Exhibit 10.20
PARK SQUARE BUILDING COMMERCIAL LEASE
THIS INSTRUMENT IS A LEASE, dated as of March 3, 2000, in which The LESSOR
and LESSEE are the parties hereinafter named, and which relates to space
in the building (the "Building") located at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. The parties to this instrument hereby agree with each
other as follows:
1. BASIC LEASE
PROVISIONS: The following set forth basic data and, where appropriate,
constitute definitions of the terms hereinafter listed.
A. BASIC DATA.
LESSOR: OMV Associates Limited Partnership
LESSOR'S Address: c/o Capital Properties Management,
Inc., 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, XX 00000
LESSEE: XxxxxXxxxxxxx.xxx, LLC a Massachusetts limited
liability corporation
LESSEE'S Original Address: 000 Xxxxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxx, XX 00000
LESSEE'S Notice Address (Section 20): The Premises
Basic Rent: $1,082,002.50/year $42.75/psf
As the same may be adjusted and/or abated in
accordance with the terms of this lease.
Premises Rentable Area: Agreed to be 25,310 square feet
located on the fifth floor of the Building.
Permitted Uses: General office use.
Escalation Factor: 5.53%, as computed in accordance with
the Escalation Factor Computation.
Scheduled Completion Period: As defined in Section 26B.
Initial Term: Five years commencing on the Commencement
Date and expiring at the close of the day immediately
preceding the fifth anniversary of the Commencement Date,
except that if the Commencement Date shall be other than the
first day of a calendar month, the expiration of the Initial
Term shall be at the close of the day on the last day of the
calendar month on which such anniversary shall fall.
Temporary Tenancy: As described in Section 36.
Temporary Premises: Agreed to be 14,139 rentable
square feet located on the third floor of the building,
8,928 rentable square feet on the south side of the
corridor (Area A) and 5,211 rentable square feet on the
north side of the corridor (Area B) as shown on Exhibit
D attached hereto.
Temporary Premises Basic Rent:
$300,453.75/yr $25,037.82/mo $21.25/sf
Temporary Premises Escalation Factor: None.
Security Deposit: $303,720 in cash or letter of credit,
as that amount may be adjusted in accordance with Section 5
below.
Base Operating Expenses: The actual Operating Expenses
for the calendar year commencing January 1, 2000 and ending
December 31, 2000.
Base Taxes: The actual Taxes for the Tax Year commencing
July 1, 2000 and ending June 30, 2001.
Electricity Cost: $1.50/sf per year payable to LESSOR.
Broker: CB Xxxxxxx Xxxxx / Whittier Partners and
Insignia/ESG
B. ADDITIONAL DEFINITIONS.
Agent: Capital Properties Management, Inc., 00 Xx. Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Business Days: 8:00 a.m. - 6:00 p.m. Monday through
Friday and Saturday 9:00 a.m. through 1 p.m. except New Year's
Day, President's Day, Patriot's Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans' Day,
Thanksgiving Day, Christmas Day (and the following Monday when
any such day occurs on Sunday). Unless specifically referred
to herein as Business Days, all references in this Lease to
"days" shall mean calendar days.
Commencement Date: Thirty (30) days after the later of
a) the Premises is available for LESSOR to commence LESSOR'S
Work, b) the issuance of a building permit and c) commencement
by LESSOR of LESSOR'S Work.
Escalation Factor Computation: Premises Rentable Area
divided by 100% of building rentable area (445,765 square
feet).
Initial Public Liability Insurance: $1,000,000.00 per
occurrence (combined single limit) for property damage,
personal injury or death.
LESSOR'S Work: As defined in Section 26.
LESSOR'S Contribution: $303,720
LESSEE'S Contribution: As defined in Section 26
Final Plans: As defined in Section 26.
Premises: A portion of the Building as shown on Exhibit
A attached hereto.
Extended Term: As defined in Section 35.
First Offer Space: As defined in Section 37.
2. PREMISES A portion of the building owned by LESSOR consisting of
approximately
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25,310 SQUARE FEET OF RENTABLE AREA ON THE FIFTH FLOOR OF THE
BUILDING AND SHOWN AS SUITE 500 on the plan attached hereto as
"Exhibit A" (the "Premises") together with the right to use in
common, with others entitled thereto, the hallways, stairways,
and elevators, necessary for access to said Premises, and
lavatories nearest thereto.
3. TERM The term of this lease shall be for five years commencing on
the Commencement Date, or earlier pursuant to Section 36 of
this lease and ending sixty months after the Commencement
Date.
4. BASIC RENT The LESSEE shall pay to the LESSOR rent at the rate described
in Section 1 of this Lease, payable in advance on the first
day of each month commencing on the Commencement Date or prior
in accordance with Section 36, without deduction or set off.
5. SECURITY Upon the execution of this lease, the LESSEE shall pay to the
DEPOSIT LESSOR a security deposit in cash or a letter of credit in the
amount of $303,720.00. The Security Deposit shall be
maintained in said amount and held without interest as a
security for LESSEE'S performance as therein provided and
refunded to the LESSEE at the end of this Lease subject to the
LESSEE'S satisfactory compliance with the condition thereof.
If LESSEE is not in default during the first twelve months of
the term, the security deposit shall be reduced by one months
rent to $253,100.00. If LESSEE is not in default during the
first twenty four months of the term the security deposit
shall be reduced to $202,480.00. If LESSEE is not in default
during the first thirty six months of the term the security
deposit shall be reduced to $151,860.00 and this shall remain
as security deposit for the balance of the Term and for any
Extended Term.
6. ADDITIONAL A. TAX. If, in any tax year, the real estate taxes on the land
RENT and buildings, of which the Premises are a part, are in excess
of the amount of the Base Taxes, as finally abated
(hereinafter called the "Base Year"), LESSEE will pay to
LESSOR, as additional rent hereunder, when and as designated
by notice in writing by LESSOR, the amount of the excess
multiplied by the Escalation Factor. If the LESSOR obtains an
abatement of any such excess real estate tax, a proportionate
share of such abatement, less the reasonable fees and costs
incurred in obtaining the same, if any, shall be refunded to
the LESSEE.
B. OPERATING. If, in any calendar year, the Operating Expenses
for the Property of which the Premises are a part, are in
excess of the amount of the Base Operating Expenses, LESSEE
will pay to LESSOR, as additional rent hereunder, within
thirty (30) days of receiving notice in writing by LESSOR, the
amount of the excess multiplied by the Escalation Factor.
Operating Expenses are defined for the purposes of this
agreement as: The aggregate costs or expenses reasonably
incurred by LESSOR with respect to the operation,
administration, cleaning, repair, maintenance and management
of the premises including, without limitation, those items
enumerated in "Exhibit C" attached hereto and excluding those
items shown as exclusions on Exhibit C. Any such accounting by
LESSOR shall be binding and conclusive upon LESSEE unless
within thirty (30) days after that giving by LESSOR of such
accounting, LESSEE shall notify LESSOR that LESSEE disputes
the correctness of such accounting, specifying the particular
respects in which the accounting is claimed to be incorrect.
C. PAYMENT. At LESSOR'S option, payment of Additional Rent
shall be on a monthly basis based on LESSOR'S good faith
estimate of the Tax and Operating Expenses for the following
year.
