1
(herein called the "Leased Premises").
The Leased Premises shall have as appurtenant thereto: (a) the right to use
in common with others entitled thereto, the entrances, lobbies, hallways,
stairways, walkways, sidewalks, driveways, loading docks, elevators and other
common facilities in the Building containing any portion of the Leased Premises
and on the land constituting the Lot more particularly described in Exhibit B
hereto (herein called the "Lot") necessary for access to and enjoyment of the
Leased Premises, or portion, and (b) the pipes, conduits, wires, and appurtenant
equipment serving the
Leased Premises, or portion thereof, in common with other portions of the
Building containing any part of the Leased Premises, subject, however, to the
following rights which are expressly excepted and reserved by LESSOR: (i) the
right, from time to time, to install, maintain, use, repair, relocate, place and
replace utility lines, pipes, ducts, conduits, wires, gas, electric, or any
other meters and fixtures located on or passing through any portion of the
Leased Premises to serve other portions of the LESSOR's property of which the
Leased Premises, or a portion thereof, are a part, provided, however, LESSOR
shall not unreasonably interfere with LESSEE's occupancy and use of the Leased
Premises; (ii) the right to enter into, upon and across any portion of the
Leased Premises to exercise any reserved right of LESSOR hereunder or to
complete LESSOR's construction of the Leased Premises, or part thereof, and the
Building, provided, however, LESSOR shall not unreasonably interfere with
LESSEE's occupancy and use of the Leased Premises; and (iii) the right from time
to time to make alterations or additions to the Building and to construct other
buildings or improvements on the Lot and to make additions to such buildings or
improvements, and to permit others to do so from time to time all as LESSOR may
determine in its sole discretion, and without LESSEE's consent in any instance;
any such alterations or additions or construction of other buildings or
improvements on the Lot, being performed to the greatest possible extent in a
manner so as not unreasonably to interfere with the LESSEE's use and occupancy
of the Leased Premises.
Subject to LESSOR's reserved rights specified above, there shall be
appurtenant
2
to the Leased Premises the right to park forty (40) passenger motor vehicles in
the One Xxxxxxx Square parking garage. LESSOR reserves the right to designate
the locations of the spaces to be utilized for such parking rights by written
notice to LESSEE, and to change the location of any or all of such spaces by
notice to LESSEE at any time and from time to time as LESSOR shall reasonably
determine. The parking spaces provided hereunder need not be contiguous.
3.1 TERM. The term (the "Term") of this Lease shall be for a period of
----
five (5) years following the "Commencement Date." The "Commencement Date" shall
be the later to occur of (a) November 1, 1995 or (b) the completion of LESSOR's
work on the initial Five Thousand Five Hundred (5,500) square feet of space as
outlined in Exhibit C. Notwithstanding the above, base rent, and common
area/real estate tax reimbursements on Two Thousand Three Hundred and Sixty-
Eight (2,368) rentable square feet of the Leased Premises shall not commence
until all of the LESSOR's work under Paragraph 3.2 is complete or until LESSEE
has occupied that portion of the Leased Premises.
As soon as may be convenient after the Commencement Date has been
determined, the LESSOR and the LESSEE agree to join with each other in the
execution, in recordable form, of a written declaration in which the
Commencement Date shall be stated.
3.1.1 PHASED OCCUPANCY. In the event a portion of the Leased Premises are
----------------
substantially completed and ready for occupancy, and LESSOR shall have given
notice to LESSEE thereof, then LESSEE shall have the right to commence use and
3
occupancy of such portion of the Leased Premises subject to the terms and
conditions of this Lease. During the period of such partial use and occupancy,
Base Rent and additional rent payable under Paragraphs 4 and 5 hereof shall be
payable on a pro rata basis in the same proportion as the square footage of the
space being used and occupied bears to the total square footage of the Leased
Premises, and LESSEE shall perform, comply with and abide by all of its
obligations, undertakings and covenants as if, and to the same extent, as though
the Term had commenced.
3.2 COMPLETION OF IMPROVEMENTS. The Two Thousand Three Hundred and Sixty-
--------------------------
Eight (2,368) rentable square feet of the Leased Premises that will be rebuilt
shall be considered "ready for occupancy" on the date upon which the
improvements described in Exhibit C - Column 2 hereto to be constructed by
LESSOR with respect to the Leased Premises are substantially completed, and
LESSEE is given a copy of a certificate of occupancy issued by the City of
Cambridge Building Department covering the Leased Premises. The Leased Premises
shall be deemed substantially completed notwithstanding that completion of work
and adjustment of equipment and fixtures or minor items of uncompleted work (so-
called "punch list" work items) remain to be done, if such work can be completed
after occupancy has been taken without causing unreasonable interference with
LESSEE's use of the Leased Premises. Except for latent defects and except to
the extent to which the LESSEE shall have given the LESSOR written notice, not
later than thirty (30) days after LESSEE occupies the Two Thousand Three Hundred
and Sixty-Eight (2,368) square feet of space, of matters or items as to which
the LESSOR has not
4
properly performed its obligations with respect to the construction and
installation of the improvements called for under the Lease, the LESSEE shall
have no claim that the LESSOR has failed to perform such obligations, and
LESSEE's taking possession shall be conclusive evidence as against LESSEE that
said space and improvements were in good order and satisfactory condition when
LESSEE took possession. The LESSOR shall complete all items of work not properly
performed as to which the LESSEE shall have given the LESSOR such timely written
notice as soon as conditions practicably permit thereafter in such a manner as
not to unreasonably disturb the LESSEE or its business operations carried out in
the Leased Premises.
4. RENT. LESSEE covenants and agrees to pay to LESSOR annual base rent
----
("Base Rent") in the amounts set forth or provided for below, by equal payments
of one-twelfth (1/12) of such annual rate on the first day of each calendar
month in advance, the first monthly payment to be made on the Commencement Date,
and by payment in advance of a pro-rata portion of a monthly payment for any
portion of a month at the beginning or end of the Term based on the actual
number of days in any such month; all payments to be made to LESSOR or such
agent, and at such place, as LESSOR shall from time to time in writing
designate, the following being now so designated:
CAMBRIDGE 1400 LIMITED PARTNERSHIP
c/o THE ATHENAEUM GROUP
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
The annual Base Rent for each of the first and second years of the Term
shall be One Hundred and Ten Thousand and One Hundred Fifty-Two Dollars
5
($110,152.00). The annual Base Rent for third year of the Term shall be One
Hundred and Sixteen Thousand and Fifty-Three Dollars ($116,053.00). The annual
Base Rent for each of the fourth and fifth years of the Term shall be One
Hundred and Twenty-One Thousand Nine Hundred and Fifty-Four Dollars
($121,954.00). In addition, on a monthly basis the LESSEE shall pay to the
LESSOR the fair rental value of LESSEE's parking spaces (currently $115.00 per
month per space) in the parking garage as reasonably determined by LESSOR
("Garage Parking").
