Exhibit 10.1
Lease Agreement
THIS INSTRUMENT IS A LEASE, dated as of September 18, 1998, in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
space in a building (the "Building") known as 0 Xxxxxxxxxxxx Xxxx located in
Batterymarch Park, Quincy, MA. The parties to this instrument hereby agree with
each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION
The following sets forth basic data and, where appropriate, constitutes
definitions of the terms hereinafter listed.
1.2 BASIC DATA
LANDLORD: National Fire Protection Association (NFPA)
LANDLORD'S ORIGINAL ADDRESS: Xxx Xxxxxxxxxxxx Xxxx, Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
TENANT: DM Management Company, a Delaware corporation
TENANT'S ORIGINAL ADDRESS:
PRIOR TO THE COMMENCEMENT DATE: 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxx, XX 00000 Attention: Chief Executive Officer
FROM AND AFTER THE COMMENCEMENT DATE: the Premises
BUILDING: An approximately 154,000 square foot five (5) story building
to be constructed by Landlord at 0 Xxxxxxxxxxxx Xxxx, Xxxxxx, XX.
BASIC RENT: Years 1 and 2 of the Term: $26.50 per square foot of the
Premises Rentable Area per annum
Years 3 and 4 of the Term: $27.50 per square foot of the
Premises Rentable Area per annum
Years 5, 6 and 7 of the Term: $28.50 per square foot of the
Premises Rentable Area per annum
Years 8, 9 and 10 of the Term: $29.50 per square foot of the
Premises Rentable Area per annum
Basic Rent may be adjusted and/or abated pursuant to Sections 2.3, 3.2
and 12.1.
PREMISES RENTABLE AREA: Approximately 60,500 square feet (subject to
adjustment pursuant to Section 2.3) located on the fourth and fifth
floors of the Building as measured in accordance with the Measurement
Method.
PERMITTED USES: General office uses including the utilization of one
residential size washing machine and clothes dryer.
ESCALATION FACTOR: as computed in accordance with the Escalation Factor
Computation.
PLAN APPROVAL DATE: December 1, 1998
SCHEDULED COMPLETION DATE: September 1, 1999
INITIAL TERM: Ten (10) years commencing on the Commencement Date and
expiring at the close of the day immediately preceding the tenth (10th)
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 in which such anniversary shall fall.
SECURITY DEPOSIT: $1,300,000, such amount to be decreased by $200,000 on
each anniversary of the Commencement Date provided that (i) no Default of
Tenant exists at that time and (ii) Tenant maintains net profits equal to
or greater than $6,500,000 for the year preceding the year in which the
reduction is sought (and provides to Landlord reasonable evidence of the
same). Notwithstanding the foregoing, at no point during the Term shall
the Security Deposit be decreased to less than $400,000.
BASE OPERATING EXPENSES: Base Operating Expenses shall be the actual
Operating Expenses for the Property for calendar year 2000 (provided
that, if during any portion of calendar year 2000, less than 95% of the
Building Rentable Area was occupied by tenants or if the Building was in
operation for only a portion of such year, actual operating expenses
incurred shall be reasonably extrapolated by Landlord to the estimated
operational expenses that would have been incurred if the Building were
in operation for the entire year and 95% occupied for such year, and such
extrapolated amount shall, for the purposes hereof, be deemed to be the
Base Operating Expenses.
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BASE TAXES: Base Taxes shall be the actual Taxes for the Property for the
period July 1, 1999 through June 30, 2000 (provided that if the
assessment for such period does not reflect the assessment for the
completed improvements, Base Taxes shall be appropriately adjusted when
the completed improvements have been fully assessed)
PUBLIC LIABILITY INSURANCE: $500,000 per occurrence (combined single
limit) for property damage, personal injury or death.
1.3 ADDITIONAL DEFINITIONS
BUILDING RENTABLE AREA: Approximately 154,000 square feet measured in
accordance with the Measurement Method.
BUSINESS DAYS: All days except Sunday, New Year's Day, Xxxxxx Xxxxxx
Xxxx Day, Washington's Birthday, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day (and
the following day when any such day occurs on Sunday).