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D. AUDIT. In the event LESSEE elects to audit LESSOR'S
statement of Operating Expenses or statement of Taxes in
accordance with this clause, such audit must be (i) conducted
by an independent nationally recognized accounting firm that
is not being compensated by LESSEE on a contingency fee basis,
and (ii) completed within sixty (60) days following LESSEE'S
notice disputing the correctness of the statement of Operating
Expenses or statement of Taxes. Furthermore, all of the
information obtained through the LESSEE'S audit with respect
to financial matters (including, without limitation, costs,
expenses, income) and any other matters pertaining to the
LESSOR and/or the Property as well as any compromise,
settlement, or adjustment reached between LESSOR and LESSEE
relative to the results of the audit shall be held in strict
confidence by LESSEE and its officers, agents, and employees;
and LESSEE shall cause its auditor and any of its officers,
agents, and employees to be similarly bound. As a condition
precedent to LESSEE'S exercise of its right to audit, LESSEE
must deliver to LESSOR a signed confidentiality agreement from
the auditor (in form reasonably acceptable to LESSOR) reached
between LESSOR and LESSEE shall be held in strict confidence
and shall not be revealed in any manner to any person except
upon the prior written consent of LESSOR. LESSEE understands
and agrees that this provision is of material importance to
the LESSOR and that any violation of the terms of this
provision shall result in immediate and irreparable harm to
the LESSOR. LESSOR shall have all rights allowed by law or
equity if LESSEE, its officers, agents, or employees and/or
the auditor violate the terms of this provision, including,
without limitation, the right to terminate LESSEE'S right to
audit.
7. UTILITIES The LESSEE shall pay, as they become due, all bills for
electricity and other utilities that are furnished to the
Premises and presently separately metered. The LESSOR agrees
to provide all other utility service and to furnish reasonably
hot and cold water and reasonable heat and air conditioning to
the Premises, the hallways, stairways, elevators, and
lavatories during normal building business hours on regular
business days of the heating and air conditioning seasons of
each year, to furnish elevator service and to light
passageways and stairways during business hours, and to
furnish such cleaning service as is customary in similar
buildings in Boston, Massachusetts, all subject to
interruption due to any accident, to the making of repairs,
alterations, or improvements, to labor difficulties, to
inability to obtain fuel, electricity, service, or supplies
from the sources from which they are usually obtained for said
building, or to any cause beyond the LESSOR'S control.
LESSOR shall have no obligation to provide utilities or
equipment other than the utilities and equipment within the
premises as of the Commencement Date of this lease. In the
event LESSEE requires additional utilities or equipment, the
installation and maintenance thereof shall be the LESSEE'S
sole obligation, provided that such installation shall be
subject to the written consent of the LESSOR, not to be
unreasonably withheld.
8. USE OF The LESSEE agrees to use the Premises in a manner consistent
LEASED with the nature of the building and consistent with the other
PREMISES LESSEES in the building. The LESSEE shall use the Premises
only for the purpose of listed in Section 1 of this Lease and
LESSOR represents that such use is a lawful one.
9. COMPLIANCE The LESSEE acknowledges that no trade or occupation shall be
WITH LAWS conducted in the Premises or use made thereof which will be
unlawful, improper, noisy or offensive, or contrary to any law
or any municipal by-law or ordinance in force in the city or
town in which the Premises are situated. LESSEE agrees to
comply with all such laws.
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LESSOR makes no representation that uses contemplated by the
LESSEE are permitted by law.
10. FIRE The LESSEE shall not permit any use of the Premises which will
INSURANCE make voidable any insurance on the property of which the
Premises are a part, or on the contents of said property or
which shall be contrary to any law or regulation from time to
time established by the New England Fire Insurance Rating
Association, or any similar body, succeeding to its powers.
Nor shall LESSEE cause or permit the storage, use, generation,
release or disposition of any hazardous materials in, on or
about the property by LESSEE, its agents, employees or
contractors, other than small amounts of cleaning products and
the like used in the ordinary course of business in compliance
with all applicable laws. LESSEE will not permit the Premises
to be used or operated in a manner that may cause the Premises
or the property (the "Property") as defined in Exhibit B
attached hereto to be contaminated by any hazardous materials
in violation of any hazardous materials laws. LESSEE will
immediately advise LESSOR in writing of (1) any and all
enforcement, cleanup, remedial, removal, or other governmental
or regulatory actions instituted, completed, or threatened
pursuant to any hazardous materials laws relating to any
hazardous materials affecting the Premises; and (2) all claims
made or threatened by any third party against LESSEE, LESSOR,
the Premises or the Property relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from any
hazardous materials on or about the Premises. Without LESSOR'S
prior written consent, LESSEE will not take any remedial
action or enter into any agreement or settlements in response
to the presence of any hazardous materials in, on, or about
the Premises.
LESSEE will be solely responsible for and will defend,
indemnify and hold LESSOR, its agents, and employees harmless
from and against all claims, costs, expenses, damages, and
liabilities, including employees harmless from and against all
claims, costs expenses, damages and liabilities, including
attorneys' fees and costs, arising out of or in connection
with LESSEE'S breach of its obligations in this Section 10.
LESSEE will be solely responsible for and will defend,
indemnify, and hold LESSOR, its agents, and employees harmless
from and against any and all claims, costs, and liabilities,
including attorneys' fees and costs, arising out of or in
connection with the removal, cleanup and restoration work and
materials necessary to return the Premises and any other
property of whatever nature located on the Property to their
condition existing prior to the appearance of LESSEE'S
hazardous materials on the Premises. LESSEE'S obligations
under this Section 10 will survive the expiration or other
termination of this Lease.
The LESSEE shall not use the Premises in any way which will
cause an extra insurance premium. LESSOR confirms that
LESSEE'S use of the Premises as general office space shall not
cause an extra insurance premium. However, in the event that
LESSEE does so, the LESSEE shall, on demand, reimburse the
LESSOR, and all other lessees, all extra insurance premiums
caused by the LESSEE'S use of the Premises.
11. MAINTEN- The LESSEE agrees to maintain the Premises, in good condition,
ANCE OBLI- reasonable wear and tear and damage by fire and other casualty
GATIONS only excepted, and whenever necessary, to replace plate glass
and other glass therein.
A. LESSEE'S OBLIGATIONS. The Premises are now in good order
and the glass whole. The LESSEE shall not permit the Premises
to be overloaded, damaged, stripped, or defaced, nor suffer
any waste. LESSEE shall obtain written consent of LESSOR
before erecting any sign on the Premises, provided LESSEE
shall not need any further consent of LESSOR to erect the
signs listed on Exhibit F. The LESSEE
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shall keep and maintain the Premises in good order and repair
at its own expense. The LESSOR shall at LESSEE'S expense and
upon LESSEE'S request, furnish and install all replacement
lamps, lighting tubes, bulbs and ballast's which may be
required in the Premises during the terms hereof.
X. XXXXXX'X OBLIGATIONS. The LESSOR agrees to maintain the
common areas and the structure and building systems of the
building in the same condition as it is at the commencement of
the Term or as it may be put in during the Term of this Lease,
reasonable wear and tear, damage by fire and other casualty
only excepted, unless such maintenance is required because of
the LESSEE or those for whose conduct the LESSEE is legally
responsible.
LESSOR shall never be liable for any failure to make repairs
in the Premises unless LESSEE has given notice to LESSOR of
the need to make such repairs and LESSOR has failed to
commence to make such repairs within a reasonable time after
receipt of such notice, or fails to proceed with reasonable
diligence to complete such repairs.
12. ADDITIONS & The LESSEE shall not make structural alterations or additions
ALTERATIONS to the Premises or the building's systems, but may make
non-structural alterations provided the LESSOR consents
thereto in writing, which consent shall not be unreasonably
withheld or delayed. LESSEE may make non-structural
alterations which cost less than $20,000 without LESSOR'S
consent, however, LESSEE must provide notice. All such allowed
alterations shall be at LESSEE'S expense and shall be in
quality at least equal to the present construction. LESSEE
shall not permit any mechanics' liens, or similar liens, to
remain upon the Premises for labor and material furnished to
LESSEE or claimed to have been furnished to LESSEE in
connection with work of any character performed or claimed to
have been performed at the direction of LESSEE and shall cause
any such lien to be released of record forthwith without cost
to LESSOR. If such lien is not discharged within ten (10) days
after notice to LESSEE of such filing of such lien, LESSEE
shall furnish LESSOR, within such ten (10) day period,
security satisfactory to LESSOR in the amount of 150% of the
claim plus estimated costs to discharge the lien. Any
alterations or improvements made by the LESSEE shall become
the property of the LESSOR at the termination of occupancy as
provided herein.
