1
EXHIBIT 10.16
LEASE
BETWEEN
RIVERFRONT OFFICE PARK JOINT VENTURE
Landlord
AND
INTERNATIONAL INTEGRATION INCORPORATED (I-CUBE)
Tenant
000 XXXX XXXXXX,
XXXXXXXXX, XXXXXXXXXXXXX
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INDEX
1. REFERENCE DATA ..................................................... 1
2. DESCRIPTION OF DEMISED PREMISES .................................... 3
2.1 Demised Premises ........................................... 3
2.2 Appurtenant Rights ......................................... 3
2.3 Reservations ............................................... 3
3. TERM OF LEASE; OPTION TO EXTEND TERM ............................... 4
3.1 Habendum ................................................... 4
3.2 Term Commencement Date ..................................... 4
3.3 Option to Extend ........................................... 4
4. WORK BY LANDLORD; TENANT IMPROVEMENT ALLOWANCE ..................... 4
4.1 Completion Date - Delays ................................... 4
4.2 Tenant Improvement Allowance ............................... 5
5. USE OF PREMISES .................................................... 5
5.1 Permitted Use .............................................. 5
5.2 Prohibited Uses ............................................ 5
5.3 Licenses and Permits ....................................... 6
6. RENT ............................................................... 6
6.1 Yearly Fixed Rent .......................................... 6
6.2 Taxes ...................................................... 6
6.3 Operating Expenses ......................................... 7
6.4 Tenant's Proportionate Share ............................... 7
6.5 Payment to Mortgagee ....................................... 8
7. UTILITIES AND LANDLORD'S SERVICES .................................. 8
7.1 Electricity ................................................ 8
7.2 Water Charges .............................................. 8
7.3 Heat and Air Conditioning .................................. 9
7.4 Additional Heat, Cleaning and Air Conditioning Services .... 9
7.5 Repairs and Other Services ................................. 9
7.6 Interruption or Curtailment of Services .................... 9
7.7 Elevator Service ........................................... 10
7.8 Building Access ............................................ 10
8. CHANGES OR ALTERATIONS BY LANDLORD ................................. 10
9. FIXTURES, EQUIPMENT AND IMPROVEMENTS - REMOVAL BY TENANT ........... 11
10. ALTERATIONS AND IMPROVEMENTS BY TENANT ............................. 11
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11. TENANT'S CONTRACTORS - MECHANICS' AND OTHER LIENS - STANDARD OF
TENANT'S PERFORMANCE - COMPLIANCE WITH LAWS ........................ 11
12. REPAIRS AND SECURITY BY TENANT ..................................... 12
13. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION ............ 12
13.1 Insurance ................................................ 12
13.2 Certificates of Insurance ................................ 13
13.3 General .................................................. 13
13.4 Property of Tenant ....................................... 14
13.5 Bursting of Pipes, etc ................................... 14
13.6 Repairs and Alterations - No Diminution of Rental Value .. 14
14. ASSIGNMENT, MORTGAGING, SUBLETTING, ETC ............................ 15
14.1 Restrictions ............................................. 15
14.2 Requests to Assign or Sublet ............................. 15
14.3 Exceptions ............................................... 15
14.4 Excess Rent .............................................. 16
14.5 Recapture ................................................ 16
14.6 Further Documentation .................................... 17
14.7 General .................................................. 17
15. MISCELLANEOUS COVENANTS ............................................ 18
15.1 Rules and Regulations .................................... 18
15.2 Access to Premises - Shoring ............................. 19
15.3 Accidents to Sanitary and other Systems .................. 20
15.4 Signs, Blinds and Drapes ................................. 20
15.5 Estoppel Certificate ..................................... 20
15.6 Prohibited Items ......................................... 21
15.7 Requirements of Law Fines and Penalties .................. 21
15.8 Tenant's Acts - Effect on Insurance ...................... 21
15.9 Miscellaneous ............................................ 21
16. DAMAGE BY FIRE, ETC. ............................................... 21
17. WAIVER OF SUBROGATION .............................................. 23
18. CONDEMNATION - EMINENT DOMAIN ...................................... 24
19. DEFAULT ............................................................ 25
19.1 Conditions of Limitation - Re-entry - Termination ........ 25
19.2 Damages - Assignment for Benefit of Creditors ............ 25
19.3 Damages - Termination .................................... 26
19.4 Fees and Expenses ........................................ 27
19.5 Landlord's Remedies Not Exclusive ........................ 27
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19.6 Grace Period ............................................. 27
20. END OF TERM - ABANDONED PROPERTY ................................... 28
21. RIGHTS OF MORTGAGEES ............................................... 28
21.1 Superiority of Lease ..................................... 28
21.2 Entry and Possession ..................................... 29
21.3 Right to Cure ............................................ 29
21.4 Duty to Construct ........................................ 29
21.5 Prepaid Rent ............................................. 30
21.6 Continuing Offer ......................................... 30
21.7 Subordination ............................................ 30
21.8 Limitations on Liability ................................. 30
22. QUIET ENJOYMENT .................................................... 31
23. ENTIRE AGREEMENT - WAIVER - SURRENDER .............................. 31
23.1 Entire Agreement ......................................... 31
23.2 Waiver ................................................... 31
23.3 Surrender ................................................ 31
24. INABILITY TO PERFORM - EXCULPATORY CLAUSE .......................... 32
25. BILLS AND NOTICES .................................................. 32
26. PARTIES BOUND - SEISIN OF TITLE .................................... 33
27. MISCELLANEOUS ...................................................... 33
27.1 Separability ............................................. 33
27.2 Captions ................................................. 34
27.3 Broker ................................................... 34
27.4 Governing Law ............................................ 34
27.5 Assignment of Rents ...................................... 34
27.6 Parking .................................................. 34
27.7 Notice of Lease .......................................... 35
27.8 Financial Statements ..................................... 35
27.9 Security Deposit ......................................... 35
27.10 Use of Conference Center ................................ 36
EXHIBIT A Description of Demised Premises
EXHIBIT B Description of Land
EXHIBIT C Plans Schedule
EXHIBIT D Rules and Regulations
EXHIBIT E Agreement of Subordination, Non-Disturbance and Attornment
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AGREEMENT OF LEASE
AGREEMENT OF LEASE made as of the 14th day of July, 1995, by and between
RIVERFRONT OFFICE PARK JOINT VENTURE, a Massachusetts joint venture (hereinafter
referred to as "Landlord") and International Integration Incorporated (I-CUBE),
a Massachusetts corporation (hereinafter referred to as "Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
that portion of the fifteenth (15th) floor, as shown on the plan attached hereto
as EXHIBIT A and made a part hereof (hereinafter referred to as the "Premises"
or the "Demised Premises") contained in the building known and numbered as 000
Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (hereinafter referred to as the
"Building").
1. REFERENCE DATA
Each reference in this Lease to any of the terms and titles contained in
this Article shall be deemed and construed to incorporate the data stated
following that term or title in this Article.
(1) Additional Rent: Sums or other charges payable by Tenant to
Landlord under this Lease, other than Yearly
Fixed Rent.
(2) Broker: Xxxxx Xxxxxx Xxxxx & Partners and Leggat
XxXxxx/Xxxxx & Xxxxx
(3) Business Day: All days except Saturdays, Sundays, and days
defined as "Legal Holidays" for the entire
state under the laws of the Commonwealth of
Massachusetts.
(4) Land: The parcel of land described on EXHIBIT B
attached hereto and made a part hereof.
(5) Landlord's Address: c/o Codman Management Company, Inc., Xxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
(6) Landlord's Architect: Xxxxx Associates.
(7) Mathsoft Sublet Premises: The 11,212 rentable square feet adjacent to the
Demised Premises subleased by Tenant from
Mathsoft, Inc., a tenant of the Building
(8) Mortgage: A mortgage, deed of trust, trust indenture, or
other security instrument of record creating an
interest in or affecting title
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to the Land or Building or any part thereof,
including the leasehold mortgage, and any and
all renewals, modifications, consolidations or
extensions of any such instrument. For such
time as Teachers Insurance and Annuity
Association ("TIAA") is the holder of a first
mortgage on the Property, the term "Mortgage"
shall mean only said first mortgage, and such
other mortgages, if any, which TIAA shall
approve.
(9) Mortgagee: The holder of any Mortgage.
(10) Parking Spaces: None; provided, however, that Tenant shall have
the option upon not less than thirty (30) days
notice thereof to Landlord to increase such
number up to a maximum of twenty-four (24)
spaces, subject to availability.
(11) Property: The Land and Building.
(12) Rent: Yearly Fixed Rent and Additional Rent.
(13) Rentable Area of the
Demised Premises: 12,138 square feet.
(14) Tenant's Address: 000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx until the Term Commencement Date,
and thereafter 000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000.
(15) Term Commencement
Date: As defined in Section 3.2.
(16) Term of This Lease: As defined in Section 3.1.
(17) Termination Date: As defined in Section 3.1.
(18) Use of Demised Premises: General office purposes.
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(19) Yearly Fixed Rent: (a) DURING THE PERIOD TERM COMMENCEMENT DATE
THROUGH AUGUST 31, 1995:
At the rate of $89,012 per annum.
($22.00 per rentable square foot on 4,046
rentable square feet).
(b) DURING THE PERIOD SEPTEMBER 1, 1995
THROUGH DECEMBER 31, 1995:
At the rate of $178,024 per annum.
($22.00 per rentable square foot on 8,092
rentable square feet).
(c) DURING THE PERIOD JANUARY 1, 1996 THROUGH
OCTOBER 14, 1999:
At the rate of $267,036 per annum.
($22.00 per rentable square foot on
12,138 square feet).
2. DESCRIPTION OF DEMISED PREMISES
2.1 DEMISED PREMISES. The Demised Premises are that portion of the
Building as described above (as the same may from time to time be constituted
after changes therein, additions thereto and eliminations therefrom pursuant
hereto).
2.2 APPURTENANT RIGHTS. Tenant shall have, as appurtenant to the Demised
Premises, rights to use in common, subject to reasonable rules from time to time
made by Landlord of which Tenant is given notice, those common roadways,
walkways, elevators, hallways and stairways necessary for access to that portion
of the Building occupied by the Demised Premises.
2.3 RESERVATIONS. All the perimeter walls of the Demised Premises except
the inner surfaces thereof, any balconies, terraces or roofs adjacent to the
Demised Premises, and any space in or adjacent to the Demised Premises used for
shafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms,
ducts, electric or other utilities, sinks or other building facilities, and the
use thereof, as well as the right of access through the Demised Premises, upon
reasonable prior notice to Tenant (except in emergencies) and without materially
interfering with Tenant's business operations, for the purpose of operation,
maintenance, decoration and repair as hereinafter provided, are expressly
reserved to Landlord.
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3. TERM OF LEASE; OPTION TO EXTEND TERM
3.1 HABENDUM. TO HAVE AND TO HOLD the Demised Premises for a term
commencing on the Term Commencement Date and ending on October 14, 1999 (the
"Term of this Lease"), or on such earlier date upon which said Term may expire
or be terminated pursuant to any of the conditions of limitation or other
provisions of this Lease or pursuant to law (which date for the termination of
the term hereof shall hereafter be called the "Termination Date").
3.2 TERM COMMENCEMENT DATE. The Term Commencement Date shall be the
earlier of (a) the date on which, pursuant to permission therefor duly given by
Landlord, Tenant undertakes Use of the Demised Premises for the purpose set
forth in Article 1, or (b) the date on which the Demised Premises are ready for
Tenant's occupancy in accordance with the provisions of Section 4.2.
3.3 OPTION TO EXTEND. On the conditions that (i) Tenant is not then in
default beyond any applicable grace periods of its covenants and obligations
under this Lease and (ii) Tenant itself is then occupying the entirety of the
Demised Premises, Tenant may extend the Term of this Lease for one (1)
additional period of five (5) years by giving notice to Landlord of its election
to extend at least twelve (12) months prior to the end of the original Term. The
Yearly Fixed Rent payable by Tenant with respect to such extension period shall
be equal to the then fair market rental value of the Demised Premises (taking
into account comparable first-class office space in the East Cambridge area) (1)
as the same may be mutually agreed by Landlord and Tenant; provided, however
that (2) if they have not so agreed in writing within two (2) months following
the exercise of the option then said fair market value shall be determined by
appraisers, one to be chosen by Landlord, one to be chosen by Tenant, and a
third to be selected by the two first chosen. The unanimous written decision of
the two first chosen, without selection and participation of a third appraiser,
or otherwise the written decision of a majority of three appraisers chosen and
selected as aforesaid, shall be conclusive and binding upon Landlord and Tenant.
Landlord and Tenant shall each notify the other of its chosen appraiser within
thirty (30) days following expiration of the aforesaid two (2) month period and,
unless such two appraisers shall have reached a unanimous decision within
seventy-five (75) days from said expiration, they shall within a further fifteen
(15) days elect a third appraiser and notify Landlord and Tenant thereof.
Landlord and Tenant shall each bear the expense of the appraiser chosen by it
and shall equally bear the expense of the third appraiser (if any). For purposes
of this Section 3.3 the Demised Premises shall be deemed to include the Mathsoft
Sublet Premises, if and only if on the date of Tenant's notice to extend and on
October 14, 1999, Tenant is then in possession of the Mathsoft Sublet Premises.
4. WORK BY LANDLORD; TENANT IMPROVEMENT ALLOWANCE
4.1 COMPLETION DATE - DELAYS. Subject to delay by causes beyond the
reasonable control of Landlord or caused by the action or inaction of Tenant,
Landlord shall use reasonable diligence in order to have the Demised Premises
ready for occupancy by Tenant as follows and as more fully detailed in
accordance with the Plans Schedule set forth as Exhibit C attached hereto and
made a part hereof: 4,046 rentable square feet to be substantially completed by
June 1, 1995, with
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an additional 4,046 rentable square feet (8,092 rentable square feet in the
aggregate) to be substantially completed by September 1, 1995, and with the
remaining 4,046 rentable square feet (12,138 rentable square feet in the
aggregate) to be substantially completed by January 1, 1996. The failure to have
the Demised Premises so ready by such date shall in no way affect the validity
of this Lease or the obligations of Tenant hereunder; provided, however, that
the Yearly Fixed Rent payable by Tenant hereunder shall be based upon the
rentable square feet of space then substantially completed and delivered to
Tenant calculated at $22.00 square feet per annum. Tenant fit-up work shall be
performed in a good and workmanlike manner using first quality materials.
4.2 TENANT IMPROVEMENT ALLOWANCE. Landlord will provide to Tenant a tenant
improvement allowance of $218,484, of which a portion shall be used to pay for
the tenant fit-up work to be performed by Landlord to the Demised Premises as
set forth in Section 4.1, with the remainder of said $218,484 available to
Tenant for additional tenant improvements to be made to the Demised Premises by
Tenant, including, without limitation, for cabling, wire and outside
professional project management services (project management services will be
provided by Facility Management Solutions, Inc. and will be capped at $10,000).