5. RENT ADJUSTMENTS.
----------------
5.1 RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE LOT.
------------------------------------------------------------
Commencing as of the Commencement Date but as limited by the provisions of
Paragraph 3.1 and with respect to any calendar year or any fraction of a
calendar year thereafter falling within the Term, the LESSEE shall pay to the
LESSOR as additional rent, the "LESSEE's Proportionate CAO Lot Share" (defined
below) of all costs and expenses incurred by the LESSOR in connection with the
maintenance, repair, upkeep, and cleaning of those common areas and facilities
of the Lot delineated or described in Exhibit B hereto, which LESSEE has the
right to use in common with others such as but not limited to common walkways,
accessways and parking facilities and the costs of heating and electricity,
snow-plowing and snow and ice removal, trash removal services, janitorial and
security services, landscaping and lawn care services, walkway, driveway,
parking, and common entryway upkeep and paving costs, and all other costs
reasonably incurred by or for LESSOR in connection with the insurance,
maintenance and operation of the common areas and
6
facilities of the Lot to keep the same in safe, secure and first-class order and
condition (hereinafter called "CAO Lot").
LESSEE's Proportionate CAO Lot Share means that percentage which is equal
to the ratio of the square footage of space constituting the Leased Premises to
the aggregate square footage of space within the Complex which is completed and
as to which a Certificate of Occupancy has issued. As additional buildings are
completed within the Complex, LESSEE'S Proportionate CAO Lot Share shall be
adjusted to that percentage which is equal to the ratio of the square footage
constituting the Leased Premises to the aggregate square footage of space within
the complex which is completed and as to which a certificate of occupancy has
issued. As of the date hereof, the parties have agreed that LESSEE's
Proportionate CAO Lot Share (on the 7,868 rentable square feet) shall initially
be l.29%.
Notwithstanding anything contained in this Lease to the contrary, LESSEE
shall not be responsible for any costs, fees or expenses associated with
construction of additional buildings in the Complex, including, but not limited
to, demolition and grading costs, management fees, contractor fees,
architectural fees, material and building costs, permit fees and costs incurred
due to damage to the existing Complex and Common Areas caused by such new
construction.
5.2 RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE BUILDING.
-----------------------------------------------------------------
Commencing as of the Commencement Date but as limited by the provisions of
Paragraph 3.1 and with respect to any calendar year falling within the term, or
fraction of a calendar year at the beginning or end of the term, the
7
LESSEE shall pay to the LESSOR, as additional rent, the "LESSEE's Proportionate
Building Share" (defined below) of operating expenses attributable to the
Building ("CAO Building"). CAO Building shall include, but is not limited to
the following: all costs and expenses incurred by the LESSOR in connection with
the insurance, operation, repair, maintenance and cleaning of or for the
Building and heating, plumbing, elevators, electrical, air-conditioning and
other systems thereof, trash removal, janitorial services, security systems and
general expenses incurred by the LESSOR in connection with the insurance,
operation and maintenance of the Building, to keep the same in safe, secure and
first-class order and condition.
LESSEE's Proportionate Building Share shall be that percentage, which is
equal to the ratio of the square footage of space constituting the Leased
Premises to the aggregate square footage of space in the Building.
The LESSEE's Proportionate Building Share with respect to the Leased
Premises is 6.26%.
The following shall not constitute Common Area Operating Expenses for the
Lot or Common Area Operating Expenses for the Building (collectively, "Common
Area Operating Expenses") for the purposes of this Lease, and nothing contained
herein shall be deemed to require LESSEE to pay any of the following as Common
Area Operating Expenses: (i) damage and repairs attributable to condemnation,
fire or other casualty; (ii) damage and repairs covered under any warranty or
insurance policy carried by LESSOR in connection with the Building, Complex or
Common Areas; (iii) damage and repairs necessitated by the negligence or willful
misconduct
8
of LESSOR or LESSOR's employees, contractors or agents; (iv) executive salaries
of LESSOR; (v) LESSOR's general overhead expenses not related to the Building;
(vi) payments of principal or interest on any mortgage or other encumbrance
including ground lease payments and points, commissions and legal fees
associated with financing; (vii) depreciation; (viii) any cost or expense
related to the testing for, removal, transportation or storage of hazardous
materials from the Leased Premises, Building, Complex or Common Areas; and (ix)
interest, penalties or other costs arising out of LESSOR's failure to make
timely payments of its obligations.
LESSOR shall not collect in excess of one hundred percent (100%) of Common
Area Operating Expenses for the Lot or Common Area Operating Expenses for the
Building or any item of cost more than once. Any Common Area Operating Expenses
charged LESSOR by any of its affiliates for goods and service provided to the
Building, Leased Premises, Complex or Common Areas shall not exceed the
prevailing cost thereof that would be charged to LESSOR by non-affiliated
parties. All Common Area Operating Expenses shall be directly attributable to
the operations, maintenance, management and repair of the Leased Premises,
Building, Complex or Common Areas.
5.3 MONTHLY PAYMENTS. Beginning with the calendar year in which the
----------------
Commencement Date occurs, and in subsequent years during the Term of this Lease,
the LESSEE shall pay to the LESSOR pro rata monthly installments of amounts due
under Paragraphs 5.1 and 5.2 on account of projected CAO Lot and CAO Building
for such year, calculated by the LESSOR on the basis of the best and most
9
recent budget or data available. Appropriate adjustments of estimated amounts
shall be made between LESSOR and LESSEE promptly after the close of each
calendar year to account for actual CAO Lot and CAO Building for such year,
except that LESSOR may, at its option, credit any amounts due from it to LESSEE
as provided above against any sums then due from LESSEE to LESSOR under this
Lease. The balance of any amounts due shall be paid within thirty (30) days
after written notice thereof.
5.4 RENT ADJUSTMENT - TAXES.
-----------------------
5.4.1 LESSOR TO PAY TAXES. The LESSOR shall be responsible for the
-------------------
payment, before the same becomes delinquent, of all general and special taxes of
every kind and nature, including assessments for local improvements, and other
governmental charges which may be lawfully charged, assessed or imposed (herein
collectively called the "Taxes") upon the Building and the Lot.
If at any time during the Term the present system of ad valorem taxation of
real property shall be changed to that in lieu of the whole or any part of the
ad valorem tax on real property, there shall be assessed on LESSOR a capital
levy or other tax on the gross rents received with respect to the Lot or the
Building or a federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy or charge (distinct from any
now in effect) measured by or based, in whole or in part, upon any such gross
rents, then any and all of such taxes, assessments, levies or charges to the
extent so measured or based, shall be deemed to be included within the term
"Taxes" but only to the extent that the same would be payable if the Lot and the
Building were the only property of LESSOR.