13. ASSIGNMENT The LESSEE shall not assign or sublet the whole or any part of
& SUBLEAS- the Premises without LESSOR'S prior written consent, such
ING consent shall not be unreasonably withheld or delayed and
shall be provided within thirty (30) days of LESSEE'S request.
Notwithstanding such consent, LESSEE shall remain liable to
LESSOR for the payment of all rent and for the full
performance of the covenants and conditions of this lease. If
SUBLESSEE or ASSIGNEE is paying rent at an amount greater than
in this agreement, fifty percent (50%) of the proceeds after
expenses shall be due to LESSOR. No assignment or sublease
shall release LESSEE from, and LESSEE shall remain fully
liable for, performance of LESSEE'S obligations under the
lease. LESSEE shall not sublease or assign to a current or
prospective tenant of the Building. Prospective tenants are
those tenants who have been introduced to the Property within
thirty (30) days of the sublease or assignment proposal or any
tenant in negotiation with LESSOR. LESSEE shall not sublease
below Fair Market Value, without LESSOR'S prior written
consent. LESSEE shall not sublease or assign to any tenant
whereby the sublessee or assignees use violates the exclusive
use of any tenant at the Property.
(a) Submission of Information. If LESSEE requests LESSOR'S
consent to a specific assignment or subletting, LESSEE will
submit in writing to LESSOR (a) the name and address of the
proposed assignee or subtenant; (b) the business terms of the
proposed
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assignment or sublease; (c) reasonably satisfactory
information as to the nature and character of the business of
the proposed assignee or subtenant, and as to the nature of
its proposed use of the space; (d) banking, financial, or
other credit information reasonably and character of the
proposed assignee or subtenant; (e) the proposed form of
assignment (including lease assumption provisions) or
sublease; and (f) any other information reasonably required by
Landlord.
(b) LESSOR'S Options. In the event of LESSEE'S request for an
assignment or sublease of this Lease or of all or any part of
the Premises by LESSEE, LESSOR in addition to any rights
contained herein, shall have the following options at its
discretion:
(i) to give LESSEE written notice of LESSOR'S
intention to terminate this Lease as to all or any
portion of the Premises on the date such notice is
given or on any later date specified therein,
whereupon, on the date specified in such notice,
LESSEE'S right to possession of the Premises or
such portion of the Premise shall cease and this
Lease shall thereupon be terminated, except as to
any incomplete obligations of LESSEE; or
(ii) to re-enter and take possession of the Premises or
the part thereof subject to such transfer, and to
enforce all rights of LESSEE, in accordance with
such sublet or assignment of the Premises, or any
part thereof, as if LESSOR was the sublessor or
assignor, and to do whatever LESSEE is permitted
to do pursuant to the terms of such sublease or
assignment.
If LESSOR so elects to exercise it's rights under this Section
13(b), LESSEE may, within three (3) days of notice from
LESSOR, withdraw its request to assignment or sublease and
LESSOR shall have no further rights under this Section in
regard to that specific request to assign or sublease.
(c) Permitted Transfer. LESSOR consents to an assignment of
this Lease or sublease of all or part of the Premises to a
wholly-owned subsidiary of LESSEE or the parent of LESSEE or
to any corporation into or with which LESSEE may be merged,
consolidated or purchases all of LESSEE'S assets; provided
that (a) LESSEE promptly provides LESSOR with a fully executed
copy of such assignment or sublease; (b) LESSEE is not
released from liability under this Lease and (c) the assignee
assumes in writing all of the obligations of LESSEE under this
Lease.
14. SUBORDINA- This Lease shall be subject and subordinate to any and all
TION mortgages, deeds of trust and other instruments in the nature
of a mortgage, now or at any time hereafter, a lien or liens
on the property of which the Premises are a part and the
LESSEE shall, when requested, promptly execute and deliver
such written instruments as shall be necessary to show the
subordination of this lease to said mortgages, deeds of trust
or other such instruments in the nature of a mortgage. In the
event that LESSEE fails or refuses to execute same, LESSOR may
do so as LESSEE'S Attorney-in-Fact. LESSOR shall secure a
so-called subordination and non-disturbance agreement from
LESSOR'S Mortgagee within forty-five (45) days of LESSOR's
execution of this Lease.
15. LESSOR'S The LESSOR or agents of the LESSOR may, at reasonable times
ACCESS and with reasonable notice, enter to inspect the Premises;
exhibit the Premises to prospective purchasers, lenders or
tenants; determine LESSEE'S compliance with the Lease; remove
placards and signs not approved and affixed as herein
provided, and make repairs and alterations to the Premises and
Property as LESSOR should elect to do. LESSOR shall
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use reasonable efforts to minimize interference with
operations of LESSEE'S business at the Premises.
16. INDEMNIFI- LESSEE shall save LESSOR harmless, and shall exonerate and
CATION AND indemnify LESSOR, from and against any and all claims,
LIABILITY liabilities or penalties asserted by or on behalf of any
person, firm, corporation or public authority:
(i) on account of or based upon any injury to person, or
loss of or damage to property sustained or occurring or
emanating from the Premises on account of or based upon
the act, omission, fault, negligence or misconduct of
any person except LESSOR, its agents officers or
employees;
(ii) on account of or based upon any injury to person, or
loss of or damage to property, sustained on or occurring
elsewhere (other than on the Premises) in or about the
Property (and, in particular, without limitation, the
elevators, stairways, public corridors, sidewalks,
parking areas, concourses, arcades, approaches,
areaways, roof, or other appurtenances and facilities
used in connection with the Property or the Premises)
arising out of the use or occupancy of the Property or
Premises by the LESSEE or by any person claiming by,
through or under LESSEE, except where such injury, loss
or damage was caused by the negligence, fault or
misconduct of LESSOR, its agents, officers or employees;
and in addition to and not in limitation of either of
the foregoing subdivisions (i) and (ii);
(iii) on account of or based upon (including moneys due on
account of) any work or thing whatsoever done (other
than by LESSOR or its contractors, or agents or
employees or either) on the Premises; and, in respect of
any of the foregoing, 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
LESSOR by reason of any such claim. LESSEE upon notice
from LESSOR shall at LESSEE'S expense resist or defend
such action or proceeding and employ counsel therefore
reasonably satisfactory to LESSOR, it being agreed that
such counsel as may act for insurance underwriters of
LESSEE engaged in such defense shall be deemed
satisfactory.
17. LIABILITY A. LESSEE'S Liability Insurance. The LESSEE shall maintain
INSURANCE with respect to the Premises and the Property of which the
Premises are a part commercial general liability insurance in
the amount of $1,000,000 with property damage insurance in
limits of $100,000 and Workers Compensation insurance insuring
against and satisfying LESSEE'S obligations and liabilities
under the Workers Compensation Laws of Massachusetts, in
responsible companies qualified to do business in
Massachusetts and in good standing therein insuring the LESSOR
as well as LESSEE against injury to persons or damage to
property as provided. LESSEE agrees to increase limits as
LESSOR'S mortgagee reasonably requires. The LESSEE shall
deposit with the LESSOR certificates for such insurance at or
prior to the commencement of the Term, and thereafter within
thirty (30) days prior to the expiration of any such policies.
All such insurance certificates shall provide that such
policies shall not be canceled without at least ten (10) days
prior written notice to each assured named therein.