Tenant shall not utilize any of said tenant allowance for furniture, telephone
switches, voice mail systems or other "carry-away" items. Tenant shall furnish
Landlord on or before June 1, 1996 with true and complete copies of all invoices
of third party vendors relating to the tenant fit-up work or additional tenant
improvements conducted by Tenant evidencing such expenditures. Such invoices may
be presented to Landlord separately, and will be payable by Landlord within
thirty (30) days. In addition, Landlord shall provide at no cost to Tenant the
architectural, engineering and space planning services of Landlord's Architect.
5. USE OF PREMISES
5.1 PERMITTED USE. Except as otherwise agreed by Landlord, Tenant, during
the Term of this Lease, shall occupy and use the Demised Premises for the
Permitted Use set forth in Article 1 and for no other purpose. Service and
utility areas (whether or not a part of the Premises) shall be used only for the
particular purpose for which they are designated.
5.2 PROHIBITED USES. Tenant shall not use, or suffer or permit the use of,
or suffer or permit anything to be done in or anything to be brought into or
kept in, the Demised Premises or any part thereof (i) which would violate any of
the covenants, agreements, terms, provisions and conditions of this Lease, (ii)
for any unlawful purposes or in any unlawful manner, or (iii) which, in the
reasonable judgment of Landlord shall in any way (a) impair or tend to impair
the appearance or reputation of the Building, (b) impair or interfere with or
tend to impair or interfere with any of the Building services or the proper and
economic heating, cleaning, air conditioning or other servicing of the Building
or Demised Premises, or with the use of any of the other areas of the Building,
or (c) occasion discomfort, inconvenience or annoyance to any of the other
tenants or occupants of the Building, whether through the transmission of noise
or odors or otherwise. Without limiting the generality of the foregoing, no food
shall be prepared, excepting occasional catered activities in the normal course
of business, for consumption on or about the Demised Premises; no intoxicating
liquors or alcoholic beverages shall be sold on or about the
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Demised Premises; no lottery tickets (even where the sale of such tickets is not
illegal) shall be sold and no gambling, betting or wagering shall otherwise be
permitted on or about the Demised Premises; no loitering shall be permitted in
or about the Demised Premises; and no loading or unloading of supplies or other
material to or from the Demised Premises shall be permitted on the Land except
at times and in locations to be designated by Landlord. The Demised Premises
shall be maintained in a sanitary condition, and all kept free of rodents and
vermin. All trash and rubbish shall be suitably stored in the Demised Premises
or other locations designated by Landlord from time to time.
5.3 LICENSES AND PERMITS. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, and if the
failure to secure such license or permit would in any way affect Landlord,
Tenant, at Tenant's expense, shall duly procure and thereafter maintain such
license or permit and submit the same to inspection by Landlord. Tenant, at
Tenant's expense, shall at all times comply with the terms and conditions of
each such license or permit. Landlord represents and warrants that the Demised
Premises may be used for general office purposes under all applicable zoning
laws and ordinances.
6. RENT
6.1 YEARLY FIXED RENT. Tenant shall pay to Landlord, without any set-off
or deduction, at Landlord's office, or to such other person or at such other
place as Landlord may designate by notice to Tenant, the Yearly Fixed Rent set
forth in Article 1. All Yearly Fixed Rent shall be paid in equal monthly
installments in advance on or before the first business day of each calendar
month during the Term of this Lease and shall be apportioned for any fraction of
a month in which the Term Commencement Date or the last day of the Term of this
Lease may fall.
6.2 TAXES. Tenant shall pay to Landlord as Additional Rent a proportionate
share (as defined in Section 6.4) of all real estate taxes (including without
limitation all betterment assessments and charges in lieu of such taxes and any
tax on any fixture (other than a Tenant fixture) installed in the Building, even
if taxed as personal property) imposed against the Building and the Land with
respect to any fiscal tax year during the Term of this Lease in excess of the
amount of said real estate taxes imposed against the Building and the Land for
the fiscal tax year ending June 30, 1995, prorated with respect to any portion
of a fiscal year in which the term of this Lease begins or ends. Such payments
shall be due and payable within thirty (30) days after Tenant shall have
received a copy of the relevant tax bills. If Landlord shall receive any refund
of real estate taxes of which Tenant has paid a portion pursuant to this
Section, then, out of any balance remaining after deducting Landlord's expenses
incurred in obtaining such refund, Landlord shall pay to Tenant the same
proportionate share of said balance, prorated as set forth above. Tenant shall,
if, as and when demanded by Landlord and with each monthly installment of Fixed
Rent, make tax fund payments to Landlord. "Tax Fund Payments" refer to such
payments as Landlord shall determine to be sufficient to provide in the
aggregate a fund adequate to pay, when they become due and payable, all payments
required from Tenant under this Section. In the event that said tax fund
payments are not adequate to pay Tenant's share of such taxes, Tenant shall pay
to Landlord the amount by which such aggregate is less than the amount of said
share, such payment to be due and payable at the time set forth above. Any
surplus tax fund
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payments shall be accounted for to Tenant after payment by Landlord of the taxes
on account of which they were made, and shall be promptly refunded to Tenant.
6.3 OPERATING EXPENSES. Tenant shall pay to Landlord as Additional Rent a
proportionate share (as defined in Section 6.4) of all costs and expenses
incurred by Landlord in the operation and maintenance of the Building and the
Land in accordance with generally accepted operational and maintenance
procedures with respect to any calendar year during the Term of this Lease in
excess of the amount of said costs and expenses incurred by the Landlord in the
operation and maintenance of the Building and the Land during the calendar year
ending December 31, 1995, including, without limiting the generality of the
foregoing, all such costs and expenses in connection with (1) insurance, license
fees, janitorial service, landscaping, and snow removal, (2) wages, salaries,
management fees, employee benefits and payroll taxes for on-site employees,
on-site office expenses, administrative and auditing expenses, and equipment and
materials for the operation, management, and maintenance of said Property, (3)
any capital expenditure (amortized, with interest, on such reasonable basis as
Landlord shall determine) made by Landlord for the purpose of reducing other
operating expenses or complying with any governmental requirement, (4) the
furnishing of heat, air conditioning, utilities, and any other service to the
common areas of the Building (i.e., areas not constituting a part of the demised
premises of any tenant in the Building), (5) the operation and servicing of any
computer system installed to regulate Building equipment, and (6) the furnishing
of the repairs and services to Tenant referred to in Section 7.5 (the foregoing
being hereinafter referred to as "operating expenses"). Notwithstanding the
foregoing, the following shall be excluded from operating expenses: (a) tenant
build-out and tenant improvement expenses, (b) capital expenditures other than
those described in subsection (3) above of this Section 6.3, and (c) marketing
and advertising expenses and leasing costs, commissions and attorneys' fees in
connection with negotiations or disputes with tenants or other occupants. As
soon as Tenant's share of operating expenses with respect to any calendar year
can be determined, the same will be certified by Landlord to Tenant and will
become payable to Landlord within thirty (30) days following such certification,
subject to proration with respect to any portion of a calendar year in which the
Term of this Lease begins or ends. Tenant shall, if, as and when demanded by
Landlord and with each monthly installment of Yearly Fixed Rent, make operating
fund payments to Landlord. "Operating Fund Payments" refer to such payments as
Landlord shall reasonably determine to be sufficient to provide in the aggregate
a fund adequate to pay, when they become due and payable, all payments required
from Tenant under this Section. In the event that operating fund payments are so
demanded, and if the aggregate of said operating fund payments is not adequate
to pay Tenant's share of operating expenses, Tenant shall pay to Landlord the
amount by which such aggregate is less than the amount of said share, such
payment to be due and payable at the time set forth above. Any surplus operating
fund payments shall be accounted for to Tenant after such surplus has been
determined, and shall be refunded to Tenant promptly.
6.4 TENANT'S PROPORTIONATE SHARE. Tenant's proportionate share of taxes
pursuant to Section 6.2 and operating expenses pursuant to Section 6.3,
respectively, shall be 3.57% (12,138/340,240 square feet) and 3.71%
(12,138/326,900 square feet), respectively.
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6.5 PAYMENT TO MORTGAGEE. Landlord reserves the right to provide in any
Mortgage given by it of the Property that some or all rents, issues, and profits
and all other amounts of every kind payable to the Landlord under this Lease
shall be paid directly to the Mortgagee for Landlord's account and Tenant
covenants and agrees that it will, after receipt by it of notice from Landlord
or Mortgagee designating such Mortgagee to whom payments are to be made by
Tenant, pay such amounts thereafter becoming due directly to such Mortgagee
until excused therefrom by notice from such Mortgagee.
7. UTILITIES AND LANDLORD'S SERVICES
7.1 ELECTRICITY. Tenant shall purchase the electrical energy that Tenant
requires for operation of the lighting fixtures, appliances and equipment in the
Demised Premises. The costs of initially installing any required meter shall be
paid by Landlord, but Tenant shall keep said meter and installation equipment in
good working order and repair. Landlord shall not be liable in any way to Tenant
for any failure or defect in the supply or character of electrical energy
furnished to the Demised Premises by reason of any requirement, act or omission
of the public utility serving the Building with electricity unless due to the
act or omission of Landlord. Tenant's use of electrical energy in the Demised
Premises shall not at any time exceed the capacity of any of the electrical
conductors and equipment in or otherwise serving the Demised Premises. In order
to insure that such capacity is not exceeded and to avert possible adverse
affect upon the Building electrical services, Tenant shall give notice to
Landlord and obtain Landlord's prior written consent whenever Tenant shall
connect to the Building electrical distribution system any fixtures, appliances
or equipment. Any additional feeders or risers to supply Tenant's electrical
requirements in addition to those originally installed and all other equipment
proper and necessary in connection with such feeders or risers, shall be
installed by Landlord upon Tenant's request, at the sole cost and expense of
Tenant, provided that such additional feeders and risers are permissible under
applicable laws and insurance regulations and the installation of such feeders
or risers will not cause permanent damage or injury to the Building or cause or
create a dangerous condition or unreasonably interfere with other tenants of the
Building. Tenant agrees that it will not make any alteration or material
addition to the electrical equipment and/or appliances in the Premises without
the prior written consent of Landlord in each instance first obtained, which
consent will not be unreasonably withheld or delayed, and will promptly advise
Landlord of any alteration or addition to such electrical equipment and/or
appliances. Following substantial completion of the fit-up work by Landlord as
set forth in Section 4.1, Tenant, at Tenant's expense, shall purchase, install
and replace all light fixtures, bulbs, tubes, lamps, lenses, globes, ballasts
and switches used in the Demised Premises.
7.2 WATER CHARGES. Landlord shall furnish hot and cold water for ordinary
cleaning, toilet, lavatory and drinking purposes to the extent required to
service facilities shown on the Plans approved by Landlord pursuant to Section
4.3. If Tenant requires, uses or consumes water for any purpose other than for
such purposes, Landlord may (i) assess a reasonable charge for the additional
water so used or consumed by Tenant or (ii) install a water meter and thereby
measure Tenant's water consumption for all purposes. In the latter event,
Landlord shall pay the cost of the meter and the cost of installing any
equipment required in connection therewith, and Tenant shall keep said meter and
installation equipment in good working order and repair, and shall pay
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for water consumed, as shown on said meter, together with the sewer charge based
on said meter charges, as and when bills are rendered. On Tenant's default in
making such payment Landlord may pay such charges and collect the same from
Tenant.
7.3. HEAT AND AIR CONDITIONING. Landlord shall, through the equipment of
the Building furnish to and distribute in the Demised Premises heat and air
conditioning as normal seasonal changes may require on Business Days from 8:00
a.m. to 6:00 p.m. and on Saturdays (other than legal or recognized holidays as
defined in Article 1) from 8:00 a.m. to 12:00 noon when reasonably required for
the comfortable occupancy of the Demised Premises by Tenant. Tenant agrees to
lower and close the blinds or drapes when necessary because of the sun's
position, whenever the air conditioning system is in operation, and to cooperate
fully with Landlord with regard to, and to abide by all reasonable regulations
and requirements which Landlord may prescribe in writing for the proper
functioning and protection of the heating and air conditioning system.
7.4 ADDITIONAL HEAT, CLEANING AND AIR CONDITIONING SERVICES.
(a) The heating and air conditioning equipment serving the Demised
Premises shall be designed so as to permit Tenant to obtain heat and air
conditioning on days and at times other than as set forth in Section 7.3.
Tenant's use of such additional heat and air conditioning shall be gauged on the
meter referred to in Section 7.1 or otherwise reasonably estimated by Landlord,
and all charges in connection therewith shall be payable directly by Tenant.
(b) Tenant will pay to Landlord a reasonable charge for any extra
cleaning of the Premises required because of the carelessness or indifference of
Tenant or because of the nature of Tenant's business, or furnished by Landlord
at Tenant's request. Landlord will endeavor to furnish such requested extra
cleaning service upon reasonable advance written notice from Tenant of its
requirements in that regard.
7.5 REPAIRS AND OTHER SERVICES. Except as otherwise provided in Articles
16 and 18, and subject to Tenant's obligations in Article 12 and elsewhere in
this Lease, Landlord shall (a) keep and maintain the roof, foundation, exterior
walls, structural floor slabs and columns, windows, and common areas of the
Building in as good condition and repair as they are in on the Term Commencement
Date, reasonable use and wear excepted, (b) keep and maintain in workable
condition the Building's sanitary, electrical, heating, air conditioning and
other systems, (c) provide cleaning services to the Demised Premises and the
common areas of the Building on Business Days according to the cleaning
standards generally prevailing in first class office buildings in the City of
Cambridge, (d) provide maintenance and snow removal for all roadways, walkways
and parking areas on the Property, (e) provide grounds maintenance to all
landscaped areas, and (f) employ a uniformed guard to be stationed at the main
entrance of the Building on an around-the-clock basis. All expenses incurred by
Landlord in connection with the foregoing repairs and other services shall be
included as part of operating expenses pursuant to Section 6.3.
7.6 INTERRUPTION OR CURTAILMENT OF SERVICES. Landlord reserves the right
to interrupt, curtail, stop or suspend the furnishing of services and the
operation of any Building system, when
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necessary by reason of accident or emergency, or of repairs, alterations,
replacements or improvements in the reasonable judgment of Landlord desirable or
necessary to be made, or of difficulty or inability in securing supplies or
labor, or of strikes, or of any other cause beyond the reasonable control of
Landlord, whether such other cause be similar or dissimilar to those hereinabove
specifically mentioned, until said cause has been removed. Landlord shall have
no responsibility or liability for any such interruption, curtailment, stoppage,
or suspension of services or systems, except that Landlord shall exercise
reasonable diligence to minimize inconvenience to Tenant and to eliminate the
cause of same and except that Landlord shall give reasonable notice of such
interruption, curtailment, stoppage or suspension except when due to accident or
emergency.