10
5.4.2 LESSEE'S SHARE OF TAXES. As limited by the provisions of
-----------------------
Paragraph 3.1, the LESSEE shall pay to the LESSOR, as additional rent, the
LESSEE's Proportionate Building Share of that portion of the Taxes solely
attributable to the Building and LESSEE's Proportionate CAO Lot Share of that
portion of the Taxes solely attributable to the land which constitutes the Lot.
Notwithstanding anything to the contrary in this Lease, the following shall
not constitute Taxes for the purpose of this Lease, and nothing contained herein
shall be deemed to require LESSEE to pay any of the following: (i) any
franchise, succession or transfer taxes, or (ii) interest on taxes or penalties
resulting from LESSOR's failure to pay taxes. LESSOR shall cause any Taxes
which may be evidenced by improvement or other bonds or which may be paid in
annual or other periodic installments to be paid in installments over the
maximum period provided by law.
5.4.3 RENT ADJUSTMENT - PAYMENT. Beginning with the calendar year in
-------------------------
which the Commencement Date occurs and in subsequent years during the Term of
this Lease, LESSEE shall pay to the LESSOR monthly installments of one-twelfth
(1/12) of the amounts due to LESSOR under Paragraphs 5.4.1 and 5.4.2 on account
of projected Taxes for such year, calculated by the LESSOR on the basis of the
best and most recent data available as set forth in a statement from LESSOR
(and, when available, based upon the real estate tax xxxx covering any such
period). Appropriate adjustments of estimated amounts shall be made between
LESSOR and LESSEE promptly after LESSOR shall have received the tax xxxx
covering any such period.
11
5.4.4 TAX ADJUSTMENT. If the LESSOR or any other tenant (excluding
--------------
LESSEE) in the Building shall construct an addition to the Building, or
construct improvements within the Building of unusual value so as to result in
an increase in Taxes over the Taxes which would have been assessed to that
Building but for such construction, there shall not be included in Taxes for
purposes of this Lease the amount of such increase in Taxes unless such
additions or improvements directly benefit the LESSEE. If the LESSEE, or the
LESSOR at the direction of the LESSEE, shall construct improvements within the
Leased Premises, or any part thereof, of unusual value so as to result in an
increase in Taxes over the Taxes which would have been assessed to the Building,
or part, but for such unusually valuable improvements, the LESSEE shall be
responsible for the payment of the full amount of such increase.
6. UTILITIES AND OTHER SERVICES.
----------------------------
(a) The LESSOR shall provide and the LESSEE shall pay charges for all heat,
air-conditioning, electricity, and water and sewer use charges and all other
utilities separately metered or sub-metered to the Leased Premises, and LESSEE
shall be responsible for all utility company deposits applicable to the supply
of such services to the Leased Premises. LESSEE shall also be responsible for
the payment of its proportionate share of such utilities not separately metered
or sub-metered to the Leased Premises but which serve the Leased Premises, all
as reasonably determined by LESSOR. Upon request by the LESSOR, the LESSEE
shall provide the LESSOR with evidence of payment of such charges. LESSEE shall
defend, indemnify and hold
12
LESSOR harmless from and against any claim or liability arising out of LESSEE's
failure to pay for such charges for which LESSEE is responsible.
(b) LESSOR agrees to furnish reasonable heat to the stairways, elevators
and other common areas in the Building, or portions thereof, as necessary for
comfortable occupancy twenty-four (24) hours, seven (7) days per week of the
heating season of each year and to provide lighting to passageways and stairways
and all parking areas and walkways providing access from the Building to the
parking area in the evening twenty-four (24) hours, seven (7) days per week and
to furnish ordinary repairs and cleaning of the common areas and facilities of
the Complex and removal of snow and ice reasonably promptly after snowfall and
ice accumulation have ended to all walkways, accessways and approaches to the
Building and the parking facility as is customary in or about similar buildings
in Cambridge. LESSOR shall not be liable to LESSEE for any compensation or
reduction of rent by reason of inconvenience or annoyance or for loss of
business arising from the necessity of LESSOR or its agents entering the Leased
Premises, or for LESSEE's repairing the Leased Premises if such repair is not
performed by LESSOR, or for making repairs or renovations to any portion of the
Building, however the necessity may occur. In case LESSOR is prevented or
delayed from making any such repairs or alterations, or supplying the utilities
or services provided for herein, or performing any other covenant or duty to be
performed on LESSOR's part, by reason of any cause beyond LESSOR's control,
LESSOR shall not be liable to LESSEE therefor, nor shall LESSEE be entitled to
any abatement or reduction of rent by reason thereof, nor
13
shall the same give rise to a claim in LESSEE's favor that such failure
constitutes actual or constructive, total or partial, eviction from the Leased
Premises, or any portion thereof. LESSOR reserves the right to stop any service
or utility system, when necessary by reason of accident or emergency, until
necessary repairs have been completed.
(c) LESSOR has installed at its own expense separate meters for all
utilities including heat, electricity, water and sewer, and air conditioning.
The LESSEE shall pay its utility chargzes directly to the suppliers of such
utility services, as billed by the LESSOR within ten (10) days of receipt of
said xxxx and at least before the same become delinquent. The LESSEE and LESSOR
shall have the right to audit said charges and payments upon reasonable notice.
7. USE OF LEASED PREMISES. The LESSEE may use the Leased Premises only
----------------------
for the purpose of general office.
8. COMPLIANCE WITH LAWS. The LESSEE acknowledges that no trade or
--------------------
occupation shall be conducted in the Leased Premises or use made thereof which
shall be unlawful, improper, noisy or offensive, or be contrary to any law or
any municipal by-law or ordinance in force in the City of Cambridge. LESSEE
shall keep the Leased Premises equipped with all safety appliances and shall
procure and keep in force all licenses and permits required by law or ordinance
of any public authority because of the uses made of the Leased Premises by
LESSEE and shall maintain in good condition on the Leased Premises all safety
and fire protection devices required by the Board of Fire Underwriters, or other
body having similar functions, and of
14
every insurance company and policy by which LESSOR or LESSEE is insured. If any
use of the Leased Premises by LESSEE results in the cancellation of any
insurances carried by LESSOR, or increases the cost thereof, the LESSEE shall on
demand reimburse the LESSOR all extra insurance premiums incurred as a result of
such use of the Leased Premises by the LESSEE.