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X. XXXXXX'X Liability Insurance. LESSOR covenants that it
shall maintain throughout the Term of this lease(i)
comprehensive general liability insurance against all claims
and demands for any injury to person or property which may be
claimed to have occurred on the Property in such amounts as
are commercially reasonable in the greater Boston,
Massachusetts area; and (ii) all risk property insurance.
18. FIRE, Should a substantial portion of the Premises, or of the
CASUALTY, property of which they are a part, be substantially damaged by
EMINENT fire or other casualty, or be taken by eminent domain, the
DOMAIN LESSOR may elect to terminate this lease. When such fire,
casualty, or taking renders the Premises substantially
unsuitable for its intended use, a just and proportionate
abatement of rent shall be made, and the LESSEE may elect to
terminate this lease if:
(a) The LESSOR fails to give written notice within thirty
(30) days of the event of its intention to restore
Premises, or
(b) The LESSOR fails to restore the Premises to a condition
substantially suitable for their intended use within
ninety (90) days of said fire, casualty or taking, as
such date may be extended ninety (90) days if LESSOR is
diligently working to restore the Premises and extended
an additional ninety (90) days for force majeure. LESSOR
reserves, and the LESSEE grants the LESSOR, all rights
which the LESSEE may have for damages or injury to the
Premises for any taking by eminent domain, except for
damage to the LESSEE'S fixtures, property, or equipment.
19. DEFAULT A) In the event that:
AND
BANKRUPTCY (i) The LESSEE shall default in the payment of any
installment of rent or other sum herein specified
and such default shall continue for five (5) days
after written notice thereof; or
(ii) The LESSEE shall default in the observance or
performance of any other of the LESSEE'S
covenants, agreements, or obligations hereunder
and such default shall not be corrected within
fifteen (15) days after written notice thereof, as
extended if LESSEE is working diligently and
continuously to cure; or
(iii) The LESSEE or any guarantor of LESSEE'S
obligations under the lease, files or is filed
against in any bankruptcy, insolvency or
reorganization petition; or
(iv) The LESSEE shall be declared bankrupt or insolvent
according to law, or, if any assignment shall be
made of LESSEE'S property for the benefit of
creditors, or
(v) Any attachment is made of the leasehold interest
outlined in this lease which is not removed within
sixty (60) days; or
(vi) A receiver is appointed to conduct LESSEE'S
business (whether or not LESSOR has re-entered the
premises) then the LESSOR shall have the right
thereafter, while such default continues, to
re-enter and take complete possession of the
Premises, to terminate this lease, and remove the
LESSEE'S effects without prejudice to any remedies
which might be otherwise used for arrears of rent
or other default. The LESSEE shall indemnify the
LESSOR against all loss of rent and additional
rent and other payments which the LESSOR may incur
by reason of such termination during the residue
of the
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term. If the LESSEE shall default, after
reasonable notice thereof; in the observance or
performance of any conditions or covenants on
LESSEE'S part to be observed or performed under or
by virtue of any of the provisions in any article
of this lease, the LESSOR, without being under any
obligation to do so and without thereby waiving
such default, may remedy such default for the
account and at the expense of the LESSEE. If the
LESSOR makes any expenditures or incurs any
obligations for the payment of money in connection
therewith, including but not limited to,
reasonable attorney's fees in instituting,
prosecuting or defending any action or proceeding,
such sums paid or obligations incurred, with
interest at the rate of 18 per cent per annum and
costs, shall be paid to the LESSOR by the LESSEE
as additional rent. Any sums not paid when due
shall bear interest at 18 per cent per annum until
paid. LESSEE shall pay an administrative fee if a
check does not clear.
B) LESSOR'S REMEDIES. If any one or more events of default
set forth above occurs, LESSOR may, at its election:
(i) Give LESSEE written notice of LESSOR'S intention
to terminate this Lease on the earliest date
permitted by law or on any later date specified in
such notice, in which case LESSEE'S right to
possession of the Premises will cease and this
Lease will be terminated, except as to LESSEE'S
liability, as if the expiration of the term fixed
in such notice were the end of the Term;
(ii) Without further demand or notice, and without
terminating this Lease, reenter and take
possession of the Premises or any part of the
Premises, repossess the same, expel LESSEE and
those claiming through or under LESSEE and remove
the effects of both or either, using such force
for such purposes as may be necessary, without
being liable for prosecution, without being deemed
guilty of any matter of trespass, and without
prejudice to any remedies for arrears of Monthly
Rent or other amounts payable under this Lease or
as a result of any preceding breach of covenants
or conditions; or
(iii) Without further demand or notice to cure any event
of default and charge LESSEE for the cost of
effecting such cure, including without limitation
reasonable attorneys' fees and interest on the
amount of 18 percent per annum, provided that
LESSOR will have no obligation to cure any such
event of default of LESSEE.
If LESSOR elects to reenter as provided in subsection (ii) or
if LESSOR takes possession pursuant to legal proceedings or
pursuant to any notice provided by law, LESSOR may, from time
to time, without terminating this Lease, relet the Premises or
any part of the Premises in LESSOR'S or LESSEE'S name, but for
the account of LESSEE, for such term or terms (which may be
greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions
and upon such other terms (which may include concessions of
free rent and alteration and repair of the Premises) as
LESSOR, in its reasonable discretion, may determine, and
LESSOR may collect and receive the rents from such reletting.
LESSOR will in no way be responsible or liable for any failure
to relet the Premises, or any part of the Premises, or for any
failure to collect any rent due upon such reletting. No such
reentry or taking possession of the Premises by LESSOR will be
construed as an election on LESSOR'S part to terminate this
Lease unless a written notice of such intention is given to
LESSEE. No written notice from LESSOR under this Section or
under a forcible or unlawful entry and detainer statute or
similar law will constitute an election by LESSOR to terminate
this Lease unless such notice specifically so states. LESSOR
reserves the right following any such reentry or reletting to
exercise its right
10
to terminate this Lease by giving LESSEE such written notice,
in which event this Lease will terminate as specified in such
notice. LESSOR shall use reasonable efforts to relet the
Premises.
20. NOTICE Any Notice from the LESSOR to the LESSEE relating to the
Premises or to the occupancy thereof, shall be in writing and
be deemed duly served, if mailed to the Notice Address in
Section 1 of this Lease, or other such address as LESSEE may,
from time to time, advise in writing, registered or certified
mail, return receipt requested, postage prepaid or by
overnight carrier, addressed to the LESSEE. Any Notice from
the LESSEE to the LESSOR relating to the Premises or to the
occupancy thereof, shall be deemed duly served, if mailed to
the LESSOR by registered or certified mail, return receipt
requested, postage prepaid or by overnight carrier, addressed
to the LESSOR at the address in Section 1 of this Lease or
such other address as the LESSOR may from time to time advise
in writing. All rent notices shall be paid and sent to the
LESSOR at its notice address or such other address as may be
designated by LESSOR. All notices shall be effective when
received or refused.
21. SURRENDER The LESSEE shall at the expiration or other termination of
this Lease remove all LESSEE'S goods and effects from the
Premises, (including, without hereby limiting the generality
of the foregoing, all signs and lettering affixed or painted
by the LESSEE, either inside or outside the Premises). LESSEE
shall deliver to the LESSOR the Premises and all keys, locks
thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the Premises, in
good condition, reasonable wear and tear and, damage by fire
or other casualty only excepted. In the event of the LESSEE'S
failure to remove any of LESSEE'S property from the Premises,
LESSOR is hereby authorized, without liability to LESSEE for
loss or damage thereto, and at the sole risk of LESSEE, to
remove and store any of the property at LESSEE'S expense, or
to retain same under LESSOR'S control or to sell at public or
private sale, without notice any or all of the property not so
removed and to apply the net proceeds of such sale to the
payment of any sum due hereunder, or to destroy such property.