7.7 ELEVATOR SERVICE. Landlord shall provide passenger elevator service
and freight elevator service from the existing elevator system in common with
other tenants in the Building.
7.8 BUILDING ACCESS. Landlord shall provide access to the Demised Premises
on Business Days from 8:00 a.m. to 6:00 p.m., subject to restrictions based on
emergency conditions, and at all other times, subject to such reasonable
security restrictions as may from time-to-time be in effect and to emergency
restrictions.
8. CHANGES OR ALTERATIONS BY LANDLORD
Landlord reserves the right, exercisable by itself or its nominee, at any
time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor or
otherwise affecting Tenant's obligations under this Lease, to make such changes,
alterations, additions, improvements, repairs or replacements in or to the
Building (including the Demised Premises) and the fixtures and equipment
thereof, as well as in or to the street entrances, halls, passages, elevators,
and stairways thereof, as it may deem necessary or desirable, and to change the
arrangement and/or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets, or other public parts of the Building,
provided, however, that there be no unreasonable obstruction of the right of
access to, or unreasonable interference with the use and enjoyment of, the
Demised Premises by Tenant, except that Landlord shall not be obligated to
employ labor at so-called "overtime" or other premium pay rates. Nothing
contained in this Article shall be deemed to relieve Tenant of any duty,
obligation or liability of Tenant with respect to making or causing to be made
any repair, replacement or improvement or complying with any law, order or
requirement of any governmental or other authority. Landlord reserves the right
to from time to time change the address of the Building. Neither this Lease nor
any use by Tenant shall give Tenant any right or easement or the use of any door
or any passage or any concourse connecting with any other building or to any
public convenience, and the use of such doors, passages and concourses and of
such conveniences may be regulated or discontinued at any time and from time to
time by Landlord and without affecting the obligation of Tenant hereunder or
incurring any liability to Tenant therefor, provided, Tenant shall be permitted
access to the Demised Premises during the Term of this Lease.
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9. FIXTURES, EQUIPMENT AND IMPROVEMENTS - REMOVAL BY TENANT
All fixtures, equipment, improvements and appurtenances attached to or
built into the Demised Premises prior to or during the term, whether by Landlord
at its expense or at the expense of Tenant (either or both) or by Tenant shall
be and remain part of the Demised Premises and shall not be removed by Tenant at
the end of the Term unless otherwise expressly provided in this Lease. Where not
built into the Demised Premise and if furnished and installed by and at the sole
expense of Tenant, all removable electric fixtures, signs, furniture, or trade
fixtures or business equipment shall not be deemed to be included in such
fixtures, equipment, improvements and appurtenances and may be, and upon the
request of Landlord will be, removed by Tenant upon the condition that such
removal shall not materially damage the Demised Premises or the Building and
that the cost of repairing any damage to the Demised Premises or the Building
arising from such removal shall be paid by Tenant.
10. ALTERATIONS AND IMPROVEMENTS BY TENANT
Tenant shall make no alterations, installations, removals, additions or
improvements in or to the Demised Premises without Landlord's prior written
consent, which consent as to non-structural changes costing less than $10,000
shall not be unreasonably withheld or delayed, and then only by contractors or
mechanics approved by Landlord. No installations or other such work shall be
undertaken or begun by Tenant until Landlord has approved written plans and
specifications therefor; and no amendments or additions to such plans and
specifications shall be made without prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed. Any such work,
alterations, decorations, installations, removals, additions and improvements
shall be done at the sole expense of Tenant and at such times and in such manner
as Landlord may from time to time designate. If Tenant shall make any
alterations, decorations, installations, additions or improvements, then
Landlord may elect at the time of its consent (such election to be in writing
and incorporated in such consent) to such alterations or other work to require
Tenant at the expiration of this Lease to restore the Demised Premises to
substantially the same condition as existed upon completion of the tenant fit-up
work set forth in Article 4.
11. TENANT'S CONTRACTORS - MECHANICS' AND OTHER LIENS - STANDARD OF TENANT'S
PERFORMANCE - COMPLIANCE WITH LAWS
Whenever Tenant shall make any alterations, decoration, installations,
removals, additions or improvements or do any other work in or to the Demised
Premises, Tenant will strictly observe the following covenants and agreements:
(a) In no event shall any material or equipment be incorporated in
or added to the Demised Premises in connection with any such alteration,
decoration, installation, addition or improvement which is subject to any lien,
charge, mortgage or other encumbrance of any kind whatsoever or is subject to
any security interest or any form of title retention agreement. Any mechanic's
lien filed against the Demised Premises or the Building for work claimed to have
been done for, or materials claimed to have been furnished to Tenant shall be
discharged by Tenant within thirty (30) days thereafter, at the expense of
Tenant, by filing the bond required by law
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or otherwise. If Tenant fails so to discharge any lien, Landlord may do so at
Tenant's expense and Tenant shall reimburse Landlord for any expense or cost
incurred by Landlord in so doing within fifteen (15) days after rendition of a
xxxx therefor.
(b) All installations or work done by Tenant under this or any other
Article of this Lease shall be at its own expense (unless expressly otherwise
provided) and shall at all times comply with (i) laws, rules, orders and
regulations of governmental authorities having jurisdiction thereof; (ii)
orders, rules and regulations of any Board of Fire Underwriters, or any other
body hereafter constituted exercising similar functions, and governing insurance
rating bureaus; (iii) plans and specifications prepared by and at the expense of
Tenant theretofore submitted to Landlord for its prior written approval.
(c) Tenant shall procure all necessary permits before undertaking
any work in the Demised Premises; do all such work in a good and workmanlike
manner, employing materials of good quality and complying with all governmental
requirements and defend, save harmless, exonerate and indemnify Landlord from
all injury, loss or damage to any person or property occasioned by or growing
out of such work, excepting only that caused by the gross negligence or wilful
misconduct of Landlord or Landlord's servants, agents or employees.
12. REPAIRS AND SECURITY BY TENANT
Tenant shall keep or cause to be kept all and singular the Demised
Premises neat and clean and in such repair, order and condition as the same are
in on the Term Commencement Date or may be put in during the term hereof,
reasonable use and wear thereof, damage by fire or by other insured casualty and
repairs required to be made hereunder by Landlord excepted.
Tenant shall make, as and when needed as a result of misuse by, or neglect
or improper conduct (including without limitation the placement of any weight
exceeding the floor load) of Tenant or Tenant's servants, employees, agents,
invitees or licensees or otherwise, all repairs in and about the Demised
Premises necessary to preserve them in such repair, order and condition, which
repairs shall be in quality and class equal to the original work. Landlord may
elect, at the expense of Tenant, either pursuant to Section 15.3 or otherwise,
to make any such repairs or to repair any damage or injury to the Building or
the Demised Premises caused by moving property of Tenant in or out of the
Building, or by installation or removal of furniture or other property, or by
misuse by, or neglect or improper conduct of, Tenant or Tenant's servants,
employees, agents or licensees.
13. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION
13.1 INSURANCE. (a) Tenant shall procure, keep in force and pay for (a)
Commercial General Liability Insurance indemnifying Landlord, any managing agent
designated by Landlord, Tenant and (whenever Landlord shall so request) any
Mortgagee against all claims and demands for injury to or death of persons or
damage to property which may be claimed to have occurred upon the Demised
Premises in the amounts which shall at the time Tenant and/or contractors enter
the Premises in accordance with Article 4 of this Lease be not less than Two
Hundred Thousand
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Dollars ($200,000) for property damage, One Million Dollars ($1,000,000) for
injury or death of one person, and Two Million Dollars ($2,000,000) for injury
or death of more than one person in a single accident, and from time to time
thereafter shall be not less than such higher amounts, if procurable, as may be
reasonably required by Landlord and are customarily carried by responsible
office tenants in the Greater Boston area, (b) insurance covering any damage to
the plate glass windows in or immediately about the Demised Premises, in
reasonable amounts to be established from time to time by Landlord, and (c)
so-called contents and improvements insurance adequately insuring all property
belonging to or removable by Tenant and situated in the Demised Premises.
(b) Landlord shall maintain insurance against loss by fire and
extended coverage in an amount at least equal to eighty percent (80%) of the
replacement value of the Building.
13.2 CERTIFICATES OF INSURANCE. Such insurance shall be effected with
insurers authorized to do business in Massachusetts under valid and enforceable
policies, and such policies shall name Landlord, each Mortgagee, Tenant and any
additional parties designated by Landlord pursuant to Section 13.1 as the
insureds, as their respective interests appear. Such insurance shall provide
that it shall not be cancelled without at least ten (10) days' prior written
notice to each insured named therein. On or before the Term Commencement Date
and thereafter not less than fifteen (15) days prior to the expiration date of
each expiring policy, certificates of the policies provided for in Section 13.1
issued by the respective insurers, setting forth in full the provisions thereof
and issued by such insurers together with evidence satisfactory to Landlord or
Tenant as applicable of the payment of all premiums for such policies, shall be
delivered to Tenant or Landlord as applicable and certificates as aforesaid of
such policies shall, upon request of Landlord, be delivered by Tenant to the
holder of any mortgage affecting the Demised Premises.
13.3 GENERAL. Tenant will save Landlord harmless, and will exonerate and
indemnify Landlord, from and against any and all claims, liabilities or
penalties asserted by or on behalf of any person, firm, corporation or public
authority:
(a) On account of or based upon any injury to person, or loss of or
damage to property sustained or occurring on the Demised Premises on account of
or based upon the act, omission, fault, negligence or misconduct of any person
whomsoever (other than Landlord or its agents, servants or employees);
(b) On account of or based upon any injury to person or loss of or
damage to property, sustained or occurring elsewhere (other than on the Demised
Premises) in or about the Building (and, in particular, without limiting the
generality of the foregoing on or about the elevators, stairways, public
corridors, sidewalks, concourses, arcades, malls, galleries, vehicular tunnels,
approaches, areaways, roof, or other appurtenances and facilities used in
connection with the Building or Demised Premises) arising out of the use or
occupancy of the Building or Demised Premises by the Tenant, or any person
claiming by, through or under Tenant, excepting only that caused by the gross
negligence or wilful misconduct of Landlord or Landlord's servants, agents or
employees;
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(c) On account of or based upon (including monies due on account of)
any work or thing whatsoever done (other than by Landlord or its contractors, or
agents or employees of either) in the Demised Premises during the Term of this
Lease and during the period of time, if any, prior to the Term Commencement Date
that Tenant may have been given access to the Demised Premises; and
(d) On account of or resulting from the failure of Tenant to perform
and discharge any of its covenants and obligations under this Lease;
and, in respect of any of the foregoing items (a) - (d), from and against all
costs, expenses (including reasonable attorneys' fees), and liabilities incurred
in or in connection with any such claim, or any action or proceeding brought
thereon; and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall at Tenant's
expense resist or defend such action or proceeding and employ counsel therefor
reasonably satisfactory to Landlord, it being agreed that such counsel as may
act for insurance underwriters of Tenant engaged in such defense shall be deemed
satisfactory.
13.4 PROPERTY OF TENANT. In addition to and not in limitation of the
foregoing, Tenant covenants and agrees that all merchandise, furniture, fixtures
and property of every kind, nature and description which may be in or upon the
Demised Premises or Building, in the public corridors, or on the sidewalks,
areaways and approaches adjacent thereto, during the term hereof, shall be at
the sole risk and hazard of Tenant, and that if the whole or any part thereof
shall be damaged, destroyed, stolen or removed from any cause or reason
whatsoever no part of said damage or loss shall be charged to, or borne by
Landlord, excepting only that caused by the gross negligence or wilful
misconduct of Landlord or Landlord's servants, agents or employees.
13.5 BURSTING OF PIPES, ETC. Landlord shall not be liable for any injury
or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, electrical disturbance, water, rain or snow or
leaks from any part of the Building or from the pipes, appliances or plumbing
works or from the roof, street or sub-surface or from any other place or caused
by dampness or by any other cause of whatever nature, unless caused by or due to
the negligence of Landlord, its agents, servants or employees, and then only
after (i) notice to Landlord of the condition claimed to constitute negligence
an (ii) the expiration of a reasonable time after such notice has been received
by Landlord without such condition having been cured or corrected; and in no
event shall Landlord be liable for any loss, the risk of which is compensated by
Tenant's insurance; nor shall Landlord or its agents be liable for any such
damage caused by other tenants or persons in the Building or caused by
operations in construction of any private, public or quasi-public work,
excepting only that caused by the gross negligence or wilful misconduct of
Landlord or Landlord's servants, agents or employees.
13.6 REPAIRS AND ALTERATIONS - NO DIMINUTION OF RENTAL VALUE. Except as
otherwise provided in Articles 16 or 18, there shall be no allowance to Tenant
for diminution of rental value and no liability on the part of Landlord by
reason of inconvenience, annoyance or injury to Tenant arising from any repairs,
alterations, additions, replacements or improvements made by Landlord, Tenant or
others in or to any portion of the Building or Demised Premises, or in or to
fixtures,
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appurtenances, or equipment thereof, or for failure of Landlord or others to
make any repairs, alterations, additions or improvements in or to any portion of
the Building or of the Demised Premises, or in or to the fixtures, appurtenances
or equipment thereof provided, however, that any such work performed by or on
behalf of Landlord shall be subject to the provisions of Section 15.2
14. ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
14.1 RESTRICTIONS. Except as otherwise expressly provided in this Section
14, Tenant covenants and agrees that neither this Lease nor the term and estate
hereby granted nor any interest herein or therein, will be assigned, sublet,
mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily or
by operation of law) and that neither the Demised Premises, nor any part
thereof, will be encumbered in any manner by reason of any act or omission on
the part of Tenant, or used or occupied, or permitted to be used or occupied, or
utilized for any reason whatsoever, by anyone other than Tenant, or for any use
or purpose other than a stated in Article 1 without the prior written consent of
Landlord in every case.
14.2 REQUESTS TO ASSIGN OR SUBLET. In connection with any request by
Tenant for such consent to assign or sublet, Tenant shall submit to Landlord, in
writing, a statement containing the name of the proposed assignee or subtenant,
such information as to its financial responsibility and standing as Landlord may
reasonably require, and all of the terms and provisions upon which the proposed
assignment or subletting is to be made, and, unless the proposed area to be
assigned or sublet shall constitute an entire floor or floors, such statement
shall be accompanied by a floor plan delineating the proposed area to be
assigned or sublet. As long as Tenant is not in default (beyond any applicable
grace periods) under any of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed, Landlord shall not unreasonably
withhold or delay Landlord's prior consent to the assignment or subletting(s) by
Tenant of all or parts of the Demised Premises. Each such subletting shall be
for undivided occupancy by the subtenant of that part of the Demised Premises
affected thereby for the use permitted under this Lease and at no time shall
there be more than three (3) occupants, including Tenant, within the Demised
Premises. Landlord may, however, withhold such consent if, in Landlord's
reasonable judgment, the proposed assignee or subtenant is not engaged in a
business consistent with the character and dignity of the Building, or will
impose any additional material burden upon Landlord in the operation of the
Building (to an extent greater than the burden to which Landlord would have been
put if Tenant continued to use, or used, such part of the Demised Premises for
its own purposes), or if Landlord has any other reasonable objections to the
proposed assignment or subletting.