9. RISK OF LOSS OF PERSONAL EFFECTS. LESSEE acknowledges and agrees that
--------------------------------
all of the furnishings, equipment, effects and property of LESSEE and of all
persons claiming by, through or under LESSEE which may be on the Leased Premises
or elsewhere in any building in the Complex, shall be at the sole risk and
hazard of LESSEE and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by the leakage or bursting of water
pipes, steam pipes, or other pipes, by theft or from any other cause, no part of
said loss or damage is to be charged to or to be borne by LESSOR, except that
LESSOR shall in no event be indemnified or held harmless or exonerated from any
liability to LESSEE or to any other person, arising from any injury, loss,
damage or liability caused by LESSOR's negligence or willful misconduct.
9A. INSURANCE - WAIVER OF SUBROGATION. LESSOR agrees to keep the Building
---------------------------------
and LESSEE agrees to keep the Leased Premises, and all equipment, machinery and
fixtures therein insured in amounts equal to the actual cash value of the same,
against fire and other perils included in a standard extended coverage
endorsement, and against breakdown of boilers and other machinery and equipment,
and LESSEE agrees to procure and keep in force comprehensive general liability
15
insurance indemnifying LESSOR against all claims and damages for any injury to
or death of person or damage to property which may be claimed to have occurred
upon or to have been caused by activities or conditions within the Leased
Premises and indemnifying LESSOR to the extent any such claims and demands are
the responsibility or obligation of LESSEE pursuant to this Lease or as a matter
of law, in amounts not less than One Million Dollars ($1,000,000) for property
damage, Five Hundred Thousand Dollars ($500,000) for injury or death of one
person, and One Million Dollars ($1,000,000) for injury or death of more than
one person in a single accident.
All insurance required hereunder shall be written by insurance carriers
qualified to do business and in good standing in Massachusetts and approved by
LESSOR, which approval shall not be unreasonably withheld. All policies of
insurance, shall name LESSOR and LESSEE as the insured parties. Each required
policy of insurance shall provide that, notwithstanding any act or omission of
LESSEE which might otherwise result in forfeiture of said insurance: (a) it
shall not be cancelled nor its coverage reduced without at least ten (10) days
prior written notice to each insured named therein, and (b) any proceeds shall
be first payable to LESSOR or to the holder of any mortgage encumbering the
Leased Premises, as their respective interests may appear.
As of the commencement of the Term hereof, and thereafter not less than
fifteen (15) days prior to the expiration dates of the expiring policies, the
original policies to be obtained by LESSEE hereto issued by the respective
insurers or
16
certificates thereof including photocopies of the original policies, shall be
delivered to LESSOR.
Any insurance carried by either party with respect to the Leased Premises
or property therein or occurrences thereon shall include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury or
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury of loss due to
hazards covered by such insurance to the extent of the indemnification received
thereunder.
10. MAINTENANCE OF LEASED PREMISES. The LESSEE agrees to maintain the
------------------------------
Leased Premises in the same condition as they are at the commencement of the
Term or as they may be put in during the Term of this Lease, reasonable wear and
tear, damage by fire, other casualty and eminent domain, and matters for which
the LESSOR is responsible hereunder only excepted, to provide its own interior
janitorial service, to install and maintain its own security system as it
considers appropriate and, whenever necessary, to replace plate glass and other
glass therein with that of the same quality as that damaged or injured. LESSOR
shall maintain and LESSEE shall pay its proportionate share of the maintenance
of the HVAC System servicing the Leased Premises, but LESSEE shall be
responsible for all repairs and replacements to said system if the same is
caused by any act or omission of LESSEE or its agents. The LESSEE shall not
permit the Leased Premises to be overloaded, damaged, stripped, or defaced, nor
suffer any waste. LESSEE shall
17
obtain written consent of LESSOR before erecting any sign on or about the Leased
Premises, which consent shall not be unreasonably withheld or delayed. LESSEE
further covenants and agrees: to take all reasonably necessary actions to insure
that smoke, fumes, vapors and odors will not permeate any building containing
the Leased Premises and will not be removed only through the exhaust and
ventilating system servicing the Leased Premises; to keep all trash garbage and
debris stored on the Leased Premises (and not in any other portions of the Lot
or the Building) in adequate covered containers, approved by LESSOR and placed
in locations or areas approved by LESSOR in writing and to arrange for the
regular removal thereof once each day; to provide for the frequent and adequate
cleaning of the Leased Premises and all walls, floors, fixtures and equipment
therein consistent with its use. LESSOR shall maintain in good condition the
structural elements and the roof of the Building, the mechanical equipment and
systems in the Building (other than such equipment and systems which are located
within or exclusively serve the Leased Premises, and other than LESSEE's
maintenance obligations otherwise provided herein), and the common areas of the
Building. LESSEE shall pay its proportionate share for these expenses and
services as set out in Paragraph 5 above.
Notwithstanding anything to the contrary in this Lease, in no event shall
LESSEE's obligation to repair under this section extend to (i) damage and
repairs covered under any insurance policy carried by LESSOR in connection with
the Leased Premises or Building; (ii) damage caused by any defects in the
design, construction or materials of the Building, including the Leased
Premises, and
18
improvements installed therein by LESSOR; (iii) damage caused in whole or in
part by the negligence or willful misconduct of LESSOR or LESSOR's agents,
employees, invitees or licensees; (iv) repairs covered under any Common Area
Operating Expenses; (v) reasonable wear and tear; (vi) conditions covered under
any warranties of LESSOR's contractors.
11. ALTERATIONS - ADDITIONS. The LESSEE shall not make structural
-----------------------
alterations or additions to the Leased Premises, but may make nonstructural
alterations and improvements, provided the LESSOR consents thereto in advance in
writing in each instance, which consent shall not be unreasonably withheld or
delayed provided that LESSOR is furnished with detailed plans and specifications
reasonably approved by LESSOR. Notwithstanding the foregoing, LESSEE shall not
be required to obtain LESSOR's consent (but will provide LESSOR with prior
written notice of, and to the extent required, permits for) any alterations to
the Leased Premises by LESSEE that (i) cost less than Ten Thousand Dollars
($10,000), (ii) do not affect the electrical, mechanical, plumbing, sewage,
heating, ventilating or air conditioning systems serving the Building, and (iii)
are not structural in nature. All such allowed alterations or additions shall
be at LESSEE's expense and shall be in quality at least equal to the present
construction. LESSEE shall not permit any mechanics' liens, or similar liens,
to remain upon the Leased Premises for labor and materials furnished to LESSEE
or claimed to have been furnished to LESSEE in connection with the work of any
character performed or claimed to have been performed at the direction of
LESSEE, and shall cause any such lien to be released of
19
record forthwith without cost to LESSOR. Any alterations, additions or
improvements made by the LESSEE, except for moveable partitions and furnishings,
installed at the LESSEE's cost, shall become the property of the LESSOR at the
termination of the Lease as provided herein.