COMMENCEMENT DATE: As defined in Section 4.1.
DEFAULT OF TENANT: As defined in Section 13.1.
ESCALATION CHARGES: The amounts prescribed in Sections 8.1 and 9.2.
ESCALATION FACTOR COMPUTATION: Premises Rentable Area divided by 95% of
Building Rentable Area.
LANDLORD'S WORK: As defined in Section 4.2.
MEASUREMENT METHOD: "Standard Method of Floor Measurement for Office
Buildings," effective April 16, 1968, approved by the Real Estate Board
of New York, Inc. Without limitation, such computation includes common
areas of the Building notwithstanding the fact that such common areas are
not contained within the Premises.
OPERATING EXPENSES: As determined in accordance with Section 9.1.
OPERATING YEAR: As defined in Section 9.1.
PREMISES: The portion of the Building as shown on Exhibit FP annexed
hereto.
PROPERTY: The Building and the land parcels on which it is located
(including adjacent sidewalks).
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TAX YEAR: As defined in Section 8.1.
TAXES: As determined in accordance with Section 8.1.
TENANT'S DELAY: As defined in Section 4.2.
TENANT'S PLANS: As defined in Section 4.2.
TENANT'S REMOVABLE PROPERTY: As defined in Section 5.2.
TERM OF THIS LEASE: The Initial Term and any extension thereof in
accordance with the provisions hereof.
ARTICLE II
PREMISES AND APPURTENANT RIGHTS
2.1 LEASE OF PREMISES
Landlord hereby demises and leases to Tenant for the Term of this Lease
and upon the terms and conditions hereinafter set forth, and Tenant
hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
a. Tenant shall have, as appurtenant to the Premises, (i) the
non-exclusive right to use, and permit its invitees to use, in
common with others, public or common lobbies, hallways,
stairways, and elevators and common walkways necessary for access
to the Building, and if the portion of the Premises on any floor
includes less than the entire floor, the common toilets,
corridors and elevator lobby of such floor; but such rights shall
always be subject to reasonable rules and regulations from time
to time established by Landlord pursuant to Section 14.7 and to
the right of Landlord to designate and change from time to time
areas and facilities so to be used and (ii) 222 parking spaces on
a non-exclusive, first-come, first-served basis, such spaces to
be available in a surface level parking lot or above-ground
structured parking facility provided, however, that Tenant shall
be entitled to use in the parking garage located under the
Building, on a designated basis, 20 parking spaces, five (5) of
which shall be located closest to the Building's elevator.
Landlord shall have no obligation, and Tenant shall have no
right, to tow or otherwise remove vehicles of third parties who
park in Tenant's designated spaces. With respect to parking
spaces, Landlord reserves the right to institute a tag or sticker
system to monitor compliance by Tenant and others of use of the
parking spaces. The Premises shall be
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designated a non-smoking area and Tenant will comply, and cause
its employees and invitees to comply, with Building regulations
regarding non-smoking areas.
b. Excepted and excluded from the Premises are the ceiling, floor
and all perimeter walls of the Premises, except the inner
surfaces thereof, but the entry doors to the Premises are a part
thereof; and Tenant agrees that Landlord shall have the right to
place in the Premises (but in such manner as to reduce to a
minimum interference with Tenant's use of the Premises) utility
lines, pipes and the like, in, over and upon the Premises,
provided that Landlord shall, if it is reasonably feasible, place
such utility lines, pipes and the like behind the walls, above
the ceilings and below the floor of the Premises. Tenant shall
install and maintain, as Landlord may require, proper access
panels in any hung ceilings or walls as may be installed by
Tenant following completion of the initial improvements to afford
access to any facilities above the ceiling or within or behind
the walls of the Premises.
2.3 ADJUSTMENT TO PREMISES RENTABLE AREA
a. Landlord shall, prior to the Commencement Date, obtain an exact
measurement of the Premises in accordance with the Measurement
Method. Such measurement shall be made by ADD, Inc. (or other
architect or engineer acceptable to Landlord) at the cost and
expense of Landlord.
b. If the Premises Rentable Area as so measured is more or less than
the Premises Rentable Area as set forth in Section 1.2:
i. Basic Rent shall, retroactively to the Commencement Date, be
recomputed by multiplying the Basic Rent set forth in
Section 1.2 by a fraction, the numerator of which shall be
premises Rentable Area as determined by such measurement and
the denominator of which shall be the Premises Rentable Area
set forth in Section 1.2: and
ii. The Escalation Factor shall be recomputed to be the
percentage determined by dividing the Premises Rentable Area
as determined by such measurement by 95% of Building
Rentable Area.