14.3 EXCEPTIONS. Notwithstanding the foregoing, Tenant may, without the
requirement of obtaining Landlord's consent, assign this Lease or sublease any
portion of the Demised Premises to any entity which is the parent, a
majority-owned subsidiary of Tenant, an entity under common control with Tenant
(any such entity being referred to herein as an "Affiliate") or to any entity
with which Tenant may merge or consolidate or to which Tenant may sell all or
substantially all of its assets as a going concern (such entity with which
Tenant may merge, consolidate or to which Tenant may sell all or substantially
all of its assets as aforesaid being hereinafter referred to as a "Successor"),
provided that, simultaneously with any such assignment, Tenant shall deliver
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to Landlord an agreement in form and substance reasonably satisfactory to
Landlord which contains an appropriate covenant of assumption by such assignee;
and provided further that in the case of any such assignment or sublease to a
Successor, Tenant shall have submitted to Landlord prior thereto financial
statements or other materials reasonably satisfactory to Landlord evidencing
that such Successor has financial resources comparable to that of Tenant as of
the time of such assignment or sublease.
14.4 EXCESS RENT. If the rent received by Tenant on account of a sublease
of all or any portion of the Demised Premises exceeds the Yearly Fixed Rent and
Additional Rent, allocated to the space subject to the sublease in the
proportion of the area of such space to the area of the entire Demised Premises,
Tenant shall pay to Landlord fifty percent (50%) of such excess, monthly as
received by Tenant, except that in the case of an Affiliate, no portion of any
such excess shall be payable to Landlord.
14.5 RECAPTURE. Notwithstanding the foregoing provisions of this Article:
(1) in the event Tenant proposes to assign or sublet all of the Demised Premises
other than pursuant to Section 14.3, Landlord, at Landlord's option, may give to
Tenant, within thirty (30) days after the submission by Tenant to Landlord of
the statement required to be submitted in connection with such assignment or
subletting, or, if Tenant so requests, within thirty (30) days after Tenant
notifies Landlord that Tenant wishes to undertake such assignment or subletting,
but has not yet procured a proposed assignee or subtenant, a notice terminating
this Lease on the date (referred to as the "Earlier Termination Date")
immediately prior to the proposed commencement date of the term of the proposed
assignment or subletting, as set forth in such statement, and, in the event such
notice is given, this Lease and the Term shall come to an end and expire on the
Earlier Termination Date with the same effect as if it were the date originally
fixed in this Lease for the end of the Term of this Lease, and the Rent shall be
apportioned as of said Earlier Termination Date and any prepaid portion of Rent
for any period after such date shall be refunded by Landlord to Tenant,
provided, however, that in the event Landlord shall so elect to terminate this
Lease, Tenant, upon written notice to Landlord given within twenty (20) days of
receipt by Tenant of Landlord's notice of termination, may elect to negate such
termination by declaring its intent not to proceed with such assignment or
subletting; or (2) in the event Tenant proposes to assign or sublet any portion
of the Demised Premises, Landlord, at Landlord's option, may give to Tenant,
within thirty (30) days after the submission by Tenant to Landlord of the
statement required to be submitted in connection with such proposed assignment
or subletting, a notice electing to eliminate such portion of the Demised
Premises (said portion is referred to as the "Eliminated Space") from the
Demised Premises during the period (referred to as the "Elimination Period")
commencing on the date (referred to as the "Elimination Date") immediately prior
to the proposed commencement date of the term of the proposed assignment or
subletting, as set forth in such statement, and ending on the proposed
expiration date of the term of the proposed assignment or subletting, as set
forth in such statement, and in the event such notice is given (i) the
Eliminated Space shall be eliminated from the Demised Premises during the
Elimination Period; (ii) Tenant shall surrender the Eliminated Space to Landlord
on or prior to the Elimination Date in the same manner as if said Date were the
date originally fixed in this Lease for the end of the Term of this Lease; (iii)
if the Eliminated Space shall constitute less than an entire floor, Landlord, at
Landlord's expense, shall have the right to make any alterations and
installations in the Demised
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Premises required, in Landlord's judgment, reasonably exercised, to make the
Eliminated Space a self-contained rental unit with access through corridors to
the elevators and core toilets serving the Eliminated Space, and if the Demised
Premises shall contain any core toilets or any corridors (including any
corridors proposed to be constructed by Landlord pursuant to this subdivision
(iii) providing access from the Eliminated Space to the core area), Landlord and
any tenant or other occupant of the Eliminated Space shall have the right to use
such toilets and corridors in common with Tenant and any other permitted
occupants of the Demised Premises, and the right to install signs and
directional indicators in or about such corridors indicating the name and
location of such tenant or other occupant; (iv) during the Elimination Period,
the Yearly Fixed Rent shall be reduced in the proportion which the area of the
Eliminated Space bears to the total area of the Demised Premises immediately
prior to the Elimination Date (including an equitable portion of the area of any
corridors referred to in subdivision (iii) of this sentence as part of the area
of the Eliminated Space for the purpose of computing such reduction), and any
prepaid Rent for any period after the Elimination Date allocable to the
Eliminated Space shall be refunded by Landlord to Tenant; (v) there shall be an
equitable apportionment of any Additional Rent Payable pursuant to Article 6 for
the relevant fiscal and calendar years in which said Elimination Date shall
occur; and (vi) if the Elimination Period shall end prior to the date originally
fixed in this Lease for the end of the Term of this Lease, the Eliminated Space,
in its then existing condition, shall be deemed restored to and once again a
part of the Demised Premises subject to the provisions of this Lease as if said
elimination had not occurred during the period (referred to as the "Restoration
Period") commencing on the date next following the expiration of the Elimination
Period and ending on the date originally fixed in this Lease for the end of the
Term of this Lease, except in the event that Landlord is unable to give Tenant
possession of the Eliminated Space at the expiration of the Elimination Period
by reason of the holding over or retention of possession of any tenant or other
occupant, in which event (x) the Restoration Period shall not commence, and the
Eliminated Space shall not be deemed restored to or a part of the Demised
Premises, until the date upon which Landlord shall give Tenant possession of
such Space free of occupancies, provided Landlord shall use reasonable efforts
to return the Eliminated Space to Tenant at the expiration of the Elimination
Period, (y) neither the date fixed in this Lease for the end of the Term of the
Lease, nor the validity of this Lease shall be affected and (z) Tenant waives
any right to recover any damages which may result from the failure of Landlord
to deliver possession of the Eliminated Space at the end of the Elimination
Period excepting only those resulting from Landlord's gross negligence or
willful misconduct.
14.6 FURTHER DOCUMENTATION. At the request of Landlord, Tenant shall
execute and deliver an instrument or instruments, in form satisfactory to
Landlord, setting forth any modifications to this Lease contemplated in or
resulting from the operation of the foregoing provisions of this paragraph;
however, neither Landlord's failure to request any such instrument nor Tenant's
failure to execute or deliver any such instrument shall vitiate the effect of
the foregoing provisions of this Article.
14.7 GENERAL.
(a) The failure by Landlord to exercise its option under this
paragraph with respect to any subletting shall not be deemed a waiver of such
option with respect to any extension or any
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subsequent subletting of the premises affected thereby. Tenant shall reimburse
Landlord promptly, as Additional Rent, for reasonable legal and other expense
incurred by Landlord in connection with any request by Tenant for any consent
required under the provisions of this Article.
(b) It is specifically understood and agreed that neither Tenant nor
any other person having an interest in the possession, use, occupancy or
utilization of the Demised Premises shall enter into any sublease, license,
concession or other agreement (or renewals of any of the foregoing) for use,
occupancy or utilization of space in the Demised Premises which provides for
rental or other payment for such use, occupancy or utilization based, in whole
or in part, on the net income or profits derived by any person or entity from
the space leased, used, occupied or utilized (other than an amount based on a
fixed percentage or percentages of receipts or sales). Any such purported
sublease or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy, or
utilization of any part of the Demised Premises,
(c) The listing of any name other than that of Tenant, whether on
the doors of the Demised Premises or on the Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the Demised
Premises or be deemed to be the written consent of Landlord mentioned in this
Article, it being expressly understood that any such listing is a privilege
extended by Landlord revocable at will by written notice to Tenant.
(d) If this Lease be assigned, or if the Demised Premises or any
part thereof shall be sublet or occupied by anybody other than Tenant, Landlord
may at any time and from time to time, collect rent and other charges from the
assignee, subtenant or occupant and apply the aggregate amount collected to the
Rent and other charges herein reserved, but no such assignment or collection
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
subtenant or occupant as a tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained.
Landlord shall notify Tenant of any amounts so collected by Landlord directly
from such subtenant or assignee. The consent by Landlord to an assignment or
subletting or occupancy shall not in any way be construed to relieve Tenant from
obtaining the express consent in writing of Landlord to any further assignment
or subletting or occupancy.
15. MISCELLANEOUS COVENANTS
15.1 RULES AND REGULATIONS. Tenant and Tenant's servants, employees, and
agents will faithfully observe such Rules and Regulations as are attached hereto
as Exhibit D and made a part hereof or as Landlord hereafter at any time or from
time to time may make and may communicate in writing to Tenant and which in the
reasonable judgment of Landlord shall be necessary for the reputation, safety,
care or appearance of the Property, or the preservation of good order therein,
or the operation or maintenance of the Property, or the equipment thereof, or
the comfort of tenants or others in the Building, provided, however, that in the
case of any conflict between the provisions of this Lease and any such Rules and
Regulations, the provisions of this Lease shall control, and provided further
that nothing contained in this Lease shall be construed to impose
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upon Landlord any duty or obligation to enforce such Rules and Regulations or
the terms, covenants or conditions in any other lease as against any other
tenant and Landlord shall not be liable to Tenant for violation of the same by
any other tenant, its servants, employees, agents, visitors, invitees or
licensees. Notwithstanding the foregoing, enforcement by Landlord of such Rules
and Regulations shall be done in a non-discriminatory manner.
15.2 ACCESS TO PREMISES - SHORING. Tenant shall: (i) permit Landlord to
erect, use and maintain pipes, ducts and conduits in and through the Demised
Premises, provided the same do not materially reduce the floor area or
materially adversely affect the appearance thereof; (ii) permit the Landlord and
any Mortgagee of the Building or the Building and Land or of the interest of
Landlord therein, and any lessor under any ground or underlying lease, and their
representatives, to have free and unrestricted access to and to enter upon the
Demised Premises at all reasonable hours and after reasonable notice as set
forth herein below for the purposes of inspection or of making repairs,
replacements or improvements in or to the Demised Premises or the Building or
equipment (including, without limitation, sanitary, electrical, heating, air
conditioning or other systems) or of complying with all laws, orders and
requirements of governmental or other authority or of exercising any right
reserved to Landlord by this Lease (including the right during the progress of
any such repairs, replacements or improvements or while performing work and
furnishing materials in connection with compliance with any such laws, orders or
requirements to take upon or through, or to keep and store within, the Demised
Premises all necessary materials, tools and equipment); and (iii) permit
Landlord, at reasonable times, to show the Demised Premises during ordinary
business hours to any Mortgagee, ground lessor, prospective purchaser,
prospective mortgagee, or prospective assignee of any mortgage, of the Building
or of the Building and the Land or of the interest of Landlord therein, and
during the period of twelve months next preceding the Termination Date to any
person contemplating the leasing of the Demised Premises or any part thereof. If
during the last month of the Term, Tenant shall have removed all of Tenant's
property therefrom, Landlord may immediately enter and alter, renovate and
redecorate the Demised Premises, without elimination or abatement of rent, or
incurring liability to Tenant for any compensation, and such acts shall have no
effect upon this Lease. If Tenant shall not be personally present to open and
permit any entry into the Demised Premises at any time when for any reason an
entry therein shall be necessary or permissible, Landlord or Landlord's agents
must nevertheless be able to gain such entry by contacting a responsible
representative of Tenant, whose name, address and telephone number shall be
furnished by Tenant. Provided that Landlord shall incur no additional expense
thereby, Landlord shall exercise its rights of access to the Demised Premises
permitted under any of the terms and provisions of this Lease in such manner as
not to unreasonably interfere with Tenant's use and occupation of the Demised
Premises, and upon reasonable prior notice, except in the case of an emergency.
If an excavation shall be made upon land adjacent to the Demised Premises or
shall be authorized to be made, for the purpose of doing such work as said
person shall deem necessary to preserve the Building from injury or damage and
to support the same by proper foundations Tenant shall afford, after receipt of
reasonable prior notice, to the causing or authorized to cause such excavation,
license to enter upon the Demised Premises without any claim for damage or
indemnity against Landlord, or diminution or abatement of Rent.
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15.3 ACCIDENTS TO SANITARY AND OTHER SYSTEMS. To the extent known by
Tenant, Tenant shall give to Landlord prompt notice of any fire or accident in
the Demised Premises or in the Building and of any damage to, or defective
condition in, any part or appurtenance of the Building's sanitary, electrical,
heating and air conditioning or other systems located in, or passing through,
the Demised Premises, and the damage or defective condition shall be remedied by
Landlord with reasonable diligence, but if such damage or defective condition
was caused by the negligence or wilful misconduct of Tenant or by the employees,
licensees, or invitees of Tenant, the cost to remedy the same shall be paid by
Tenant. Tenant shall not be entitled to claim any eviction from the Demised
Premises or any damages arising from any such damage or defect unless the same
(i) shall have been occasioned by the negligence of Landlord, its agents,
servants or employees and (ii) shall not, after notice to Landlord of the
condition claimed to constitute negligence, have been cured or corrected within
a reasonable time after such notice has been received by Landlord; and in case
of a claim of eviction unless such damage or defective condition shall have
rendered the Demised Premises untenantable and they shall not have been made
tenantable by Landlord within a reasonable time. Landlord agrees to diligently
work to correct such damage or defect, except as otherwise provided herein.
15.4 SIGNS, BLINDS AND DRAPES. Tenant shall not place any signs on the
exterior of the Building or on or in any window, public corridor or door visible
from the exterior of the Demised Premises. No blinds may be put on or in any
window nor may any Building drapes or blinds be removed by Tenant. Tenant may
hang its own drapes, provided that they shall not, without the prior written
approval of Landlord, in any way interfere with any Building drapery or blinds
or be visible from the exterior of the Building. Notwithstanding the foregoing,
Landlord agrees to provide, at Landlord's expense, the signage as allotted to
other single floor tenants of the Building.