With respect to all such LESSEE work, LESSEE further agrees as follows:
that such work shall commence only after all required municipal and other
governmental permits and authorizations have been obtained (the LESSOR agreeing
to join in any application therefor at the LESSEE's expense, whenever necessary)
and all such work shall be done in a good and workmanlike manner in compliance
with building and zoning laws and with all other laws, ordinances, regulations
and requirements of all federal, state and municipal agencies, and in accordance
with the requirements and policies issued by any insurer of LESSOR or LESSEE;
that all such work shall be prosecuted with reasonable dispatch to completion;
that at all times when any such work is in progress, LESSEE shall maintain or
cause to be maintained adequate workers' compensation insurance for those
employed in connection therewith with respect to whom death or injury claims
could be asserted against LESSOR, the LESSEE or the Leased Premises and
comprehensive general liability or builder's risk insurance (for mutual benefit
of LESSEE and LESSOR) in coverages reasonably approved by LESSOR: and that all
such work of LESSEE shall be coordinated with any work being performed by LESSOR
and other tenants of the Building in which the work is taking place in such
manner as to maintain harmonious labor relations and not to interfere with the
operation of the Building or the Complex or the construction
20
work of others.
12. ASSIGNMENT - SUBLETTING. The LESSEE shall not assign or sublet the
-----------------------
whole or any part of the Leased Premises without the LESSOR's prior written
consent, which consent shall not be unreasonably withheld or delayed.
Notwithstanding such consent, LESSEE shall remain liable to LESSOR for the
payment of all rent and for the full performance of the covenants and conditions
of this Lease (which following assignment shall be joint and several with
assignee). Notwithstanding the foregoing, LESSOR's consent shall not be required
in the event LESSEE transfers this Lease to an entity which purchases all or
substantially all of the assets of LESSEE. In the event LESSEE sub-leases all
or a portion of the Leased Premises and the rent to be paid by the Sublessor is
greater than the rent paid by LESSEE pursuant to the Lease, LESSEE and LESSOR
shall share in such excess rent on a 50/50 basis; provided LESSEE is first
reimbursed out of such excess rent for any expenses associated with the sublease
of the Leased Premises, including but not limited to brokerage commission,
attorneys' fees and alterations.
12. QUIET ENJOYMENT, COVENANT OF TITLE. The LESSEE, on paying the rent
----------------------------------
and other charges hereunder, as and when the same shall become due and payable
and observing and performing the covenants, conditions and agreements contained
in this Lease on the part of the LESSEE to be observed and performed, all as
herein provided, shall and may lawfully, peaceably and quietly have, hold and
enjoy the Leased Premises during the Term, subject to all of the terms and
provisions hereof, without hindrance, ejection or disturbance by the LESSOR by
or by any
21
person or persons claiming by, through or under the LESSOR or by anyone claiming
paramount title.
13. SUBORDINATION. The Lease and LESSEE's interest hereunder, subject to
-------------
the provisions of this Paragraph 13, shall be subordinate to the lien of any
present or future mortgage or mortgages upon the Leased Premises or any property
of which the Leased Premises are a part, irrespective of the time of execution
or the time of recording of any such mortgage or mortgages, and to each advance
made or to be made thereunder and to all renewals, modifications,
consolidations, and extensions thereof, and all substitutions therefor. Any
subordination of this Lease pursuant to the provisions of this Paragraph 13 is
made and granted upon the condition that, in the event of any entry by the
holder of any such mortgage to foreclose, a default under any such mortgage, a
foreclosure of any such mortgage of LESSOR'S interest under this Lease or in the
Leased Premises through foreclosure or otherwise, the LESSEE shall (provided the
LESSEE is not then in default beyond any applicable cure period) peaceably hold
and enjoy the Leased Premises as a lessee of such holder, during the Term upon
the terms, covenants and conditions as set forth in this Lease without any
hindrance or interruption from such holder. In the event of such entry,
foreclosure, acquisition or other action by such holder, LESSEE shall recognize
the holder of the mortgage with respect to which such action is taken as the
LESSOR under this Lease. As used in this Paragraph 13, the word "holder"
includes any person claiming through or under any such mortgage, including any
purchaser at a foreclosure sale, and the word "LESSEE" shall include LESSEE's
successors and
22
assigns. The word "mortgage" as used in this Paragraph shall mean mortgages,
deeds of trust, and other similar instruments held by any institutional lender
and all modifications, extensions, renewals and replacements thereof. This
Paragraph 13 is self-operative, and no further instrument of subordination shall
be required.
Notwithstanding the self-operative effect of this Paragraph 13, the LESSEE
agrees to execute such further documents in recordable form as the LESSOR or any
lender may reasonably require, consistent with the terms of this Paragraph 13
and 21. Should the LESSEE fail to execute and deliver to the LESSOR any such
reasonable document within twenty (20) days of a written notice requesting the
LESSEE to execute and deliver such document, LESSEE shall pay to LESSOR (as
liquidated damages and not as a penalty) the sum of Five Hundred Dollars ($500)
per day for each day after such twentieth (20th) day during which such failure
to deliver such instrument continues.
14. LESSOR'S ACCESS. The LESSOR or agents of the LESSOR may, at
---------------
reasonable times and upon twenty-four (24) hours reasonable prior written notice
to the LESSEE, (and in a manner so as not to unreasonably interfere with
LESSEE's business operation), enter to view the Leased Premises, or any part
thereof and may remove placards and signs not approved and affixed as herein
provided, and make repairs and alterations which LESSOR may deem necessary or
desirable and, at LESSEE's expense, to remove any alterations, additions, signs,
or other improvements made by LESSEE and not consented to by LESSOR; to show
the Leased Premises to others, upon twenty-four (24) hours reasonable prior
written notice, in a manner so
23
as not to unreasonably interfere with the normal conduct of the LESSEE's
business, at any time within the four (4) month period prior to the expiration
of the Term; to affix to any suitable part of the Leased Premises a notice for
letting or selling the Leased Premises are a part and keep the same so affixed
without hindrance or molestation.
15. INDEMNIFICATION AND LIABILITY. The LESSEE shall defend, save harmless
-----------------------------
and indemnify LESSOR from any claims of liability for injury, loss, accident or
damage to any person or property while on the Leased Premises, if not due to the
negligence or willful misconduct of LESSOR, or LESSOR's employees or agents, and
to any persons or property while in the Building or Complex occasioned by any
omission, fault, negligence or other willful misconduct of LESSEE and persons
for whose conduct LESSEE is legally responsible.
LESSOR shall defend, hold harmless and indemnify LESSEE from any claims of
liability for injury, loss, accident or damage to any person or property while
in the Building, Complex or Common Areas, unless due to the omission, fault,
negligence or willful misconduct of LESSEE or LESSEE's employees or agents.