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Any payment due either party as a result of such recomputations
shall, if due from Tenant, be paid within fifteen (15) days of
such recomputation, or if due from Landlord, be credited against
the first amounts of Basic Rent due after such recomputation.
c. In the event of any adjustment pursuant to this Section, Landlord
and Tenant shall promptly execute a written statement setting
forth the recomputed Premises Rentable Area, Basic Rent and
Escalation Factor.
ARTICLE III
BASIC RENT
3.1 BASIC RENT
a. Tenant agrees to pay to Landlord, or as directed by Landlord,
commencing on the Commencement Date without offset, abatement
(except as provided in Article 12.1), deduction or demand, the
Basic Rent. Such Basic Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every
calendar month during the Term of this Lease, at Landlord's
Original Address, or at such other place as Landlord shall from
time to time designate by notice. Until notice of some other
designation is given, Basic Rent and all other charges for which
provision is herein made shall be paid by remittance payable to
Landlord, at Landlord's Original Address, or at such other place
as Landlord shall from time to time designate by notice.
b. Basic Rent for any partial month shall be prorated on a daily
basis, and if the Term of this Lease commences on a day other
than the first day of a calendar month, the first payment which
Tenant shall make to Landlord shall be payable on the
Commencement Date and shall be equal to a proportionate part of
the monthly installment of Basic Rent for the partial month from
the Commencement Date to the last day of the month in which such
Commencement Date occurs plus the installment of Basic Rent for
the succeeding calendar month. In addition to any charges
pursuant to Section 14.18, Tenant shall pay a late charge equal
to 5% of the amount of any Basic Rent payment not paid within
five (5) days of the due date thereof.
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ARTICLE IV
TERM OF LEASE
4.1 COMMENCEMENT DATE
The Commencement Date shall be the later to occur of:
a. The Scheduled Completion Date; or
b. The day following the date on which the Premises are ready for
occupancy as provided in Section 4.2.
Notwithstanding the foregoing, if Tenant's personnel shall occupy all or
any part of the Premises for the conduct of its business prior to the
Commencement Date as determined pursuant to the preceding sentence, such date of
occupancy shall, for all purposes of this Lease, be the Commencement Date.
4.2 PREPARATION OF THE PREMISES
a. Tenant is currently having schematic design drawings for the
layout of the Premises ("Tenant's Initial Plans") prepared, which
Initial Plans shall be consistent with the specifications set
forth in EXHIBIT LW attached hereto and shall be submitted to
Landlord for its approval, which approval shall not be
unreasonably withheld. Any disapproval shall be accomplished by
a specific statement of reasons therefor and Tenant shall
promptly revise and resubmit such Initial Plans. Failure by
Landlord to approve or disapprove any submission of Tenant's
Initial Plans within ten (10) days after submission shall
constitute disapproval thereof. If Tenant's Initial Plans shall
not be approved within sixty (60) days of the Plan Approval Date,
Landlord shall have the option to (i) terminate this Lease by
giving notice thereof to Tenant at any time after such sixty (60)
day period and thereupon this Lease shall cease and come to an
end without further obligation or liability on the part of either
party or (ii) treat each day following such sixty (60) day period
as a Tenant's Delay in accordance with Section 4.2(e) hereof,
provided that Landlord shall retain, during the period in which
Tenant's Initial Plans have not been approved, the right to
terminate this Lease as provided in clause (i) hereof.