15.5 ESTOPPEL CERTIFICATE. Either party shall at any time and from time to
time upon not less than twenty (20) days' prior notice by Landlord to Tenant or
by a Mortgagee to Tenant, or by Tenant to Landlord, as the case may be, execute,
acknowledge and deliver to the party making such request a statement in writing
certifying 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 the modifications) and the dates to which Rent has been
paid in advance, if any, and stating whether or not to the best knowledge of the
signer of such certificate Landlord is in default in performance of any
covenant, agreement, term, provisions or condition contained in this Lease and,
if so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant hereto may be relied
upon by any prospective purchaser of the Building or of the Building and the
Land or of the interest of Landlord therein, any Mortgagee or prospective
Mortgagee thereof, any lessor or prospective lessor thereof, any lessee or
prospective lessee thereof, or any prospective assignee of any Mortgage. The
form of any such estoppel certificate requested by a Mortgagee shall be
satisfactory to such Mortgagee. Notwithstanding anything contained in this Lease
to the contrary, the provisions of this Section 15.5 shall be inapplicable to
Teachers Insurance and Annuity Association in the event said entity shall
succeed to the rights of Landlord hereunder.
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15.6 PROHIBITED ITEMS. Tenant shall not bring or permit to be brought or
kept in or on the Demised Premises or elsewhere in the Building any hazardous,
inflammable, combustible or explosive fluid, material, chemical or substance
(except such as are related to Tenant's use of the Demised Premises, provided
that the same are stored and handled in a proper fashion consistent with all
applicable legal standards).
15.7 REQUIREMENTS OF LAW FINES AND PENALTIES. Tenant at its sole expense
shall comply with all laws, rules, orders and regulations of Federal, State,
County and Municipal Authorities and with any direction of any public officer or
officers, pursuant to law, which shall impose any duty upon Landlord or Tenant
with respect to and arising out of Tenant's use or occupancy of the Demised
Premises. Tenant shall reimburse and compensate Landlord for all expenditures
made by, or damages or fines sustained or incurred by, Landlord due to
nonperformance or noncompliance with or breach or failure to observe any term,
covenant or condition of this Lease upon Tenant's part to be kept, observed,
performed or complied with. If Tenant receives notice of any violation of law,
ordinance, order or regulation applicable to the Demised Premises, it shall give
prompt notice thereof to Landlord.
15.8 TENANT'S ACTS - EFFECT ON INSURANCE. Except for permitted uses,
Tenant shall not do or permit to be done any act or thing upon the Demised
Premises or elsewhere in the Building which will invalidate or be in conflict
with any insurance policies covering the Building and the fixtures and property
therein and shall not do, or permit to be done, any act or thing upon the
Demised Premises which shall subject Landlord to any liability or responsibility
for injury to any person or persons or to property by reason of any business or
operation being conducted on said Demised Premises or for any other reason.
Tenant at its own expense shall comply with all rules, orders, regulations or
requirements of the Board of Fire Underwriters or any other similar body having
jurisdiction, and shall not (i) do, or permit anything to be done, in or upon
the Demised Premises, or bring or keep anything therein, except as now or
hereafter permitted by the Fire Department, Board of Underwriters, Fire
Insurance Rating Organization, or other authority having jurisdiction, and then
only in such quantity and manner of storage as will not increase the rate for
any insurance applicable to the Building, or (ii) use the Demised Premises in
manner which shall increase such insurance rates on the Building or on property
located therein, over that applicable when Tenant first took occupancy of the
Demised Premises hereunder. If by reason of failure of Tenant to comply with the
provisions hereof the insurance rate applicable to any policy of insurance shall
at any time thereafter be higher than it otherwise would be, then Tenant shall
reimburse Landlord for that part of any insurance premiums thereafter paid by
Landlord, which shall have been charged because of such failure by Tenant.
15.9 MISCELLANEOUS. Tenant shall not suffer or permit the Demised Premises
or any fixtures, equipment or utilities therein or serving the same, to be
overloaded, damaged or defaced, nor permit any hole to be drilled or made in any
part thereof.
16. DAMAGE BY FIRE, ETC.
In the event of loss of, or damage to, the Demised Premises or the
Building by fire or other casualty, the rights and obligations of the parties
hereto shall be as follows:
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(a) If the Demised Premises, or any part thereof, shall be damaged
by fire or other casualty, Tenant shall give prompt notice thereof to Landlord,
and Landlord, upon receiving such notice, shall proceed promptly and with due
diligence, subject to unavoidable delays, to repair, or cause to be repaired,
such damage. If the Demised Premises or any part thereof shall be rendered
untenantable by reason of such damage, whether to the Demised Premises or to the
Building, the Yearly Fixed Rent and Additional Rent shall proportionately xxxxx
for the period from the date of such damage to the date when such damage shall
have been repaired.
(b) If, as a result of fire or other casualty, the whole or a
substantial portion of the Building is rendered untenantable, Landlord, within
ninety (90) days from the date of such fire or other casualty, may terminate
this Lease by notice to Tenant, specifying a date not less than twenty (20) nor
more than forty (40) days after the giving of such notice on which the Term of
this Lease shall terminate. If Landlord does not so elect to terminate this
Lease, then Landlord shall proceed with diligence to repair the damage to the
Demised Premises and all facilities serving the same, if any, which shall have
occurred, and the Yearly Fixed Rent and Additional Rent shall meanwhile
proportionately xxxxx, all as provided in Paragraph (a) of this Section.
However, if, in the event of any damage by fire or other casualty, such damage
is not repaired and the Demised Premises and all facilities serving the same
restored to substantially the same condition as they were prior to such damage
within six (6) months from the date of such damage, Tenant within thirty (30)
days from the expiration of such six (6) month period, may terminate this Lease
by notice to Landlord, specifying a date not more than sixty (60) days after the
giving of such notice on which the term of this Lease shall terminate.
(c) If the Demised Premises shall be rendered untenantable by fire
or other casualty during the last year of the Term of this Lease, Landlord may
terminate this Lease effective as of the date of such fire or other casualty
upon notice to Tenant given within thirty (30) days after such fire or other
casualty.
(d) Landlord shall not be required to repair or replace any of
Tenant's business machinery, equipment, cabinet work, furniture, personal
property or other installations (which shall, however, be substantially restored
by Tenant within ninety (90) days after Landlord shall have completed any repair
or restoration required under the terms of this Article), and no damages,
compensation or claim shall be payable by Landlord for inconvenience, loss of
business or annoyance arising from any repair or restoration of any portion of
the Demised Premises or of the Building.
(e) The provisions of this Article shall be considered an express
agreement governing any instance of damage or destruction of the Building or the
Demised Premises by fire or other casualty, and any law now or hereafter in
force providing for such a contingency in the absence of express agreement shall
have no application.
(f) In the event of any termination of this Lease pursuant to this
Article, the Term of this Lease shall expire as of the effective termination
date as fully and completely as if such date were the date herein originally
scheduled as the Termination Date. Tenant shall have access
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to the Demised Premises for a period of thirty (30) days after the date of
termination in order to remove Tenant's personal property.
(g) Landlord's Architect's certificate, given in good faith, shall
be deemed conclusive of the statements therein contained and binding upon Tenant
with respect to the performance and completion of any repair or restoration work
undertaken by Landlord pursuant to this Article or Article 18. Any minor or
insubstantial details of construction or mechanical adjustments which remain to
be done after the delivery of said certificate shall be handled on a punch list
basis and thereafter promptly completed by Landlord.
17. WAIVER OF SUBROGATION
In any case in which Tenant shall be obligated under any provision of this
Lease to pay to Landlord any loss, cost, damage, liability, or expense suffered
or incurred by Landlord, Landlord shall allow to Tenant as an offset against the
amount thereof (i) the net proceeds of any insurance collected by Landlord for
or on account of such loss, cost, damage, liability or expense, provided that
the allowance of such offset does not invalidate or prejudice the policy or
policies under which such proceeds were payable and (ii) if such loss, cost,
damage, liability or expense shall have been caused by a peril against which
Landlord has agreed to procure insurance coverage under the terms of this Lease,
the amount of such insurance coverage, whether or not actually procured by
Landlord.
In any case in which Landlord shall be obligated under any provision of
this Lease to pay to Tenant any loss, cost, damage, liability or expense
suffered or incurred by Tenant, Tenant shall allow to Landlord as an offset
against the amount thereof (i) the net proceeds of any insurance collected by
Tenant for or on account of such loss, cost, damage, liability, or expense,
provided that the allowance of such offset does not invalidate the policy or
policies under which such proceeds were payable and (ii) if such loss, cost,
damage, liability or expense shall have been caused by a peril against which
Tenant has agreed to procure insurance coverage under the terms of this Lease,
the amount of such insurance coverage, whether or not actually procured by
Tenant.
The parties hereto shall each endeavor to procure an appropriate clause
in, or endorsement on, any fire or extended coverage insurance policy covering
the Demised Premises and the Building and personal property, fixtures and
equipment located thereon or therein, pursuant to which the insurance companies
waive subrogation or consent to a waiver of right of recovery, and having
obtained such clauses and/or endorsements of waiver of subrogation or consent to
a waiver of right of recovery each party hereby agrees that it will not make any
claim against or seek to recover from the other for any loss or damage to its
property or the property of others resulting from fire or other perils covered
by such fire and extended coverage insurance; provided, however, that the
release, discharge, exoneration and covenant not to xxx herein contained shall
be limited by the terms and provisions of the waiver of subrogation clauses
and/or endorsements or clauses and/or endorsements consenting to a waiver of
right of recovery and shall be co-extensive therewith. If either party may
obtain such clause or endorsement only upon payment of an additional premium,
such party shall promptly so advise the other party and shall
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be under no obligation to obtain such clause or endorsement unless such other
party pays the premium.
18. CONDEMNATION - EMINENT DOMAIN
In the event that the whole or any material part of the Building shall be
taken or appropriated by eminent domain or shall be condemned for any public or
quasi-public use, or (by virtue of any such taking, appropriation or
condemnation) shall suffer any damage (direct, indirect or consequential) for
which Landlord or Tenant shall be entitled to compensation then (and in any such
event) this Lease and the Term hereof may be terminated at the election of
Landlord by a notice in writing of its election so to terminate which shall be
given by the Landlord to Tenant within sixty (60) days following the date on
which Landlord shall have received notice of such taking, appropriation or
condemnation. In the event that more than twenty-five percent (25%) of the floor
area of the Demised Premises shall be so taken, appropriated or condemned, then
(and in any such event) this Lease and the Term hereof may be terminated at the
election of Tenant by a notice in writing of its election so to terminate which
shall be given by Tenant to Landlord within sixty (60) days following the date
on which Tenant shall have received notice of such taking, appropriation or
condemnation.
Upon the giving of any such notice of termination (either by Landlord or
Tenant) this Lease and the Term hereof shall terminate on or retroactively as of
the date on which Tenant shall be required to vacate any part of the Demised
Premises or shall be deprived of a substantial part of the means of access
thereto, provided, however, that Landlord may in Landlord's notice elect to
terminate this Lease and the Term hereof retroactively as of the date on which
such taking, appropriation or condemnation became legally effective. In the
event of any such termination, this Lease and the Term hereof shall expire as of
the effective termination date as fully and completely as if such date were the
date herein originally scheduled as the Termination Date. If neither party
(having the right so to do) elects to terminate Landlord will, with reasonable
diligence and at Landlord's expense, restore the remainder of the Demised
Premises, or the remainder of the means of access, as nearly as practicably may
be to the same condition as obtained prior to such taking, appropriation or
condemnation in which event (i) a just proportion of the Yearly Fixed Rent and
Additional Rent, according to the nature and extent of the taking, appropriation
or condemnation and the resulting permanent injury to the Demised Premises and
the means of access thereto, shall be permanently abated, and (ii) a just
proportion of the remainder of the Yearly Fixed Rent and Additional Rent,
according to the nature and extent of the taking, appropriation or condemnation
and the resultant injury sustained by the Premises and the means of access
thereto, shall be abated until what remains of the Premises and the means of
access thereto shall have been restored as fully as may be for permanent use and
occupation by Tenant hereunder. Except for any award specifically reimbursing
Tenant for moving or relocation expenses and Tenant's removable fixtures and
equipment, there are expressly reserved to Landlord all rights to compensation
and damages created, accrued or accruing by reason of any such taking,
appropriation or condemnation, in implementation and in confirmation of which
Tenant does hereby acknowledge that Landlord shall be entitled to receive and
retain all such compensation and damages, grants to Landlord all and whatever
rights (if any) Tenant may have to such compensation and damages, and agrees to
execute and deliver all and whatever further instruments
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of assignment as Landlord may from time to time request. In the event of any
taking of the Demised Premises or any part thereof for temporary use, (i) this
Lease shall be and remain unaffected thereby, and (ii) Tenant shall be entitled
to receive for itself any award made for such use, provided, that if any taking
is for a period extending beyond the Term of this Lease, such award shall be
apportioned between Landlord and Tenant as of the Termination Date.
19. DEFAULT
19.1 CONDITIONS OF LIMITATION - RE-ENTRY - TERMINATION. This Lease and the
herein term and estate are upon the condition that if (a) subject to the
provisions of Section 19.6, Tenant shall neglect or fail to perform or observe
any of the Tenant's covenants herein, including (without limitation) the
covenants with regard to the payment of Rent on or before ten (10) days of its
due date; or (b) Tenant shall be involved in financial difficulties as evidenced
by an admission in writing by Tenant of Tenant's inability to pay its debts
generally as they become due, or by the making or offering to make a composition
of its debts with its creditors; or (c) Tenant shall make an assignment or trust
mortgage, or other conveyance or transfer of like nature, of all or a
substantial part of its property for the benefit of its creditors, or (d) the
leasehold hereby created shall be taken on execution or by other process of law
and shall not be revested in Tenant within sixty (60) days thereafter; or (e) a
receiver, sequester, trustee or similar officer shall be appointed by a court of
competent jurisdiction to take charge of all or a substantial part of Tenant's
property and such appointment shall not be vacated within sixty (60) days or (f)
any proceeding shall be instituted by or against Tenant pursuant to any of the
provisions of any Act of Congress or State law relating to bankruptcy,
reorganization, arrangements, compositions or other relief from creditors, and,
in the case of any such proceeding instituted against it, if Tenant shall fail
to have such proceeding dismissed within thirty (30) days or if Tenant is
adjudged bankrupt or insolvent as a result of any such proceeding; or (g) any
event shall occur or any contingency shall arise whereby this Lease, or the term
and estate thereby created would (by operation of law or otherwise) devolve upon
or pass to any person, firm or corporation other than Tenant, except as
expressly permitted under Article 14 hereof; then, and in any such event (except
as hereinafter in Article 19.2 otherwise provided) Landlord may, in a manner
consistent with applicable law, immediately or at any time thereafter declare
this Lease terminated by notice to Tenant or, without further demand or notice,
enter into and upon the Demised Premises (or any part thereof in the name of the
whole), and in either such case (and without prejudice to any remedies which
might otherwise be available for arrears of rent or other charges due hereunder
or preceding breach of covenant and without prejudice to Tenant's liability for
damages as hereinafter stated), this Lease shall terminate. The words "re-entry"
and "re-enter" as used in this Lease are not restricted to their technical legal
meaning.