The LESSEE shall restore all damage to the Premises which may
have occurred during the use of Premises or while vacating the
Premises. Any items which the LESSEE installs, which replace
items on the Premises when LESSEE took occupancy are deemed to
be LESSOR'S property.
22. BROKERAGE LESSEE warrants and represents that LESSEE has dealt with no
broker other than the broker listed in Section 1 of this lease
in connection with the consummation of this Lease and, in the
event of any brokerage claims against LESSOR predicated upon
prior dealings with LESSEE, LESSEE agrees to defend the same
and indemnify LESSOR against any such claim.
23. LESSOR'S The LESSOR is not personally liable under this
LIABILITY Lease. (a) LESSEE specifically agrees to look solely to the
LESSOR'S then equity in the property of which the Premises are
a part (and to proceeds thereof) for recovery of any judgment
from LESSOR it being specifically agreed that LESSOR (original
or successor) shall never be personally liable for any such
judgment or for the payment of any monetary obligation to
LESSEE. The provisions contained in the foregoing sentence are
not intended to, and shall not, limit any right the LESSEE
might otherwise have to obtain injunctive relief against
LESSOR or to take any action not involving the liability of
LESSOR to respond in monetary damages from LESSOR'S assets
other than from such property.
24. WAIVER Failure on the part of the LESSOR or LESSEE to complain of any
action or non-action on the part of the other, no matter how
long the same may continue, shall never be a waiver by LESSOR
or LESSEE, respectively, of its rights hereunder. Further, no
11
waiver at any time of the provisions hereof, by LESSOR or
LESSEE shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at any
subsequent time of the same provisions. The consent or
approval of LESSOR or LESSEE to, or of any action by the other
requiring such consent or approval, shall not be construed to
waive or render unnecessary LESSOR'S or LESSEE'S consent or
approval to or of any subsequent similar act by the other.
25. STATUS Recognizing that both parties may find it necessary to
REPORT establish to third parties, from time to time, the then
current status of performance hereunder, either party will,
within ten (10) days after receipt of a request therefor,
furnish a reasonable statement of the status of this Lease,
including without limitation, acknowledgments that (or the
extent to which) each party is in compliance with its
obligations under the terms of the Lease.
26. BUILDOUT Except as specifically provided herein, LESSEE shall accept
possession of Premises in "As Is" condition. Except as
specifically provided below, LESSOR has no obligation and has
made no promise to alter, remodel, improve, repair, decorate
or paint the Premises or any part of the Premises, or to pay
for such work, and LESSOR has not made any representations to
LESSEE with respect to the condition of the Premises.
A. PLANS LESSEE shall cause its architect (the "Architect") to
prepare (consistent with the building specifications
or standards) and submit to LESSOR for its approval
complete architectural plans, drawings and
specifications for all LESSOR'S Work (defined below),
including, without limitation, complete engineered
mechanical and electrical working drawings for the
premises, showing the subdivision, layout, finish and
decoration work desired by LESSEE therefore, and any
internal or external communications or special
utility facilities which will require installation of
conduits or other improvements within common areas,
all in such form and in such detail as my be required
by LESSOR. Such complete plans, drawings and
specifications are referred to herein as "Final
Plans". LESSEE shall submit the Final Plans for the
approval of LESSOR, and such final plan shall be
delivered to LESSOR no later than April 21, 2000.
Within five (5) business days after LESSOR receives
the Final Plans for approval, LESSOR shall give its
written approval of the Final Plans, or provide
LESSEE with specific written objections to the Final
Plans. If LESSOR does not respond within such five
(5) business day period, LESSOR shall be deemed to
have approved the Final Plans on the fifth business
day of such period. If LESSOR objects to the Final
Plans LESSEE and LESSOR shall meet within three (3)
business days after said objection to resolve the
objections and to deliver to Architect such
information as may be necessary to enable Architect
to cause the Final Plans to be revised consistent
with LESSOR'S objections. The day on which LESSOR
approves, or is deemed to have approved, the Final
Plans, shall be hereinafter referred to as the
"Approval Date".
B. SCHEDULE Based on the Final Plans and on or before the
Approval Date, the Architect and LESSOR'S
representatives shall reasonably agree on the number
of days within which the LESSEE Improvement Work
should be substantially complete if pursued with
commercially reasonable diligence (the "Scheduled
Completion Period").
C. WORK LESSOR shall construct the tenant improvements
("LESSOR'S Work") LESSOR shall pay an amount not to
exceed Three Hundred Three Thousand Seven Hundred
Twenty and No/100 Dollars ($303,720.00), which sum
12
of completing the space planning, working drawings,
engineering, permits, architect's fees and other fees
and LESSOR'S Work (the "LESSOR'S Contribution"), and
LESSEE shall pay for all costs of completing the
LESSOR'S Work in excess of LESSOR'S Contribution
("LESSEE'S Contribution"). LESSEE'S Contribution
shall be paid to LESSOR prior to the Commencement of
LESSOR'S Work. And, LESSEE shall provide payment for
any change orders at the time of LESSEE'S approval of
each change order.
D. LESSEE To the extent LESSEE delays in delivering the Final
DELAY Plans to LESSOR as set forth in Section A above, the
Commencement Date shall be moved up one day for each
such day of delay by LESSEE.
i) Any change by LESSEE in any of the Final Plans
after LESSEE'S approval thereof:
ii) Any other act or omission of LESSEE or its
officers, agents, servants or contractors:
iii) Any reasonably necessary displacement of any of
LESSOR'S Work from its place in LESSOR'S construction
schedule resulting from any of the causes for delay
referred to in clauses (i), (ii), or this paragraph
and the fitting of such Work back into such schedule;
then LESSEE shall, from time to time and within ten
(10) business days after demand therefor, pay to
LESSOR for each day of such delay the amount of Basic
Rent, Escalation Charges and other charges that would
have been payable hereunder and the LESSEE'S
obligation to pay Basic Rent commenced immediately
prior to such delay.
X. XXXXXX If the LESSOR'S Work is not complete by the Scheduled
DELAY Completion Date, the LESSEE shall be allowed to
remain in the Temporary Premises and pay rent on only
the Temporary Premises until such time as the
Premises are substantially complete. Substantial
completion shall be deemed to have occurred when the
Architect and LESSOR'S representative reasonably
agree that the only remaining LESSOR'S Work to be
completed are minor, so-called punch list items.
LESSEE shall have the right to remain in the
Temporary Premises until seven (7) days after
substantial completion of the LESSOR'S Work.
The delays referred to above are herein referred to
collectively and individually as "LESSEE'S Delay."
F. CONCLUSIVE-
NESS OF
PERFORM- Except to the extent to which LESSEE shall have given
ANCE LESSOR notice, not later than the end of the second
full calendar month beginning after substantial
completion of the LESSOR'S Work, of any respects in
which LESSOR has not performed LESSOR'S Work, LESSOR
shall be deemed to have completed the LESSOR'S Work
as of such substantial completion date.
27. LESSOR'S LESSOR warrants and represents that it is the owner of record
WARRANTY of the Premises and that it has authority to grant the
leasehold interest conveyed hereby.
28. SEVERABIL- To the extent any term or provision of this Lease, or the
ITY application thereof to any person or circumstance shall be
invalid or unenforceable, the remainder of this Lease,
13
or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
29. RECORDING LESSEE agrees not to record this Lease, but, if the Term of
this Lease (including any extended term) is seven (7) years or
longer, each party hereto agrees, on the request of the other,
to execute a so-called Notice of Lease in recordable form and
complying with applicable law and reasonably satisfactory to
LESSOR'S and LESSEE'S attorneys. Such document shall expressly
state that it is executed pursuant to the provisions contained
in this Lease, and is not intended to vary the terms and
conditions of this Lease.