Upon receipt of notice of Landlord's approval of Tenant's Initial
Plans, Tenant shall have sixty (60) days within which to deliver
to Landlord for its approval, such approval not to be
unreasonably conditioned, withheld or delayed, full construction
drawings ("Tenant's Plans"), such
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Plans to be consistent with Tenant's Initial Plans. Any
disapproval shall be accomplished by a specific statement of
reasons therefor and Tenant shall promptly revise and resubmit
such Plans. Failure by Landlord to approve or disapprove any
submission of Tenant's Plans within ten (10) days after
submission shall constitute disapproval thereof. If Tenant's
Plans have not been approved by Landlord within sixty (60) days
of Landlord's receipt thereof, Landlord shall have the option to
(i) terminate this Lease by giving notice thereof to Tenant at
any time after such sixty (60) day period and thereupon this
Lease shall cease and come to an end without further obligation
or liability on the part of either party or (ii) treat each day
following such sixty (60) day period as a Tenant's Delay in
accordance with Section 4.2(e) hereof, provided that Landlord
shall retain, during the period in which Tenant's Plans have not
been approved, the right to terminate this Lease as provided in
clause (i) hereof.
b. Following approval of Tenant's Plans (and execution of a work
letter if requested by Landlord) Landlord shall exercise all
reasonable efforts to complete the work specified therein
("Landlord's Work") necessary to prepare the Premises for
Tenant's occupancy, but Tenant shall have no claim against
Landlord for failure so to complete such Work except the right to
terminate this Lease in accordance with paragraph (e) of this
Section 4.2. Landlord shall perform the base building work set
forth in EXHIBIT LW attached hereto at its sole cost and expense,
and, in addition, provide Tenant with an allowance of $20.00 per
square foot of Premises Rentable Area for the cost of Tenant's
improvements in the Premises (the "Tenant Improvements
Allowance"). To the extent that the requirements of Tenant's
Plans exceed the Tenant Improvements Allowance, Tenant shall pay
to Landlord the cost of such excess according to the following
schedule: thirty-three percent (33%) at the commencement of
Landlord's Work, thirty-three percent (33%) when Landlord's Work
is fifty percent (50%) complete and the balance (the "Final
Payment") when Landlord's Work has been completed with the
exception of "punch list" items, all as determined by Landlord's
architect. Notwithstanding the foregoing, Tenant may withhold
from the Final Payment 150% of the amount determined by
Landlord's architect as necessary to complete any "punch-list"
items (the "Retainage"). The balance of the Retainage shall be
paid to Landlord at such time as the "punch list" items have been
completed, as determined by Landlord's architect. Any increase
in the cost of Landlord's Work resulting from a change by Tenant
in any of Tenant's Plans after Landlord's original approval
thereof shall be paid to Landlord either 100% in advance or on
such other schedule as Landlord may in its discretion determine,
such determination to be made by Landlord at the
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time of its approval of such changes to Tenant's Plans. Tenant
shall, if requested by Landlord, execute a work letter confirming
such excess costs prior to the time Landlord shall be required to
commence work. Landlord shall, at its expense, procure a
certificate of occupancy or an equivalent use or occupancy permit
issued by the local building inspector in connection with its
construction obligations hereunder.
c. Landlord agrees and its agreement with its general contractor
(the "General Contractor") shall provide that all subcontracts
shall be bid to a minimum of three (3) qualified subcontractors
to be selected by the General Contractor. The General Contractor
shall make available for review by Tenant copies of all bids
received with respect to a portion of the construction of
Tenant's improvements to the Premises (the "Tenant Buildout") and
Tenant shall, within three (3) days of its receipt thereof,
notify the General Contractor if it has a preference with respect
to any such contractor, provided, however, that Tenant shall have
no right to require or prohibit the selection of any particular
subcontractor. The General Contractor shall select the
subcontractor submitting the lowest bid unless the General
Contractor, in its sole discretion, elects not to select the low
bidder because of a concern with respect to quality of work, cost
of the work or the ability of such subcontractor to timely
perform.
With respect to changes requested by Tenant after initial
approval of Tenant's Plans, the General Contractor shall solicit
at least three bids and request that each subcontractor's bid
include unit prices. Upon receipt of the bids, Tenant and its
architect shall have the option of reviewing such bids for
purposes of value engineering and suggesting changes to the
General Contractor who shall communicate such suggestions to the
subcontractors with a request that the subcontractor revise their
bids. Upon receipt of the revised bids, the General Contractor
shall select the subcontractor submitting the lowest bid unless
the General Contractor, in its sole discretion, elects not to
select the low bidder because of a concern with respect to
quality of work, cost of the work or the ability of such
subcontractor to timely perform.