19.2 DAMAGES - ASSIGNMENT FOR BENEFIT OF CREDITORS. For the more effectual
securing by Landlord of the rent and other charge and payments reserved
hereunder, it is agreed as a further condition of this Lease that if at any time
Tenant shall make an assignment of its property for the benefit of its creditors
under the terms of which the debts provable by its creditors shall be debts
provable against the estate of insolvent debtors either under the laws of the
Commonwealth of Massachusetts or under some law or laws other than the
Bankruptcy Code as now or hereafter enacted, then and in any such case the same
shall constitute a breach of this Lease, and the term
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and estate hereby created shall terminate ipso facto, without entry or other
action by Landlord; and notwithstanding any other provisions of this Lease
Landlord shall forthwith upon such termination, without prejudice to any
remedies which might otherwise be available for arrears of rent or other charges
due hereunder or preceding breach of this Lease, be ipso facto entitled to
recover as liquidated damages the sum of (a) the amount by which, at the time of
such termination of this Lease, (i) the aggregate of the Rent projected over the
period commencing with such termination and ending with the Termination Date
stated in Article 1 exceeds (ii) the aggregate projected rental value of the
Demised Premises for such period and (b) (in view of the uncertainty of prompt
re-letting and the expense entailed in re-letting the Demised Premises) an
amount equal to the Rent payable for and in respect of the calendar year next
preceding the date of termination, as aforesaid. Upon such termination Landlord,
may immediately or at any time thereafter, without demand or notice, enter into
or upon the Demised Premises (or any part thereof in the name of the whole), and
(without being taken or deemed to be guilty of any manner of trespass or
conversion, and without being liable to indictment, prosecution or damages
thereof) may, forcibly if necessary, expel Tenant and those claiming under
Tenant from the Demised Premises and remove therefrom the effects of Tenant and
those claiming under Tenant.
19.3 DAMAGES - TERMINATION. Upon the termination of this Lease under the
provisions of this Article, then except as hereinabove in Section 19.2 otherwise
provided, Tenant shall pay to Landlord the Rent payable by Tenant to Landlord up
to the time of such termination, shall continue to be liable for any preceding
breach of covenant, and in addition, shall pay to Landlord as damages, at the
election of Landlord,
either:
(x) the amount by which, at the time of the termination of this
Lease (or at any time thereafter if Landlord shall have initially elected
damages under Subparagraph (y), below), (i) the aggregate of the Rent projected
over the period commencing with such time and ending on the originally scheduled
Termination Date as stated in Article 1 exceeds (ii) the aggregate projected
rental value of the Demised Premises for such period,
or,
(y) amounts equal to the Rent which would have been payable by
Tenant had this Lease not been so terminated, payable upon the due dates
therefor specified herein following such termination and until the originally
scheduled Termination Date as specified in Article 1, provided, however, if
Landlord shall re-let the Demised Premises during such period, that Landlord
shall credit Tenant with the net rents received by Landlord from such
re-letting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such re-letting the reasonable
expenses incurred or paid by Landlord terminating this Lease, as well as the
reasonable expenses of re-letting, including altering and preparing the Demised
Premises for new tenants, brokers' commissions, and all other similar and
dissimilar expenses properly chargeable against the Demised Premises and the
rental therefrom, it being understood that any such re-letting may be for a
period equal to or shorter or longer than the remaining term of this Lease; and
provided, further, that (i) in no event shall Tenant be entitled to receive any
excess
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of such net rents over the sums payable by Tenant to Landlord hereunder and (ii)
in no event shall Tenant be entitled in any suit for the collection of damages
pursuant to this Subparagraph (y) to a credit in respect of any net rents from a
re-letting except to the extent that such net rents are actually received by
Landlord prior to such determination. If the Demised Premises or any part
thereof should be re-let in combination with other space, then proper
apportionment on a square foot area basis shall be made of the rent received
from such re-letting and of the expenses of re-letting. Landlord agrees to use
reasonable efforts to re-let the Demised Premises.
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant.
19.4 FEES AND EXPENSES. If Tenant shall default in the performance of any
covenant on Tenant's part to be performed as in this Lease contained, Landlord
may immediately, or at any time thereafter, upon written notice to Tenant and
Tenant's failure to cure as provided in Section 19.6, perform the same for the
account of Tenant. If Landlord at any time is compelled to pay or elects to pay
any sum of money, or do any act which will require the payment of any sum of
money, by reason of the failure of Tenant to comply with any provision hereof,
or if Landlord is compelled to or does incur any expense, including reasonable
attorneys' fees, in instituting, prosecuting and/or defending any action or
proceeding instituted by reason of any default of Tenant hereunder, Tenant shall
on demand pay to Landlord by way of reimbursement the sum or sums so paid by
Landlord with all interest, costs and damages. Without limiting the generality
of the foregoing, in the event that any Rent is in arrears by more than ten (10)
days after written notice thereof by Landlord to Tenant, Tenant shall pay, as
Additional Rent, a delinquency charge equal to one and one-half percent (1-1/2%)
of the arrearage for each calendar month (or fraction thereof) during which it
remains unpaid.
19.5 LANDLORD'S REMEDIES NOT EXCLUSIVE. The specified remedies to which
Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any remedies or means of redress to which Landlord may at any time
be lawfully entitled, and Landlord may invoke any remedy (including the remedy
of specific performance) allowed at law or in equity as if specific remedies
were not herein provided for.
19.6 GRACE PERIOD. Notwithstanding anything to the contrary in this
Article contained, Landlord agrees not to take any action to terminate this
Lease (a) for default by Tenant in the payment when due of Rent, if Tenant shall
cure such default within ten (10) days after written notice thereof given by
Landlord to Tenant, or (b) for default by Tenant in the performance of any other
covenant, if Tenant shall cure such default within a period of thirty (30) days
after written notice thereof given by Landlord to Tenant (except where the
nature of the default is such
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that remedial action should appropriately take place sooner as indicated in such
written notice), or with respect to covenants other than to pay a sum of money
within such additional period as may reasonably be required to cure such default
if (because of governmental restrictions or any other cause beyond the
reasonable control of Tenant) the default is of such a nature that it cannot be
cured within such thirty (30)-day period, provided, however, (1) that there
shall be no extension of time beyond such thirty (30)-day period for curing of
any such default unless, not more than ten (10) days after the receipt of the
notice of default, Tenant in writing (i) shall specify the cause on account of
which the default cannot be cured during such period and shall advise Landlord
of its intention duly to institute all steps necessary to cure the default and
(ii) shall as soon as may be reasonable, duly institute and thereafter
diligently prosecute to completion all steps necessary to cure such default and,
(2) that no notice of the opportunity to cure default need be given, and no
grace period whatsoever shall be allowed to Tenant, if the default is incurable
or if the covenant or condition, the breach of which gave rise to the default,
had, by reason of a breach on a prior occasion within the then immediately
preceding twelve (12) month period, been the subject of a notice hereunder to
cure such default.
20. END OF TERM - ABANDONED PROPERTY
Upon the expiration or other termination of the Term of this Lease, Tenant
shall peaceably quit and surrender to Landlord the Demised Premises and all
alterations and additions thereto, broom clean in good order, repair and
condition excepting only reasonable use and wear and damage by fire or other
casualty for which, under other provisions of this Lease, Tenant has no
responsibility of repair or restoration. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of this Lease.
Any personal property in which Tenant has an interest which shall remain
in the Building or on the Demised Premises after the expiration or termination
of the Term of this Lease shall be conclusively deemed to have been abandoned,
and may be disposed of in such manner as Landlord may see fit; provided,
however, notwithstanding the foregoing, that Tenant will, upon request of
Landlord made not later than thirty (30) days after the expiration or
termination of the term hereof, promptly remove from the Building any such
personal property or, if any part thereof shall be sold, that Landlord may
receive and retain the proceeds of such sale and apply the same, at its option,
against the expenses of the sale, the cost of moving and storage, any arrears of
Rent payable hereunder by Tenant to Landlord and any damages to which Landlord
may be entitled under Article 19 hereof or pursuant to law, with the balance if
any, to be paid to Tenant.
21. RIGHTS OF MORTGAGEES
21.1 SUPERIORITY OF LEASE. Except as provided in Section 21.7 hereof and
to the extent that it may be provided otherwise by written agreement between
Tenant and a Mortgagee, this Lease shall be superior, and shall not be
subordinated, to a Mortgage or to any other voluntary lien or encumbrance
affecting the Land or Building or any part thereof, provided, however, that such
Mortgage shall be superior, and shall not be subordinated, to this Lease with
respect to the following:
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(a) the prior right and claim under and the prior lien of said
Mortgage in, to and upon any award or other compensation heretofore or hereafter
to be made for any taking by eminent domain of any part of the Demised Premises,
and as to the right of disposition thereof in accordance with the provisions of
the said Mortgage; or
(b) the prior right and claim under the prior lien of the said
Mortgage, in, to and upon any proceeds payable under all policies of fire and
rent insurance upon the Demised Premises and as to the right of disposition
thereof in accordance with the terms of said Mortgage; and
(c) any lien, right, power or interest, if any, which may have
arisen or intervened in the period between the recording of the said Mortgage
and the execution of this Lease.
Landlord shall use commercially reasonable efforts to obtain from TIAA, as
mortgagee of the Property, an Agreement of Subordination Non-disturbance and
Attornment in substantially the form annexed hereto as EXHIBIT E.
21.2 ENTRY AND POSSESSION. Upon entry and taking possession of the
Property by a Mortgagee, for the purpose of foreclosure or otherwise, such
Mortgagee shall have all the rights of Landlord, and shall be liable to perform
all the obligations of Landlord arising and accruing during the period of such
possession by such Mortgagee.
21.3 RIGHT TO CURE. No act or failure to act on the part of Landlord which
would entitle Tenant under the terms of this Lease, or by law, to be relieved of
Tenant's obligations hereunder or to terminate this Lease, shall result in a
release or termination of such obligations or a termination of this Lease unless
(i) Tenant shall have first given written notice of Landlord's act or failure to
act to TIAA at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
and Real Estate Investments, specifying the act or failure to act on the part of
Landlord which could or would give basis to Tenant's rights; and (ii) TIAA,
after receipt of such notice, shall have failed or refused to correct or cure
the condition complained of within a reasonable time thereafter, but nothing
contained in this paragraph shall be deemed to impose any obligation on TIAA to
correct or cure any such condition. "Reasonable time" as used above means and
includes a reasonable time to obtain possession of the Land and Building if any
such Mortgagee elects to do so and a reasonable time to correct or cure the
condition if such condition is determined to exist.
21.4 DUTY TO CONSTRUCT. Notwithstanding any other provision to the
contrary contained in this Lease, if prior to substantial completion of
Landlord's obligations under Article 4 any holder of a Mortgage enters and takes
possession of the Property for the purpose of foreclosing such Mortgage, such
holder may elect, by written notice given to Tenant and Landlord at any time
within 90 days after such entry and taking possession, not to perform Landlord's
obligations under Article 4, and in such event such holder and all persons
claiming under it shall be relieved of all obligations to perform, and all
liability for failure to perform said Landlord's obligations under Article 4 and
Tenant may, without waiver of any rights which Tenant may have against Landlord,
terminate this Lease and all its obligations hereunder by written notice to
Landlord and such
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holder given within 30 days after the day on which such holder shall have given
its notice as aforesaid.
21.5 PREPAID RENT. No Rent shall be paid more than thirty (30) days prior
to the due dates thereof and, as to a first Mortgagee of record and any other
Mortgagees of whom Tenant has been given written notice, payments made in
violation of this provision shall (except to the extent that such rents are
actually received by such Mortgagee) be a nullity as against such Mortgagee and
Tenant shall be liable for the amount of such payments to such Mortgagee.
21.6 CONTINUING OFFER. The covenants and agreements contained in this
Lease with respect to the rights, powers and benefits of a Mortgagee
(particularly, without limitation thereby, the covenants and agreements
contained in this Article) constitute a continuing offer to any person,
corporation or other entity, which by accepting or requiring an assignment of
this Lease or by entry or foreclosure assumes the obligations herein set forth
with respect to such Mortgagee; every such Mortgagee is hereby constituted a
party to this Lease as an obligee hereunder to the same extent as though its
name was written hereon as such and such Mortgagee shall be entitled to enforce
such provisions in its own name.
21.7 SUBORDINATION. Notwithstanding the foregoing provisions of this
Article, Tenant agrees, at the request of Landlord or any Mortgagee, to execute
and deliver promptly any certificate or other instrument which Landlord or such
Mortgagee may request subordinating the Lease and all rights of Tenant under the
Lease to any Mortgage, and to all advances made under such mortgage, provided
that (i) the holder of any such Mortgage shall execute and deliver to Tenant a
nondisturbance agreement substantially in the form attached hereto as EXHIBIT E
to the effect that, in the event of any foreclosure of such Mortgage, such
holder will not name Tenant as a party defendant to such foreclosure nor disturb
its possession under the Lease, or (ii) any such Mortgage shall contain
provisions substantially to the same effect as those contained in such a
nondisturbance agreement.
21.8 LIMITATIONS ON LIABILITY. Nothing contained in the foregoing Section
21.7 or in any such nondisturbance agreement or nondisturbance provision shall,
however, affect the prior rights of the holder of any Mortgage with respect to
the proceeds of any award in condemnation or of any fire insurance policies
affecting the Building, or impose upon any such holder any liability (i) for the
erection or completion of the Building, or (ii) in the event of damage or
destruction to the Building or the Demised Premises by fire or other casualty,
for any repairs, replacements, rebuilding or restoration except such repairs,
replacements, rebuilding or restoration as can reasonably be accomplished from
the net proceeds of insurance actually receive by, or made available to, such
holder, or (iii) for any default by Landlord under the Lease occurring prior to
any date upon which such holder shall become Tenant's Landlord, or (iv) for any
credits, offsets or claims against the rent under the Lease as a result of any
acts or omissions of Landlord committed or omitted prior to such date, or (v)
for return of any security deposit or other funds unless the same shall have
been received by such holder, and any such agreement or provision may so state.
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22. QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant keeps and performs each
and every covenant, agreement, term, provision and condition herein contained on
the part and on behalf of Tenant to be kept and performed, Tenant shall quietly
enjoy the Demised Premises from and against the claims of all persons claiming
by, through or under Landlord subject, nevertheless, to the covenants,
agreements, terms, provisions and conditions of this Lease and to the mortgages,
ground leases and/or underlying leases to which this Lease is subject and
subordinate.
23. ENTIRE AGREEMENT - WAIVER - SURRENDER
23.1 ENTIRE AGREEMENT. This Lease and the Exhibits made a part hereof
contain the entire and only agreement between the parties and any and all
statements and representations, written and oral, including previous
correspondence and agreements between the parties hereto, are merged herein.