16. HOLDING OVER. LESSEE agrees to pay to LESSOR one and one-half times
------------
the total of the Base Rent set forth in Paragraph 4 in effect for the period
immediately prior to LESSEE's holding over and one and one-half times the
additional rent provided for under this Lease then applicable for each month or
portion thereof LESSEE shall retain possession of the Leased Premises or any
part thereof after the termination of this Lease, whether by lapse of time or
otherwise, and also to pay all damages sustained by LESSOR on account thereof;
the provisions of
24
this Paragraph shall not operate as a waiver by LESSOR of any right of re-entry
provided in this Lease.
16A. FURTHER LESSEE COVENANTS. LESSEE further covenants and agrees during
------------------------
the Term and such further time as LESSEE holds any part of the Leased Premises:
(a) to pay when due all rent and other sums herein specified, without
offset, deduction set off or counterclaim except as otherwise specifically
provided in this Lease;
(b) not to obstruct in any manner any portion of any building not hereby
leased or the sidewalks or approaches to such building or any inside windows or
doors;
(c) that neither the original LESSOR nor any successor LESSOR who or which
is trustee or a partnership, nor any beneficiary of the original LESSOR or any
successor LESSOR nor any partner, general or limited, of such partnership shall
be personally liable under any term, condition, covenant, obligation or
agreement expressed herein or implied hereunder or for any claim or damage or
cause at law or in equity arising out of the occupancy of the Leased Premises or
the use or maintenance of the Building and LESSEE specifically agrees to look
solely to the LESSOR's interest in the Complex for the recovery of any judgment
against LESSOR; and
(d) if any payment of rent or other sums due hereunder is not paid within
ten days of when due, LESSEE shall pay to LESSOR a late charge equal to five
(5%)
25
percent of the unpaid amount per month, or part thereof, that such amount
remains unpaid.
17. FIRE, CASUALTY.
--------------
17.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE". The term
-------------------------------------------------------
"substantial damage", as used herein, shall refer to damage which is of such a
character that the same cannot, in ordinary course, be expected to be repaired
within ninety (90) calendar days from the time that such repair work would
commence. Any damage which is not "substantial damage" is "partial damage." In
the event of substantial damage to the Building, the LESSOR shall notify the
LESSEE as soon as is practicable and in no event later than thirty (30) days
after such damage of LESSOR's estimated time for repair of such damage.
17.2 PARTIAL DAMAGE TO THE BUILDING. If during the Lease Term there shall
------------------------------
be partial damage to the Building by fire or other casualty and if such damage
shall materially interfere with the LESSEE's use of the Leased Premises as
contemplated by this Lease, the LESSOR shall, to the extent insurance proceeds
are available to LESSOR, promptly proceed to restore the Building to
substantially the condition in which it was immediately prior to the occurrence
of such damage. Notwithstanding the foregoing, if there shall be partial damage
to the Building, and if such damage shall materially interfere with the LESSEE's
use of the Leased Premises as contemplated by this Lease occurring during the
last twelve (12) months of the Lease Term of such a character that the same
cannot, in ordinary course, be expected to be repaired within thirty (30) days
from the time such repair work would begin,
26
the LESSOR or LESSEE may, withing ten (10) days of the date of such damage,
elect to terminate this Lease. If such election is not made, the LESSOR shall
promptly proceed with such restoration.
17.3 SUBSTANTIAL DAMAGE TO THE BUILDING. If during the Lease Term there
----------------------------------
shall be substantial damage to the Building by fire or other casualty and if
such damage shall materially interfere with the LESSEE's use of the Leased
Premises as contemplated by this Lease, the LESSOR shall, to the extent
insurance proceeds are available to LESSOR, promptly restore the Building to an
architectural unit that is not less suitable than that which existed prior to
such fire or casualty, unless the LESSOR or the LESSEE, within forty-five (45)
days after the occurrence of such damage, shall give notice to the other of its
election to terminate this Lease. If at any time during such forty-five (45)
day period the LESSOR notifies the LESSEE of its intention to restore the
Building, the LESSEE must then give notice to the LESSOR, within ten (10) days
of its receipt of the LESSOR's notice of intention to restore the Building, as
to whether the LESSEE will elect to terminate the Lease. Should the LESSEE fail
to elect to terminate the Lease within such ten (10) day period, the LESSEE's
right to terminate under this Paragraph 17.3 shall expire. If the LESSOR
proceeds with the restoration of the Building and if such damage shall not have
been repaired to the extent necessary for the LESSEE to resume its normal
business operations at the Leased Premises by the end of the 180th day following
the date of such fire or casualty, or if the LESSOR shall fail diligently to
cause such repair and restoration work to be performed, then the LESSEE may, at
any time thereafter while
27
the damage remains unrepaired, terminate this Lease upon notice to the LESSOR.
If the LESSOR or the LESSEE shall give such notice of termination, then this
Lease shall terminate as of the date of such notice with the same force and
effect as if such date were the date originally established as the expiration
date hereof.
17.4 ABATEMENT OF RENT. If during the Lease Term the Building shall be
-----------------
damaged by fire or casualty and if such damage shall materially interfere with
the LESSEE's use of the Leased Premises as contemplated by this Lease, a just
proportionate amount of the rent, additional rent and other charges payable by
the LESSEE hereunder shall xxxxx proportionately for the period in which, by
reason of such damage, there is such interference with the LESSEE's use of the
Leased Premises.
17A. EMINENT DOMAIN. If the Building is totally taken by condemnation or
--------------
right of eminent domain, this Lease shall terminate as of the date of such
taking. If the Building, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable in the LESSEE's reasonable judgment for the LESSEE's purposes, shall
be taken by condemnation or right of eminent domain (including a temporary
taking in excess of 180 days), the LESSEE or the LESSOR shall have the right to
terminate this Lease by notice to the other of its desire to do so, provided
that such notice is given not later than ten (10) days after the LESSEE has been
deprived of possession.
Should any part of the Building be so taken or condemned or receive such
damage and should this Lease not be terminated in accordance with the foregoing
28
provisions, the LESSOR shall, to the extent condemnation proceeds are available
to LESSOR, promptly restore the Leased Premises to an architectural unit that is
suitable to the uses to the LESSEE permitted hereunder.
In the event of a taking described in this Paragraph 17A, the rent,
additional rent, and other charges payable hereunder, or a fair and just
proportion thereof according to the nature and extent of the loss of use, shall
be suspended or abated.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the Leased Premises for any taking
by eminent domain, except for damage to the LESSEE's trade fixtures, personal
property or equipment, if any, the LESSEE's right to relocation expenses, if
any, and the LESSEE's right for business interruption, if any.