30. HOLDING Any Holding Over by LESSEE after the expiration of the Term of
OVER this Lease shall be treated as a tenancy at sufferance at a
rate equal to one and one-half times the Basic Rent then in
effect plus Additional Rent and other charges herein provided.
LESSEE shall also pay to LESSOR all direct damages sustained
by reason of any such holding over. Otherwise, such Holding
Over shall be on the terms and conditions set forth in this
Lease as far as applicable.
31. GOVERNING This Lease shall be governed exclusively by the provisions
LAW hereof and by the laws of the Commonwealth of Massachusetts,
as the same may from time to time exist. No amendment,
alteration, modification of, or addition to the Lease will be
valid or binding unless expressed in writing and signed by
LESSOR and LESSEE. LESSEE agrees to make any modifications of
the terms and provisions of this Lease required and requested
by any lending institution providing financing for the
Building, or Project, as the case may be, provided that no
such modifications will materially adversely affect LESSEE'S
rights and obligations under this Lease.
32. RELOCATION Deleted.
33. ENTIRE This Lease and the Exhibits made a part hereof contain the
AGREEMENT 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. LESSEE acknowledges that all
representations and statements upon which it relied in
executing this Lease are contained herein and that the LESSEE
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.
34. RULES &
REGULATIONS
LESSEE, its employees, agents, licensees, and visitors will at
all times, observe faithfully, and comply strictly with, the
Rules and Regulations set forth in Exhibit X. XXXXXX may from
time to time reasonably amend, delete, or modify existing
Rules and Regulations, or adopt reasonable new Rules and
Regulations for the use, safety, cleanliness, and care of the
Premises and the Property, and the comfort, quiet, and
convenience of occupants of the Property. Modifications or
additions to the Rules and Regulations will be effective upon
thirty (30) days' prior written notice to LESSEE from LESSOR.
In the event of any breach of any Rules or Regulations or any
amendments or additions to such Rules and Regulations, LESSOR
will have all remedies that this Lease provides for default by
LESSOR, and will in addition have
14
any remedies available at law or in equity, including the
right to enjoin any breach of such Rules and Regulations.
LESSOR will not be liable to LESSEE for violation of such
Rules and Regulations by any other tenant, its employees,
agents, visitors, or licensees or any other person. In the
event of any conflict between the provisions of this Lease and
the Rules and Regulations, the provisions of this Lease will
govern.
35. OPTION TO Provided that at the time of such exercise (i) there then
EXTEND exists no Default of LESSEE, (ii) this Lease is then in full
force and effect, and (iii) LESSEE is in actual occupancy of
all or substantially all of the Premises, LESSEE shall have
the right and option to extend the term of this Lease for one
(1) extended term of five years (the "Extended Term"). The
Extended Term shall commence on the day immediately succeeding
the expiration date of the Initial Term, and shall end on the
day immediately preceding the fifth anniversary of the first
day of such Extended Term. LESSEE shall exercise such option
to extend by giving written notice to LESSOR of its desire to
do so not earlier than twelve (12) months and not later than
nine (9) months prior to the expiration date of the Initial
Term. Provided the conditions of clauses (i), (ii) and (iii)
of this section shall have been satisfied, the giving of such
notice by LESSEE shall automatically extend the Term of this
Lease for the Extended Term, and no instrument of renewal need
be executed. In the event that LESSEE fails to give such
notice to LESSOR, this Lease shall automatically terminate at
the end of the Initial Term, and LESSEE shall have no further
option to extend the Term of this Lease. It is agreed that
time is of the essence with respect to the giving of such
notice. The Extended Term shall be on all the terms and
conditions of this Lease, except that (I) option to extend
that Term of this Lease shall be deleted, and (II) the Basic
Rent for the Extended Term shall be at Fair Market Value, not
less than the sum of the rent and all additional rent being
paid by LESSEE during the final year of the Initial Term.
LESSOR shall designate Fair Market Value, (the "Fair Market
Value") by written notice to LESSEE within sixty (60) days of
receipt of notice from LESSEE. If LESSEE disagrees with such
designation, (the "Designation"), LESSEE shall by written
notice within thirty (30) days after receipt of LESSOR'S
figure, advise LESSOR of such disagreement; otherwise LESSEE
shall conclusively be deemed to have agreed to such
Designation.
In the event that the Parties are unable to agree, each Party
shall appoint an appraiser. Each appraiser so appointed shall
be instructed to determine independently the Fair Market Value
and then confer. If the two appraisers are unable to determine
a Designation acceptable to both parties, they shall appoint a
third appraiser. The Designation of this appraiser shall be
considered final.
15
36. TEMPORARY LESSEE may occupy the Temporary Premises (the "Temporary
TENANCY Tenancy") under the same terms and conditions as the Premises
from March 6, 2000 until substantial completion of the
Premises except that the Basic Rent shall be $25,037.82 per
month, pro-rated for any partial month and there shall be no
Additional Rent due for the Temporary Tenancy and the Term
shall be extended for the Temporary Tenancy.
37. RIGHT OF
FIRST If at any time during the Term of this Lease of this Lease,
OFFER LESSOR shall desire to Lease Suite 550 consisting of 7,272
rentable square feet on the fifth floor of the Building or
Suite 530 consisting of 3,364 rentable square feet on the
fifth floor of the Building as described in Exhibit G1
attached hereto or LESSOR shall desire to lease Suite 1000
consisting of 22,664 rentable square feet on the tenth floor
of the Building as described in Exhibit G2, attached hereto,
(the "First Offer Space"), LESSOR shall notify LESSEE and set
forth the terms and conditions on which LESSOR is willing to
lease the First Offer Space, including, without limitation,
rent, build-out allowance and other incentives or inducements
to lease, if any. LESSEE acknowledges that LESSOR has granted
this Right of First Offer for Suite 1000 to the Yankee Group
prior to the Execution of this Lease. Provided that the time
of such exercise (i) there then exists no Default of LESSEE,
(ii) this Lease is then if full force and effect, and (iii)
LESSEE is in actual occupancy of the entire Premises demised
thereunder, LESSEE may, by giving notice in writing to LESSOR
within three (3) Business Days after receipt of LESSOR'S
notice, elect to lease the First Offer Space on the terms so
offered by LESSOR. If LESSEE shall so elect to lease the First
Offer Space, it shall within seven (7) days after such
election enter into an amendment to this Lease incorporating
the terms and contained in LESSOR'S notice. If LESSEE shall
not elect to lease the First Offer Space within such three (3)
Business Day period, or shall fail to enter into such
amendment to this Lease within such seven-day period, LESSEE
shall have no further rights under this section with respect
to the First Offer Space and LESSOR shall be free to lease any
or all of such space to other parties.
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals as of
the date above.
LESSEE: XxxxxXxxxxxxx.xxx, LLC LESSOR: OMV Associates Limited Partnership
BY: Park Square Corporation - its General
Partner
BY: Xxxxxxx X. Xxxxx - its President
BY:_________________________
____________________________ _________________________________
Hereunto Duly Authorized
Premises
Not to Scale Capital Properties
February, 1998
[GRAPHIC OMITTED]
Fifth Floor Stacking Plan
The Park Square Building
Winter Street Architects, Inc.
EXHIBIT B
Legal Description of the Land
All that certain lot, piece or parcel of land situated, lying and being in the
City of Boston, Suffolk County, Massachusetts. with the buildings thereon,
bounded and described as follows:
NORTHERLY: by Providence Street, six hundred seven and 40/100 (607.40) feet.
EASTERLY: by Arlington Street, seventy-five and 06/100 (75.06) feet,
SOUTHERLY: by St. Xxxxx Avenue, six hundred four and 31/100 (604.31) feet and
WESTERLY: by Berkeley Street, seventy-five (75) feet
containing 45,439 square feet, more or less and being the same premises conveyed
by deed dated April 30, 1981 and recorded with Suffolk County Registry of Deeds,
Book 9741, Page 184.