Tenant acknowledges that all representations and statements upon which it relied
in executing this Lease are contained herein and that Tenant in no way relied
upon any other statements or representations, written or oral. Any executory
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of this Lease in whole or in part unless such executory
agreement is in writing and signed by the party against whom enforcement of the
change, modification, discharge or abandonment is sought. Nothing herein shall
prevent the parties from agreeing to amend this Lease and the Exhibits made part
hereof as long as such amendment shall be in writing and shall be duly signed by
both parties.
23.2 WAIVER. The failure of Landlord to seek redress for violation, or to
insist upon the strict performance, of any covenant or condition of this Lease,
or any of the Rules and Regulations promulgated hereunder, shall not prevent a
subsequent act, which would have originally constituted a violation, from having
all the force and effect of an original violation. The receipt by Landlord of
rent with knowledge of the breach of any covenant of this Lease shall not be
deemed a waiver of such breach. The failure of Landlord to enforce any of such
Rules and Regulations against Tenant and/or any other tenant or subtenant in the
Building shall not be deemed a waiver of any such Rules and Regulations. No
provisions of this Lease shall be deemed to have been waived by Landlord or
Tenant unless such waiver be in writing signed by Landlord or Tenant, as the
case may be. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on account
of the stipulated rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice of
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
23.3 SURRENDER. No act or thing done by Landlord during the term hereby
demised shall be deemed an acceptance of a surrender of the Demised Premises,
and no agreement to accept such surrender shall be valid, unless in writing
signed by Landlord. No employee of Landlord or of Landlord's agents shall have
any power to accept the keys of the Demised Premises prior to the termination of
this Lease. The delivery of keys to any employee of Landlord or of Landlord's
agents shall not operate as a termination of the Lease or a surrender of the
Demised
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Premises. In the event that Tenant at any time desires to have Landlord underlet
the Demised Premises for Tenant's account, Landlord or Landlord's agents are
authorized to receive the keys for such purposes without releasing Tenant from
any of the obligations under this Lease, and Tenant hereby relieves Landlord of
any liability for loss of or damage to any of Tenant's effects in connection
with such underletting.
24. INABILITY TO PERFORM - EXCULPATORY CLAUSE
Except as otherwise expressly provided in this Lease, this Lease and the
obligations of Tenant to pay rent hereunder and perform all other covenants,
agreements, terms, provisions and conditions hereunder on the part of Tenant to
be performed shall in no way be affected, impaired or excused because Landlord
is unable to fulfill any of its obligations under this Lease or is unable to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make or is delayed in making any repairs, replacements,
additions, alterations, improvements or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from doing so by reason of strikes or labor troubles or any other
similar or dissimilar cause whatsoever beyond Landlord's reasonable control,
including but not limited to, governmental preemption in connection with a
national emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any governmental agency or by reason of the
conditions of supply and demand which have been or are affected by war,
hostilities or other similar or dissimilar emergency. In each such instance of
inability of Landlord to perform, Landlord shall exercise reasonable diligence
to eliminate the cause of such inability to perform.
Tenant shall neither assert nor seek to enforce any claim for breach of
this Lease against any of Landlord's assets other than Landlord's interest in
the Building of which the Premises are a part and in the rents, issues and
profits thereof, and Tenant agrees to look solely to such interest for the
satisfaction of any liability of Landlord under this Lease, it being
specifically agreed that in no event shall Landlord (which term shall include
without limitation any of the officers, trustees, directors, partners,
beneficiaries, joint venturers, members, stockholders or other principals or
representatives, disclosed or undisclosed of Landlord or any managing agent)
ever be personally liable for any such liability. This paragraph shall not limit
any right that Tenant might otherwise have to obtain injunctive relief against
Landlord or to take any other action which shall not involve the personal
liability of Landlord to respond in monetary damages from Landlord's assets
other than the Landlord's interest in said real estate, as aforesaid. In no
event shall Landlord ever be liable for consequential damages.
25. BILLS AND NOTICES
Any notice, consent, request, xxxx, demand or statement hereunder by
either party to the other party shall be in writing and, if received at
Landlord's or Tenant's address, shall be deemed to have been duly given when
either delivered or served personally or three (3) days after mailed in a
postpaid envelope, deposited in the United States mails addressed to the
respective party at its address as stated in Article 1, or if any address for
notices shall have been duly changed as hereinafter provided, if mailed as
aforesaid to the party at such changed address. Either party
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may at any time change the address for such notices, consents, requests, bills,
demands or statements by delivering or mailing, as aforesaid, to the other party
a notice stating the change and setting forth the changed address, provided such
changed address is within the United States.
All bills and statements for reimbursement or other payments or charges
due from Tenant to Landlord hereunder shall set forth in reasonable detail the
particulars relating thereto and shall be due and payable in full thirty (30)
days, unless herein otherwise provided, after submission thereof by Landlord to
Tenant. Landlord shall, at Tenant's reasonable request, promptly furnish Tenant
with such additional reasonable details relating thereto as Tenant shall
reasonably request. Tenant's failure to make timely payment of any amounts
indicated by such bills and statements, whether for work done by Landlord at
Tenant's request, reimbursement provided for by this Lease or for any other sums
properly owing by Tenant to Landlord, shall be treated as a default in the
payment of Rent, in which event Landlord shall have all rights and remedies
provided in this Lease for the nonpayment of Rent.
26. PARTIES BOUND - SEISIN OF TITLE
The covenants, agreements, terms, provisions and conditions of this Lease
shall bind and benefit the successors and assigns of the parties hereto with the
same effect as if mentioned in each instance where a party hereto is named or
referred to, except that no violation of the provisions of Article 14 hereof
shall operate to vest any rights in any successor or assignee of Tenant and that
the provisions of this Article shall not be construed as modifying the
conditions of limitation contained in Article 19 hereof.
If in connection with or as a consequence of the sale, transfer or other
disposition of the real estate (Land and/or Building either or both, as the case
may be) of which the Demised Premises are a part Landlord ceases to be the owner
of the reversionary interest in the Premises, Landlord shall so notify Tenant
and Landlord shall be entirely freed and relieved from the performance and
observance thereafter of all covenants and obligations hereunder accruing
thereafter on the part of Landlord to be performed and observed upon notice to
Tenant from the person so succeeding to Landlord's interest that such person has
assumed Landlord's obligations hereunder, it being understood and agreed in such
event (and it shall be deemed and construed as a covenant running with the land)
that the person succeeding to Landlord's ownership of said reversionary interest
shall thereupon and thereafter assume, and perform and observe, any and all of
such covenants and obligations of Landlord.
27. MISCELLANEOUS
27.1 SEPARABILITY. If any provision of this Lease or portion of such
provision or the application thereof to any person or circumstance is for any
reason held invalid or unenforceable, the remainder of the Lease (or the
remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
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27.2 CAPTIONS. The captions are inserted only as a matter of convenience
and for reference, and in no way define, limit or describe the scope of this
Lease nor the intent of any provision thereof.
27.3 BROKER. Each party represents and warrants that it has not directly
or indirectly dealt, with respect to the leasing of office space in the
Building, with any broker or had its attention called to the Premises or other
space to let in the Building, by any broker other than the Broker(s) (if any)
listed in Article 1 whose commission shall be the responsibility of Landlord.
Each party agrees to exonerate and save harmless and indemnify the other against
any claims for a commission by any other broker, person or firm with whom such
party has dealt in connection with the execution and delivery of this Lease or
out of negotiations between Landlord and Tenant with respect to the leasing of
other space in the Building.
27.4 GOVERNING LAW. This lease is made pursuant to, and shall be governed
by, and construed in accordance with, the laws of the Commonwealth of
Massachusetts.
27.5 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord of
its interest in this Lease, or the Rent payable hereunder, conditional in nature
or otherwise, which assignment is made to or held by a bank, trust company,
insurance company or other institutional lender holding a Mortgage on the
Building, Landlord and Tenant agree:
(a) that the execution thereof by Landlord and acceptance thereof by
such Mortgagee shall never be deemed an assumption by such Mortgagee of any of
the obligations of the Landlord thereunder, unless such Mortgagee shall, by
written notice sent to the Tenant, specifically otherwise elect; and
(b) that, except as aforesaid, such Mortgagee shall be treated as
having assumed the Landlord's obligations thereunder only upon foreclosure of
such Mortgagee's Mortgage and the taking of possession of the Demised Premises
after having given notice of its exercise of the option stated in Article 21
hereof to succeed to the interest of the Landlord under this Lease.
27.6 PARKING. Landlord shall allocate to Tenant the number of
non-exclusive Parking Spaces indicated in Article 1. Landlord may, pursuant to
Section 15.1, establish Rules and Regulations relative to all parking areas
serving Building tenants and may further engage the services of an independent
contractor to administer and control access to said parking areas. Landlord or
said independent contractor shall impose separate charges for use of said
parking areas, and such charges shall be payable by Tenant as Additional Rent
with respect to Tenant's Parking Spaces. As of the Term Commencement Date the
monthly charge for each Parking Space shall be One Hundred Twenty-five Dollars
($125). Thereafter, the monthly charge shall be as from time to time established
by Landlord or said independent contractor as the then prevailing monthly
parking charge for the Building. Tenant acknowledges that Landlord has informed
Tenant that Landlord intends to allocate in its tenant leases up to one hundred
twenty-five percent (125%) of the actual parking spaces servicing the Building.
It is further acknowledged and agreed that as a consequence of such
over-allocation of parking spaces there may occasionally occur instances in
which the number of parking spaces actually available to Tenant shall be less
than the
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Parking Spaces to which Tenant is entitled under this Lease. Landlord shall
incur no liability to Tenant as a consequence of such over-allocation of parking
spaces.
27.7 NOTICE OF LEASE. Neither party shall record this Lease in any
Registry of Deeds or Registry District; provided, however that the parties
hereto shall execute and deliver a recordable Notice of Lease in the form
prescribed by Chapter 183, Section 4 of the Massachusetts General Laws (the
"Notice of Lease") for recording by Tenant, at its option, with the Middlesex
South Registry of Deeds.
27.8 FINANCIAL STATEMENTS. If requested by Landlord, Tenant shall furnish
to Landlord promptly after they are available to Tenant copies of Tenant's
annual financial statements (audited, if available) and unaudited quarterly
financial statements and such other financial statements as Tenant shall furnish
from time to time to any lender and/or equity holder of Tenant. It is understood
and agreed that Landlord may furnish copies of any and all of such financial
statements to one or more of its mortgagees.
27.9 SECURITY DEPOSIT. Landlord acknowledges that it has received from
Tenant the sum of Eighty Thousand Dollars ($80,000), as security for the payment
of rents and the performance and observance of the agreements and conditions in
this Lease contained on the part of Tenant to be performed and observed. In the
event of any default or defaults in such payment, performance or observance,
Landlord may apply said sum or any part thereof towards the curing of any such
default or defaults and/or towards compensating Landlord for any loss or damage
arising from any such default or defaults. Commencing on the first day of the
twenty-fifth (25th) month of the Term of this Lease and continuing on the first
day of each month thereafter until the balance of the security deposited has
been refunded in full, Landlord shall remit to Tenant on a monthly basis the
lesser of $4,000 or the then remaining balance of the security deposit. It is
understood and agreed that Landlord shall always have the right to apply the
then remaining balance of the security deposit, or any part thereof, in the
event of any such default or defaults (beyond any applicable curative period),
without prejudice to any other remedy or remedies which Landlord may have, or
Landlord may pursue any other such remedy or remedies in lieu of applying the
security deposit or any part thereof. No interest shall be payable on the
security deposit or any part thereof. If Landlord shall apply any portion of the
security deposit as aforesaid, Tenant shall upon demand pay to Landlord such
amount as shall be required to restore the security deposit to the aforesaid
$80,000. Whenever the holder of Landlord's interest in this Lease, whether it be
the Landlord named in this Lease or any transferee of said Landlord, immediate
or remote, shall transfer its interest in this Lease, said holder shall turn
over to its transferee the then balance of the security deposit, and thereafter
following such tranferee's acknowledgment in writing to Tenant of receit of the
then remaining security deposit and such transferee's agreement to apply and/or
return said remaining security deposit in accordance with the provisions of this
Lease, such holder shall be released from any and all liability to Tenant with
respect to said sum or its application or return, it being understood that
Tenant shall thereafter look only to such transferee with respect to said sum,
its application and return. The holder of any mortgage upon property which
includes the Demised Premises shall never be responsible to Tenant for said sum
or its application or return unless said sum shall actually have been received
in hand by such holder.
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27.10 USE OF CONFERENCE CENTER. So long as the conference center located
on the ground floor of Xxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx shall be used
as a meeting room for tenants of the Building and said building, Tenant shall be
entitled during the Term of this Lease at no cost to Tenant to use, on a
non-exclusive basis, said conference center, together with other tenants of the
Building and said building, as a meeting room and conference center, all in
accordance with the reasonable rules and regulations (including reservation
rights) established from time to time governing such use.
IN WITNESS WHEREOF, Landlord and Tenant have caused this instrument to be
executed under seal, all as of the day and year first above written.
RIVERFRONT OFFICE PARK JOINT VENTURE
By: RIVERFRONT OFFICE PARK ASSOCIATES
By: DARVEL REALTY TRUST
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx, Vice President
INTERNATIONAL INTEGRATION INCORPORATED
(I-CUBE)
By:
-----------------------------------
Xxxxxx Xxxxx, President
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EXHIBIT A
[GRAPHIC OMITTED]
000 XXXX XXXXXX
XXXXXXXXX, XX 00000
TENANT: I Cube DATE: 07/14/95
15th FLOOR KEY PLAN
42
EXHIBIT B
DESCRIPTION OF LAND
A certain parcel of land in the City of Cambridge, Middlesex County,
Massachusetts, bounded and described as follows:
Beginning at a point on the northerly line of Main Street at land now or
formerly of Technology Realty Trust, and thence running;
N 05(degrees) 59'48"E for 105.66 feet along said Trust land to a point;
thence running
N 85(degrees) 08'23"W for 90.03 feet along said Trust land to land now or
formerly of The Badger Company, Inc., thence running
N 05(degrees) 59'19"E for 120.64 feet long said Badger land to a point,
and continuing
N 16' 13'43"E for 46.32 feet along said Badger land to a point; thence
running
N 72(degrees) 07'10"W for 365.41 feet along said Badger land to a point in
the southeasterly line of Third Street; thence running
N 30(degrees) 00'44"E for 40.91 feet along Third Street to a point at land
of Commonwealth Gas Company; thence running
S 71(degrees) 46'10"E for 467.40 feet along said Commonwealth Gas Company
land to a point, thence continuing
S 73(degrees) 39'44"E for 31.42 feet along said Commonwealth Gas Company
land to a corner; thence running
S 16' 20'16"W for 82.21 feet on a line across the Broad Canal to the
southerly side thereof; thence running
SOUTHEASTERLY along the Broad Canal by the following courses and
distances: S 71(degrees) 26'21"E for 97.75 feet; S 72(degrees) 53'13"E for 74.12
feet; and S 76(degrees) 18'57"E for 50.44 feet to a point; thence running
S 05(degrees) 59'48"W for 154.28 feet to a point in the northerly line of
Main Street; thence running
N 84(degrees) 07'40"W for 268.33 feet along Main Street to the point of
beginning.