18. DEFAULT AND BANKRUPTCY. In the event that:
----------------------
(a) The LESSEE, or any guarantor of LESSEE's obligations hereunder, shall
default in the payment of any installment of rent or other sum herein specified;
or
(b) The LESSEE shall default in the observance or performance of the
LESSEE's covenants, agreements, or obligations hereunder (except as provided in
Paragraph 18(a) above) and the LESSEE shall not cure such default within thirty
(30) days after written notice thereof or if such default cannot be cured within
thirty (30) days, then if LESSEE shall not commence to cure the same within
thirty (30) days and diligently pursue the curing of the same; or
(c) LESSEE or any guarantor of LESSEE's obligations under this Lease makes
any assignment for the benefit of creditors, commits any act of bankruptcy or
29
files a petition under any bankruptcy or insolvency law; or if such a petition
is filed against LESSEE or any guarantor of LESSEE's obligations under this
Lease and is not dismissed within ninety (90) days; or if a receiver or similar
officer becomes entitled to LESSEE's leasehold hereunder and it is not returned
to LESSEE within ninety (90) days, or if such leasehold is taken on execution or
other process of law in any action against LESSEE;
then in any such case the LESSOR shall have the right thereafter, while
such default continues, to re-enter and take complete possession of the Leased
Premises, to declare the Term of this Lease ended, and remove the LESSEE's
effects at LESSEE's sole cost and expense, without prejudice to any remedies
which might be otherwise used for arrears of rent or other default. The LESSEE
shall indemnify the LESSOR against all loss and reasonable payment of rent and
other payments which the LESSOR may incur by reason of such termination during
the residue of the Term. In the event of default, LESSOR shall use its
reasonable efforts to re-let the Leased Premises so as to mitigate any damages
to the LESSEE hereunder. If LESSOR re-lets the Leased Premises, LESSEE may off-
set its payable rent by the amount of rent received by LESSOR.
If the LESSEE shall default, after written notice thereof as provided
herein, in the observance or performance of any conditions or covenants on its
part to be observed or performed under or by virtue of any of the provisions of
this Lease and after the expiration of any period within which the LESSEE is
entitled to cure such default as is provided above in this Paragraph 18, the
LESSOR, without being under
30
any obligation to do so and without thereby waiving such default, may remedy
such default for the account and at the expense of the LESSEE. If the LESSOR
makes any expenditures or incurs any obligations for the payment of money in
connection therewith, including, but not limited to, reasonable attorneys' fees
(except for unsuccessful suits against the LESSEE) in instituting, prosecuting
or defending any action or proceeding, such sums paid or obligations incurred,
with interest at the rate of twelve (12%) percent per annum and costs, shall be
paid to the LESSOR by the LESSEE as additional rent.
Nothing contained in this Lease shall limit or prejudice the right of
LESSOR to claim and obtain in proceedings for bankruptcy, insolvency or like
proceedings by reason of the termination of this Lease an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which the damages are to be claimed or proved,
whether or not the amount be greater, equal to, or less than the amount of the
loss or damages referred to above.
19. RULES AND REGULATIONS. The LESSOR shall have the right to institute
---------------------
and to change from time to time, rules and regulations for the use of the
Building and the Lot by commercial office lessees, and by commercial retail
lessees, which shall be reasonable in all instances and shall be uniformly
applicable to all commercial lessees in the Building and the LESSEE agrees to
abide thereby.
19A. PARAGRAPH HEADINGS. The paragraph headings throughout this
------------------
instrument are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation,
31
construction or meaning of the provisions of this Lease.
20. BROKER. The LESSOR and LESSEE each represent and warrant to the other
------
that each has had no dealings with any Brokers concerning this Lease, except
Xxxxxxxxx and Xxxx (Xxxxxx Xxxx) and XXXXXX X. XXXXX AND COMPANY and each party
agrees to indemnify and hold the other harmless for any damages occasioned to
the other by reason of a breach of this representation and warranty. LESSOR
shall pay a commission to Xxxxxxxxx & Xxxx.
21. ESTOPPEL CERTIFICATE. LESSOR and LESSEE each agree at any time from
--------------------
time to time, upon not less than ten (10) days' prior notice to execute,
acknowledge and deliver to the other, a statement in writing, certifying to the
extent possible that this Lease is unmodified and in full force and effect, or
if there have been modifications, that the same is in full force and effect as
modified and stating such modifications and otherwise certifying if there exists
any default under the terms of this Lease and such other information as may be
reasonably requested concerning this Lease by the other party or any other third
party with a bona fide interest. Should either party fail to deliver to the
other party any such statement within twenty (20) days of receipt of a written
notice requesting any such statement, the party failing to deliver any such
statement shall pay to the requesting party, the sum of Five Hundred Dollars
($500) per day (as liquidated damages and not as a penalty), for each day after
such twentieth (20th) day during which such failure continues.
22. NOTICE. Any notice from the LESSOR to the LESSEE relating to the
------
32
Leased Premises or to the occupancy thereof shall be deemed duly served, if in
writing and mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE,
GIGA Information Group, Inc.
One Xxxxxxx Square - Building 1400
Xxxxxxxxx, XX 00000
Any notice from the LESSEE to the LESSOR relating to the Leased Premises or to
the occupancy thereof, shall be deemed duly served, if in writing and mailed to
the LESSOR by registered or certified mail, return receipt requested, postage
prepaid, addressed to the LESSOR at such address as the LESSOR may from time to
time advise in writing, the following now being designated:
CAMBRIDGE 1400 LIMITED PARTNERSHIP
c/o THE ATHENAEUM GROUP
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
23. SURRENDER. The LESSEE shall at the expiration or other termination of
---------
this Lease yield up and peaceably surrender all portions of the Leased Premises
to LESSOR and shall remove all LESSEE's goods and effects therefrom (including,
without hereby limiting the generality of the foregoing, all signs and lettering
affixed or painted by the LESSEE, either inside or outside the Leased Premises).
LESSEE shall deliver to the LESSOR the Leased Premises and all keys, locks
thereto, and all fixtures, alterations and additions made to or upon the Leased
Premises, except for moveable partitions and furnishings installed at the
LESSEE's expense, in the same condition as they were at the commencement of the
term, or as they were put in during the Term hereof, reasonable wear and tear
and damage by fire, other casualty
33
or eminenet domain and matters for which the LESSOR is responsible hereunder
only excepted. All moveable partitions and furnishings, installed in the Leased
Premises at the LESSEE's expense prior to or during the Term of the Lease may be
removed by the LESSEE at the expiration or other termination of the Lease. The
LESSEE shall, at its expense, promptly repair any and all damage to the Leased
Premises resulting from such removal. In the event of the LESSEE's failure to
remove any of the LESSEE's property from the Leased Premises, LESSOR is hereby
authorized, upon fifteen (15) days' written notice to the LESSEE without
liability to LESSEE for loss or damage thereto, and at the sole risk of LESSEE,
to remove and store any of the property at LESSEE's sole cost and expense.