18
EXHIBIT C
ITEMS INCLUDED IN OPERATING EXPENSES
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Lessor or Lessor's agents which shall be directly
related to employment of personnel for the Property, including amounts
incurred for wages, salaries and other compensation for services, payroll,
social security, unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization, retirement
plans and group insurance, uniforms and working clothes and the cleaning
thereof, and expenses imposed on Lessor or Lessor's agents pursuant to any
collective bargaining agreement for the services of employees of Lessor or
Lessor's agents in connection with the operation, repair, maintenance,
cleaning, management and protection of the Property, and its mechanical
systems including, without limitation, day and night supervisors, property
manager, accountants, bookkeepers, janitors, carpenters, engineers,
mechanics, electricians and plumbers and personnel engaged in supervision
of any of the persons mentioned above; provided that, if any such employee
is also employed for other property of Lessor, such compensation shall be
suitably prorated among the Property and such other properties.
2. The cost of services, utilities, materials and supplies furnished or used
in the operation, repair, maintenance, including without limitation fees,
if any, imposed upon Lessor, or charged to the Property, by the state or
municipality in which the Property is located on account of the need of
the Property for increased or augmented public safety services.
3. The cost of replacements for tools and other similar equipment used in the
repair, maintenance, cleaning and protection of the Property, provided
that, in the case of any such equipment used jointly on other properties,
such costs shall be suitably prorated among the Property and such other
properties.
4. Where the Property is managed by Lessor or an affiliate of Lessor, a sum
equal to the amounts customarily charged by management firms in the
Boston/Brookline area for similar properties, but in no event more than
five (5%) percent of gross annual income, whether or not actually paid, or
where managed by other than Lessor or an affiliate thereof, the amounts
charged for management, together with, in either case, reasonable amounts
charged for legal and other professional fees relating to the Property,
but excluding such fees and commissions paid in connection with services
rendered for securing, terminating or renewing leases and administration
and operation of the Premises.
5. Reasonable premiums for insurance against damage or loss to the Property
from such hazards as shall from time to time be required by mortgagees.
6. If, during the Term of this Lease, Lessor shall make a capital
expenditure, the total cost of which is not properly includable in
Operating Expenses for the Operating Year in which it was made, there
shall nevertheless be included in such Operating Expenses for the
Operating Year in which it was made and in Operating Expenses for each
succeeding Operating Year the annual charge-off of such capital
expenditure; and the useful life shall be determined reasonably by Lessor
in accordance with generally accepted accounting principles and practices
in effect at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other utilities
supplied to the Property and not paid for directly by Lessees.
8. Betterment assessments provided the same are apportioned equally over the
longest period permitted by law, and any other governmental charges or
taxes not included in Taxes, including linkage payments, if any.
9. Amounts paid to independent contractors for services, materials, and
supplies furnished for the operation, repair. maintenance, cleaning and
protection of the Property.
19
10. The following items shall be excluded from the Operating Expenses:
o Electricity which is billed directly to LESSEE or any Tenant
in the Building.
o Mortgage Charges
o Brokerage commissions
o Cost of work done by LESSOR for a particular tenant for which
LESSOR has the right to be reimbursed by such tenant.
20
Exhibit D
Temporary Premises
Not to Scale Capital Properties
February, 1998
[GRAPHIC OMITTED]
Third Floor Stacking Plan
The Park Square Building
Winter Street Architects, Inc.
EXHIBIT E
Rules & Regulations
1. LESSOR may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, any persons occupying, using or
entering the Building, or any equipment, finishings, or contents of the
Building, and LESSEE will comply with LESSOR'S requirements relative to such
systems and procedures, provided the foregoing shall not impair LESSEE'S right
to have access to the Premises twenty-four hours per day, seven days per week,
fifty-two weeks per year.
2. The sidewalks, halls, passages, exits, entrances, elevators, and
stairways of the Building will not be obstructed by any tenant or used for any
purpose other than for ingress to and egress from the Building. The halls,
passages, exits, entrances, elevators, escalators, and stairways are not for the
general public, and LESSOR will in all cases retain the right to control and
prevent access to such halls, passages, exits, entrances, elevators, and
stairways of all persons whose presence in the judgment of LESSOR would be
prejudicial to the safety, character, reputation, and interests of the Building
and its tenants, provided that nothing contained in these rules and regulations
will be construed to prevent such access to persons with whom any tenant
normally deals in the ordinary course of its business, unless such persons are
engaged in illegal activities. No lessee and no employee or invitee of any
tenant will go upon the roof of the Building except such roof or portion of such
roof as may be contiguous to a Premises of a particular tenant and may be
designated in writing by LESSOR as a roof deck or roof garden area. No tenant
will be permitted to place or install any object (including without limitation
radio and television antennas, loudspeakers, sound amplifiers, microwave dishes,
solar devices, or similar devices) on the exterior of the Building or on the
roof of the Building.
3. No sign, placard, picture, name advertisement, or written notice
visible from the exterior of LESSEE'S Premises will be inscribed, painted,
affixed, or otherwise displayed by LESSEE on any part of the Building or the
Premises without the prior written consent of LESSOR, other than signs approved
per this Lease. LESSOR will adopt and furnish to LESSEE general guidelines
relating to signs inside the Building on the office floors. LESSEE agrees to
conform to such guidelines. All approved signs or lettering on doors will be
printed, painted, affixed, or inscribed at the expense of the LESSEE by a person
approved by LESSOR. Other than window treatments expressly permitted by LESSOR
and building standard window treatments, material visible from outside the
Building will not be permitted. In the event of the violation of this rule by
LESSEE, LESSOR may remove the violating items without any liability, and may
charge the expenses incurred by such removal to the tenants or tenants violating
this rules.
4. No cooking will be done or permitted by any LESSEE on the Premises,
except in areas of the Premises which are specially constructed for cooking and
except that use by LESSEE of microwave ovens and Underwriters' Laboratory
approved equipment for brewing coffee, tea, hot chocolate, and similar beverages
will be permitted, provided that such use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations.
5. No LESSEE will employ any person or persons other than the cleaning
service of LESSOR for the purpose of cleaning the Premises, unless otherwise
agreed to by LESSOR in writing. Except with the written consent of LESSOR, no
person or persons other than those approved by LESSOR will be permitted to enter
the Building for the purpose of cleaning it. No LESSEE will cause any
unnecessary labor by reason of such LESSEE'S carelessness or indifference in the
preservation of good order and cleanliness. Should LESSEE'S actions result in
any increased expenses for any required cleaning, LESSOR reserves the right to
assess LESSEE for such expenses.
6. The toilet rooms, toilets, urinals, wash bowls and other plumbing
fixtures will not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other foreign substances will
be thrown in such plumbing fixtures. All damages resulting from any misuse of
the fixtures will be borne by the tenant who, or whose servants, employees,
agents, visitors, or licensees, caused the same.
22
7. No LESSEE, or LESSEE'S invitees or licensees, will in any way deface
any part of the Premises or the Building of which they form a part. in those
portions of the Premises where carpet has been provided directly or indirectly
by LESSOR, LESSEE will at its own expense install and maintain pads to protect
the carpet under all furniture having casters other than carpet casters.
8. No LESSEE will alter, change, replace, or rekey any lock or install a
new lock or a knocker on any door of the Premises. LESSOR, its agents, or
employees will retain a pass (master) key to all door locks on the Premises. Any
new door locks required by LESSEE or any change in keying of existing locks will
be installed or changed by LESSOR following tenant's written request to LESSOR
and will be at LESSEE'S expense. all new locks and rekeyed locks will remain
operable by LESSOR'S pass (master) key. LESSOR will furnish each tenant, free of
charge, with two (2) keys to each suite entry door lock on the Premises. LESSOR
will have the right to collect a reasonable charge for additional keys and cards
requested by any tenant. Each tenant, upon termination of its tenancy, will
deliver to LESSOR all keys and access cards for the Premises and Building that
have been furnished to such tenant.