Said parcel is shown as Lot 1 on a "Subdivision Plan of Land in Cambridge,
Mass. (Middlesex County)", dated April 24, 1981, and revised September 4, 1981,
drawn by Boston Survey Consultants, and prepared for Darvel Realty Trust,
recorded with Middlesex Southern District Registry of Deeds in Book 14412, Page
199.
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EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the
premises demised to any tenant or occupant.
2. No awnings or other projections shall be attached to the outside walls
or windows of the Building without the prior consent of Landlord. No curtains,
blinds, shades, or screens shall be attached or hung in, or used in connection
with, any window or door of the premises demised to any tenant or occupant,
without the prior consent of Landlord. Such awnings, projections, curtains,
blinds, shades, screens, or other fixtures must be of a quality type, design and
color, and attached in a manner, approved by Landlord.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside of
the premises demised to any tenant or occupant or of the Building without the
prior written consent of Landlord. Interior signs on doors and directory tables,
if any, shall be of a size, color and style approved by Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed, nor shall any bottles, parcels, or
other articles be placed on or stored upon any window xxxxx.
5. No show cases or other articles of any kind shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in the halls,
corridors, vestibules or other parts of the Building.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein.
7. No tenant or occupant shall xxxx, paint, drill into, or in any way
deface any part of the Building or the premises demised to such tenant or
occupant. No boring, cutting or stringing of wires shall be permitted, except
with the prior consent of the Landlord, and as Landlord may direct. No tenant or
occupant shall install any resilient tile or similar floor covering in the
premises demised to such tenant or occupant except in manner approved by
Landlord.
8. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the premises demised to any tenant. Bicycles may be stored in
racks, if any, furnished for such purpose by Landlord in a common area of the
Building. No cooking shall be done or
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permitted in the Building by any tenant without the approval of Landlord. No
tenant shall cause or permit any unusual or objectionable odors to emanate from
the premises demised to such tenant.
9. Without the prior consent of Landlord, no space in the Building shall
be used for manufacturing, or for the sale of merchandise, goods or property of
any kind at auction.
10. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises, whether by the use of any musical
instrument, radio, television set or other audio device, unmusical noise,
whistling, singing, or in any other way. Nothing shall be thrown out of any
doors or windows.
11. Each tenant must, upon the termination of its tenancy, restore to
Landlord all keys, either furnished to, or otherwise procured by, such tenant,
including without limitation, all parking pass keys, Building keys, office keys
and keys to storage areas and toilet rooms.
12. All removals from the Building, or the carrying in or out of the
Building or the premises demised to any tenant, of any safes, freight,
furniture, or bulky matter of any description must take place at such time and
in such manner as Landlord or its agents may determine, from time to time.
Landlord reserves the right to inspect all freight to be brought into the
Building and to exclude from the Building all freight which violates any of the
Building Rules or the provisions of such tenant's lease.
13. No tenant shall use or occupy, or permit any portion of the premises
demised to such tenant to be used or occupied, as an office for a public
stenographer or typist, or to a xxxxxx or manicure shop, or as an employment
bureau. No tenant or occupant shall engage or pay any employees in the Building,
except those actually working for such tenant or occupant in the Building, nor
advertise for laborers giving an address at the Building.
14. No tenant or occupant shall purchase spring water, ice, food,
beverage, lighting maintenance, cleaning towels or other like service, from any
company or person not approved by Landlord, such approval not unreasonably to be
withheld.
15. Landlord shall have the right to prohibit any advertising by any
tenant or occupant which, in Landlord's opinion, tends to impair the reputation
of the Building or its desirability as a building for offices, and upon notice
from Landlord, such tenant or occupant shall refrain from or discontinue such
advertising.
16. Landlord reserves the right to exclude from the Building, between the
hours of 6:00 p.m. and 8:00 a.m. on Business Days and otherwise at all hours,
all persons who do not present a pass to the building signed by the Landlord.
Landlord will furnish passes to persons for whom any tenant requests such
passes. Each tenant shall be responsible for all persons for whom it requests
such passes and shall be liable to Landlord for all wrongful acts of such
persons.
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17. Each tenant, before closing and leaving the premises demised to such
tenant at any time, shall see that all entrance doors are locked and windows
closed.
18. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Landlord's agents, contractors, and
employees while performing janitorial or other cleaning services and making
repairs or alterations in said premises.
19. No premises shall be used, or permitted to be used, for lodging or
sleeping, or for any immoral or illegal purpose.
20. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance, except those equipped with rubber tires, rubber side guards and such
other safeguards as Landlord may require.
21. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
22. If the premises demised to any tenant become infested with vermin,
such tenant, at its sole cost and expense, shall cause its premises to be
exterminated from time to time, to the satisfaction of Landlord and shall employ
such exterminators therefor as shall be approved by Landlord.
23. No premises shall be used, or permitted to be used, at any time,
without the prior approval of Landlord, as a store for the sale or display of
goods, wares or merchandise of any kind, or as a restaurant, shop, booth,
bootblack or other stand, or for the conduct of any business or occupation which
predominantly involves direct patronage of the general public in the premises
demised to such tenant, or for manufacturing or for other similar purposes.
24. No tenant shall move, or permit to be moved, into or out of the
Building or the premises demised to such tenant, any heavy or bulky matter,
without the specific prior written approval of Landlord. If any such matter
requires special handing, only a person holding a Master Rigger's License shall
be employed to perform such special handling. No tenant shall place, or permit
to be placed on any part of the floor or floors of the premises demised to such
tenant, a load exceeding the floor load per square foot which such floor was
designed to carry and which is allowed by law. Landlord reserves the right to
prescribe the weight and position of safes and other heavy matter, which must be
placed so as to distribute the weight.
25. The requirements of tenants will be attended to only upon application
at the office of the Building. Building employees shall not be required to
perform, and shall not be requested by any tenant or occupant to perform any
work outside of their regular duties, unless under specific instructions from
the office of the managing agent of the Building.
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EXHIBIT E
AGREEMENT OF SUBORDINATION
NON-DISTURBANCE AND ATTORNMENT
THIS AGREEMENT made as of this 14th day of July, 1995, by and among DARVEL
REALTY TRUST, a Massachusetts business trust having a principal place of
business at Xxx Xxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxxxx (hereinafter called "Ground
Lessor"), INTERNATIONAL INTEGRATION INCORPORATED (I-CUBE), a Massachusetts
corporation (hereinafter called "Tenant"), and TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York corporation, having its principal office and
post office address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
called "Teachers");
WITNESSETH
WHEREAS, Ground Lessor is the owner in fee simple of those certain
premises situate, lying and being in the City of Cambridge, County of Middlesex,
Commonwealth of Massachusetts as more particularly described in Exhibit A
attached hereto (the "Demised Premises"); and
WHEREAS, under the terms of a certain lease dated September 23, 1981,
notice of which is recorded with the Middlesex South Registry in Book 14451,
Page 245 (the "Ground Lease"), Ground Lessor did lease, let and demise the
Demised Premises to Riverfront Office Park Joint Venture (hereinafter called
"Landlord") upon the terms and conditions therein set forth;
WHEREAS, Teachers is the owner and holder of a certain promissory note
secured by a Security Agreement and Mortgage Deed (the "Mortgage"), constituting
a first lien upon the leasehold estate created by the Ground Lease;
WHEREAS, under the terms of a certain Agreement of Lease dated as of July
14, 1995 (the "Sublease"), Landlord did lease, let and demise to Tenant, subject
to the Ground Lease, a portion of the Demised Premises as therein more
particularly described;
WHEREAS, the parties hereto desire to establish additional rights of quiet
and peaceful possession for the benefit of Tenant under the Sublease and further
to define the terms, covenants and conditions precedent for such additional
rights.
NOW, THEREFORE, in consideration of the premises and of the sum of One
($1.00) Dollar and other good and valuable consideration, each to the other in
hand paid, it is hereby mutually covenanted and agreed as follows:
1. Ground Lessor consents to and approves the Sublease.
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47
2. In the event of the cancellation or termination of the Ground Lease
or of the surrender thereof, whether voluntary, involuntary or by
operation of law, prior to the expiration date of the Sublease,
including any extensions and renewals of the Sublease now provided
thereunder, and subject to the observance and performance by Tenant,
within such grace periods as may be applicable under the Sublease,
of all of the terms, covenants and conditions of the Sublease on the
part of Tenant to be observed and performed, Ground Lessor does
hereby covenant and warrant as follows;
(a) The quiet and peaceful possession of Tenant under the
Sublease;
(b) That the Sublease shall continue in full force and effect and
Ground Lessor shall recognize the Sublease and the Tenant's
rights thereunder and will thereby establish direct privity of
estate and contract as between Ground Lessor and Tenant, with
the same force and effect and with the same relative priority
in time and right as though the Sublease were originally made
directly from Ground Lessor in favor of Tenant, but not in
respect of any amendment to the Sublease not previously
approved in writing by Ground Lessor.
3. That in the event of the cancellation or termination of the Ground
Lease or of the surrender thereof, whether voluntary, involuntary or
by operation of law, prior to the expiration date of the Sublease,
including any extensions and renewals of the Sublease now provided
thereunder, Tenant hereby covenants and agrees to make full and
complete attornment to Ground Lessor, for the balance of the term of
the Sublease, including any extensions and renewals thereof, now
provided thereunder, upon the same terms, covenants and conditions
as therein provided, subject, however, in all events to the terms,
conditions and provisions of this Agreement, so as to establish
direct privity of estate and contract as between Ground Lessor and
Tenant and with the same force and effect and relative priority in
time and right as though the Sublease were originally made directly
from Ground Lessor to Tenant, and Tenant will thereafter make all
rent payments thereafter directly to Ground Lessor.
4. That Teachers and Tenant do hereby covenant and agree that the
Mortgage shall be and the same is hereby made SUBORDINATE to the
Sublease and to the recognition and attornment agreements provided
for in Paragraphs 2 and 3 hereof with the same force and effect as
if the Sublease had been executed, delivered and recorded and the
said recognition and attornment agreements aforesaid had been
effected in each case prior to the execution, delivery and recording
of the Mortgage,
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48
EXCEPT, HOWEVER, that this Subordination shall not affect nor be
applicable to and does hereby expressly exclude
(a) The prior right and claim under and the prior lien of the
Mortgage in, to and upon any award or other compensation
heretofore or hereafter to be made for any taking by eminent
domain of any party of the Demised Premises, and as to the
right of disposition thereof in accordance with the provisions
of the Mortgage,
(b) The prior right and claim under and the prior lien of the
Mortgage, in, to and upon any proceeds payable under all
policies of fire and rent insurance upon the Demised Premises
and as to the right of disposition thereof in accordance with
the terms of the Mortgage, and
(c) Any lien, right, power or interest, if any, which may have
arisen or intervened in the period between the recording of
the Mortgage and the execution of the Sublease or the
effective date of the recognition and attornment agreements
aforesaid, whichever is later, or any lien or judgment which
may arise at any time under the terms of this Agreement.
5. That the terms, covenants and conditions hereof shall inure to the
benefit of and be binding upon the respective parties hereto, their
respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this writing to be
signed, sealed and delivered in their respective names and behalf, and, if a
corporation, its officers duly authorized, the day and year first above written.
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA
By: /s/ [Illegible]
------------------------------
Vice President
DARVEL REALTY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President and a Trustee
INTERNATIONAL INTEGRATION
INCORPORATED (I-CUBE)
By: /s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx, President
7/12/95 3
00
XXXXX XX XXX XXXX
Xxx Xxxx, ss July __, 1995
Then personally appeared the above named _________________ and
acknowledged the foregoing instrument to be his free act and deed and the free
act and deed of Teachers Insurance and Annuity Association of America, before
me.
_____________________________________
Notary Public
My commission expires:_______________
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss July __, 1995
Then personally appeared the above named Xxxxxxx X. Xxxxxxxx, Vice
President and a Trustee, and acknowledged the foregoing instrument to be his
free act and deed and the free act and deed of Darvel Realty Trust, before me.
_____________________________________
Notary Public
My commission expires:_______________
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss July __, 1995
Then personally appeared the above named Xxxxxx Xxxxx, President of
International Integration Incorporated (I-Cube), and acknowledged the foregoing
instrument to be his free act and deed and the free act and deed of
International Integration Incorporated (I-Cube), before me.
_____________________________________
Notary Public
My commission expires:_______________
7/12/95 4
50
EXHIBIT A
DESCRIPTION OF LAND
A certain parcel of land in the City of Cambridge, Middlesex County,
Massachusetts, bounded and described as follows:
Beginning at a point on the northerly line of Main Street at land now or
formerly of Technology Realty Trust, and thence running;
N 05(degrees) 59'48"E for 105.66 feet along said Trust land to a point;
thence running
N 85(degrees) 08'23"W for 90.03 feet along said Trust land to land now or
formerly of The Badger Company, Inc., thence running
N 05(degrees) 59'19"E for 120.64 feet long said Badger land to a point,
and continuing
N 16' 13'43"E for 46.32 feet along said Badger land to a point; thence
running
N 72(degrees) 07'10"W for 365.41 feet along said Badger land to a point in
the southeasterly line of Third Street; thence running
N 30(degrees) 00'44"E for 40.91 feet along Third Street to a point at land
of Commonwealth Gas Company; thence running
S 71(degrees) 46'10"E for 467.40 feet along said Commonwealth Gas Company
land to a point, thence continuing
S 73(degrees) 39'44"E for 31.42 feet along said Commonwealth Gas Company
land to a corner; thence running
S 16' 20'16"W for 82.21 feet on a line across the Broad Canal to the
southerly side thereof; thence running
SOUTHEASTERLY along the Broad Canal by the following courses and
distances: S 71(degrees) 26'21"E for 97.75 feet; S 72(degrees) 53'13"E for 74.12
feet; and S 76(degrees) 18'57"E for 50.44 feet to a point; thence running
S 05(degrees) 59'48"W for 154.28 feet to a point in the northerly line of
Main Street; thence running
N 84(degrees) 07'40"W for 268.33 feet along Main Street to the point of
beginning.
Said parcel is shown as Lot 1 on a "Subdivision Plan of Land in Cambridge,
Mass. (Middlesex County)", dated April 24, 1981, and revised September 4, 1981,
drawn by Boston Survey Consultants, and prepared for Darvel Realty Trust,
recorded with Middlesex Southern District Registry of Deeds in Book 14412, Page
199.
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