24. OPTION TO EXTEND. If the LESSEE is not then in default, LESSOR does
----------------
hereby grant to LESSEE the option to extend this Lease for one (1) additional
five (5) year term, commencing on the expiration of the initial Term upon the
same terms and conditions as herein contained except the annual base rent set
forth in Paragraph 4 hereof shall be at the fair market rate. The option shall
be exercised by written notice from LESSEE and received by LESSOR at least four
(4) months prior to the expiration of the initial term.
In the event LESSEE gives timely extension notice in accordance with the
provisions of this Paragraph 24 and the parties are unable to agree as to the
fair market rent within thirty (30) days after the receipt of LESSEE's extension
notice, then LESSOR and LESSEE may initiate the appraisal process provided for
herein by giving notice to that effect to the other, and the party so initiating
the appraisal
34
process (the "Initiating Party") shall specify in such notice the name and
address of the person designated to act as an appraiser on its behalf. Within
thirty (30) days after the designation of the appraiser, the other party (the
"Other Party") shall give notice to the Initiating Party specifying the name and
address of the person designated to act as an appraiser on its behalf. The two
appraisers as chosen shall meet within ten (10) days after the second appraiser
is appointed and if, within ten (10) days after the second appraiser is
appointed, the two appraisers shall not agree on a fair market rent, then on the
second Business Day following the close of such ten (10) day period, the two
appraisers shall, within thirty (30) days after the second appraiser is
appointed, together appoint a third appraiser. In the event of their being
unable to agree upon such appointment within forty (40) days after the
appointment of the second appraiser, the third appraiser shall be selected by
the parties themselves if they can agree thereon within a further period of
fifteen (15) days. If the parties do not so agree, then either party, on behalf
of both and on notice to the other, may request such appointment by the Boston
Office of the American Arbitration Association (or successor organization) in
accordance with its rules then prevailing. Within five (5) days after the
appointment of the third appraiser, the first appraiser and second appraiser
shall submit to such third appraiser their respective determinations of the fair
market rent as described in the immediately preceding clause. Such third
appraiser shall, within fifteen (15) days after the end of such five (5) day
period, choose the fair market rent specified by either the first appraiser or
the second appraiser in such submissions and the fair market rent selected by
the
35
third appraiser from the fair market rents submitted by the first appraiser
and the second appraiser shall conclusively be deemed to be the fair market
rent.
Each party shall pay the fees and expenses of the appraiser selected by it.
The fees and expenses of the third appraiser and all other expenses (not
including the attorney's fees, witness fees and similar expenses of the parties
which shall be borne equally by the parties thereto) shall be borne equally
50/50 by the parties.
Under no circumstances may the appraisers modify or disregard any provision
of this Lease and the jurisdiction of the appraisers is restricted accordingly.
The appraisers shall include the fair market rent such cost escalators as are
then customary and appropriate. Fair Market Rental Value is intended to be
calculated in a fair and comprehensive manner so that Landlord shall achieve,
and Tenant shall pay based upon, an amount which is no less than the same net
rental which Landlord would actually receive upon a re-letting of the applicable
space in an arms'-length transaction to an unrelated third party tenant where
neither party is under any compulsion or undue influence. Fair Market Value
shall not include alterations or improvements made to the Leased Premises at
LESSEE's expense during the initial Lease Term.
In the event LESSOR or LESSEE initiates the appraisal process pursuant to
this Paragraph and as of the commencement of the Extension Term the amount of
the fair market rent has not been determined, LESSEE shall pay the amount
specified by the LESSOR's appraiser, and when such determination has been made,
it shall be retroactive as of the commencement date of the Extension Term and
any excess shall
36
be credited by LESSOR to LESSEE as against the next monthly Base Rent payment or
payments.
25. SECURITY DEPOSIT. Not required.
----------------
26. SIGNAGE ALLOWANCE. LESSOR shall provide LESSEE with a Two Thousand
-----------------
Dollar ($2,000) signage allowance to be used at Leased Premises. All signage
shall be subject to LESSOR's reasonable approval.
27. MISCELLANEOUS.
-------------
(a) Upon LESSOR's request, LESSEE shall submit annual financial statements
to the LESSOR containing statements of cash flow. If the LESSEE is a publicly
traded corporation it shall supply LESSOR, on a quarterly basis, with its 10Q
filings.
(b) The LESSOR reserves the right to assign or transfer any and all of its
right, title and interest under the Lease, including but not limited to the
benefit of all covenants of the LESSEE hereunder. Notwithstanding anything
contained in this Lease to the contrary, it is specifically understood and
agreed that the obligations imposed upon the LESSOR hereunder shall be binding
upon the LESSOR and LESSOR's successors' ownership of LESSOR's interest
hereunder the LESSOR and its said successors in interest shall not be liable for
acts and occurrences arising from and after the transfer of their interest as
LESSOR hereunder, provided such successor fully assumes the obligations of the
LESSOR hereunder from and after the date of such assignment or transfer.
(c) This Lease shall be governed by and construed in accordance with the
37
laws of the Commonwealth of Massachusetts, as the same may from time to time
exist.
(d) This Lease contains all of the agreements of the parties with respect
to the subject matter thereof and supersedes all prior oral and written
negotiations and dealings between them with respect to such subject matter. The
agreement of the parties contained in this Lease shall not be modified or
amended unless such modification or amendment is in writing and signed by the
parties.
(e) The LESSEE acknowledges that LESSEE has not been influenced to enter
into this Lease nor has it relied upon any warranties or representations not set
forth or incorporated in this Lease or previously made in writing.
The undersigned General Partner of CAMBRIDGE 1400 LIMITED PARTNERSHIP does
hereby certify that it is authorized by all of the beneficiaries of said
Partnership to execute and acknowledge the within Lease on behalf of the
Partnership.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 31st day of October, 1995.
CAMBRIDGE 1400 LIMITED PARTNERSHIP
By Its General Partner
CAMBRIDGE 1400 INC.
/s/ Xxxxx X. Xxxxx /s/
------------------------------ ------------------------------
By: Xxxxx X. Xxxxx, President Witness
38
GIGA INFORMATION GROUP, INC.
/s/ Xxxxx Xxxx /s/ Xxxxxxxx X. Xxxxx
------------------------------ ------------------------------
By: Xxxxx Xxxx, President Witness
Duly Authorized
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx
------------------------------ ------------------------------
By: Vice President, Finance Witness
Duly Authorized
39