9. The elevator designated for freight by LESSOR will be available for use
by all tenants in the Building during the hours and pursuant to such procedures
as LESSOR may determine from time to time. The persons employed to move LESSEE'S
equipment, material, furniture, or other property in or out of the Building must
be acceptable to LESSOR. The moving company must be a locally recognized
professional mover, whose primary business is performing of relocation services,
and must be bonded and fully insured. A certificate or other verification of
such insurance must be received and approved by LESSOR prior to the start of any
moving operations. Insurance must be sufficient, in LESSOR'S sole opinion, to
cover all personal liability, theft or damage to the Project, including but not
limited to floor coverings, doors, walls, elevators, stairs, foliage, and
landscaping. Special care must be taken to prevent damage to foliage and
landscaping during adverse weather. All moving operations will be conducted at
such times and in such a manner as LESSOR will direct, and all moving will take
place during non-Business Hours unless LESSOR agrees in writing otherwise.
LESSEE will be responsible for the provision of building security during all
moving operations, and will be liable for all losses and damages sustained by
any party as a result of the failure to supply adequate security. LESSOR will
have the right to prescribe the weight, size, and position of all equipment,
materials, furniture, or other property brought into the Building. Heavy objects
will, if considered necessary by LESSOR, stand on wood strips of such thickness
as is necessary to property distribute the weight. LESSOR will not be
responsible for loss of or damage to any such property from any cause, and all
damage done to the building by moving or maintaining such property will be
repaired at the expense of LESSEE. LESSOR reserves the right to inspect all such
property to be brought into the building and to exclude from the Building all
such property which violates any of these rules and regulations or the Lease of
which these rules and regulations are a part. Supplies, goods, materials,
packages, furniture, and all other items of every kind delivered to or taken
from the Premises will be delivered or removed through the entrance and route
designated by LESSOR, and LESSOR will not be responsible for the loss or damage
of any such property.
10. No lessee will use or keep in the Premises or the building any
kerosene, gasoline, or inflammable or combustible or explosive fluid or material
or chemical substance other than limited quantities of such materials or
substances reasonably necessary for the operation or maintenance of office
equipment or limited quantities of cleaning fluids and solvents required in
lessee's normal operations in the Premises, which shall be stored in accordance
with applicable law. Without LESSOR'S prior written approval, no lessee will use
any method of heating or air conditioning other than that supplied by LESSOR. No
lessee will use or keep or permit to be used or kept any foul or noxious gas or
substance in the Premises.
11. Lessees shall not , prior to or during the Term, either directly or
indirectly, employ or permit the employment of any contractor, mover, mechanic
or laborer, or permit any materials in the Premises, if the use of such
contractor, mover, mechanic or laborer or such materials would, in LESSOR'S
opinion, create any difficulty, strike or jurisdictional dispute with other
contractors, movers, mechanics or laborers engaged by LESSOR, lessee, or others,
or would in any way disturb the construction, maintenance, cleaning, repair,
management, security or operation of the Building, Project or any part thereof.
Any lessee, upon demand by LESSOR, shall cause all contractors, movers,
mechanics, laborers or materials causing such interference, difficulty or
conflict to leave or be removed from the Project immediately.
23
12. LESSOR will have the right to prohibit any advertising by LESSEE
mentioning the Building, that in LESSOR'S reasonable opinion, tends to impair
the reputation of the Building or its desirability as a building for offices,
and upon written notice from LESSOR, LESSEE will refrain from or discontinue
such advertising.
13. LESSEE will not bring any animals (except "Seeing Eye" dogs) or birds
into the building, and will not permit bicycles or other vehicles inside or on
the sidewalks outside the Building except in areas designated from time to time
by LESSOR for such purposes.
14. All persons entering or leaving the building between the hours of 6
p.m. and 8 a.m. Monday through Friday, and at all hours on Saturdays, Sundays,
and holidays will comply with such off-hour regulations as LESSOR may establish
and modify from time to time. LESSOR reserves the right to limit reasonably or
restrict access to the Building during such time periods.
15. Each lessee will store all its trash and garbage within its Premises.
No material will be placed in the trash boxes or receptacles if such material is
of such nature that it may not be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage without being in violation
of any law or ordinance governing such disposal. All garbage and refuse disposal
will be made only through entryways and elevators provided for such purposes and
at such times as LESSOR designates. Removal of any furniture or furnishings,
large equipment, packing crates, packing materials, and boxes will be the
responsibility of each lessee and such items may not be disposed of in the
Buildings trash receptacles nor will they be removed by the Building's
janitorial service, except at LESSOR'S sole option and at the lessee's expense.
No furniture, appliances, equipment, or flammable products of any type may be
disposed of in the Building trash receptacles.
16. Canvassing, peddling, soliciting, and distributing handbills or any
other written materials in the Building are prohibited, and each lessee will
cooperate to prevent the same.
17. The requirements of the lessee's will be attended to only upon
application by written, personal, or telephone notice at the office of the
Building. Employees of LESSOR or LESSOR'S agent will not perform any work or do
anything outside of their regular duties unless under special instructions from
LESSOR.
18. A directory of the Building will be provided for the display of the
name and location of tenants only. all entries on the Building directory display
will conform to standards and style set by LESSOR in its sole discretion. Space
on any exterior signage will be provided in LESSOR'S sole discretion. No lessee
will have any right to the use of any exterior sign.
19. LESSEE will see that the doors of the Premises are closed and locked
and that all water faucets, water apparatus, and utilities are shut off before
LESSEE or LESSEE'S employees leave the Premises, so as to prevent waste or
damage, and for any failure to comply or carelessness in this regard LESSEE will
make good all injuries sustained by other tenants or occupants of the Building
or LESSOR. On multiple-tenancy floors, all lessee's will keep the doors to the
Building corridors closed at all times except for ingress or egress.
20. LESSEE will not conduct itself in any manner that is inconsistent with
the character of the building as a first quality building or that will impair
the comfort and convenience of other tenants in the Building.
21. No act or thing done or omitted to be done by LESSOR or LESSOR'S agent
during the term of the Lease in connection with the enforcement of these rules
and regulations will constitute an eviction by LESSOR of any lessee nor will it
be deemed an acceptance of surrender of the Premises by any lessee, and no
agreement to accept such termination or surrender will be valid unless in a
writing signed by LESSOR. The delivery of keys to any employee or agent of
LESSOR will not operate as a termination of the Lease or a surrender of the
Premises unless such delivery of keys is done in connection with a written
instrument executed by LESSOR approving the termination or surrender.
22. In these rules and regulations, the term "lessee" includes the
employees, agents, invitees, and licensees of LESSEE and others permitted by
LESSEE to use or occupy the Premises.
24
23. LESSOR may waive any one or more of these rules and regulations for
the benefit of any particular lessee or lessees, but no such waiver by LESSOR
will be construed as a waiver of such rules and regulations in favor of any
other lessee or lessees, nor prevent LESSOR from enforcing any such rules and
regulations against any or all of the lessees of the Building after such waiver.
24. These rules and regulations are in addition to, and will not be
construed to modify or amend, in whole or in part, the terms, covenants,
agreements, and conditions of the Lease.
25
Exhibit F
Signage
None.
26
Exhibit G1
First Offer Space
Not to Scale Capital Properties
February, 1998
[GRAPHIC OMITTED]
Fifth Floor Stacking Plan
The Park Square Building
Exhibit G2
First Offer Space
Not to Scale Capital Properties
February, 1998
[GRAPHIC OMITTED]
Tenth Floor Stacking Plan
The Park Square Building