Tenant's architect shall be permitted to attend regularly
scheduled job meetings during the course of construction of the
Tenant Buildout and shall be provided copies of the minutes of
all job meetings relating to the Tenant Buildout, which minutes
shall include information relating to the schedule of delivery of
the Premises.
With respect to its administration of the General Contractor's
contract for the Tenant Buildout, Landlord's architect shall keep
Tenant's
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architect reasonably informed as to the progress of the work
thereunder and shall permit Tenant's architect reasonable access
to copies of applications for payment and requests for change
orders (and any back-up documentation thereto), provided to it by
the Contractor. Approval or disapproval of applications for
payment, change orders and all other matters shall be in the
discretion of Landlord's architect (as such discretion may
otherwise be limited by the construction contract and Landlord's
agreement with its architect) provided, however, that Landlord's
architect shall take into consideration the recommendations of
Tenant's architect in connection with such approvals or
disapprovals.
d. The Premises shall be deemed ready for occupancy on the first day
as of which:
i. Landlord's Work has been completed except for items of work
(and, if applicable, adjustment of equipment and fixtures)
which can be completed after occupancy has been taken
without causing undue interference with Tenant's use of the
Premises (i.e., so-called "punch list" items), and
ii. Tenant has been given notice of the date that Landlord's
Work was or will be completed, such notice to be given by
Landlord to Tenant at least two (2) weeks' prior to the
anticipated date of completion. The Premises shall be
deemed ready for occupancy when either a temporary or
permanent certificate of occupancy or an equivalent use or
occupancy permit shall be issued by the building inspector
within the municipality where the Building is being
constructed. The determination as to whether the Premises
are ready for occupancy shall be made by ADD, Inc. (or such
other architect as may be selected by Landlord and approved
by Tenant, which approval shall not be unreasonably withheld
or delayed) and shall be conclusive and binding on Landlord
and Tenant. Landlord shall complete as soon as conditions
permit all "punch list" items and Tenant shall afford
Landlord access to the Premises for such purposes. All
telephone installation in the Premises shall be the
responsibility of the Tenant. Failure or delay of such
installation shall not delay the above completion date.
e. If the Premises shall not be ready for occupancy within one
hundred eighty (180) days following the Scheduled Completion Date
(which period shall be extended automatically for such periods of
time as Landlord is prevented from proceeding with or completing
the same for any cause beyond Landlord's reasonable control,
including failure of
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Tenant to obtain approval of Tenant's Plans by the Plan Approval
Date or to execute a work letter if requested by Landlord, and
any act or failure to act of Tenant which interferes with
Landlord's construction shall extend such Date without limiting
Landlord's other rights on account thereof), Tenant shall have
the right to terminate this Lease by giving notice to Landlord of
Tenant's desire so to do within thirty (30) days after the
expiration of such period; and, upon the giving of such notice,
this Lease shall cease and come to an end without further
liability or obligation on the part of either party unless,
within such 30-day period, Landlord substantially completes
Landlord's Work; and, subject to the following sentence, such
right of termination shall be Tenant's sole and exclusive remedy
at law or in equity for Landlord's failure so to complete such
Work within such time. If the Premises shall not be ready for
occupancy within sixty (60) days following the Scheduled
Completion Date (which period shall be extended automatically for
periods of force majeure or Tenant's Delay (as defined below),
and this Lease shall not have been terminated, Tenant shall
receive a credit against Basic Rent next due for each day in
excess of such sixty (60) day period that the Premises are not
ready for occupancy.
As used herein, the term "force majeure" shall mean a time
extension equal to the aggregate of any delays when the party
required to perform the respective obligation is prevented from
doing so, despite the exercise of reasonable diligence, and such
delay is caused by: (i) Acts of God, (ii) changes in government
regulations, (iii) casualty, (iv) strike, lockouts or other such
labor difficulties, (v) unusual weather conditions, including
earthquakes and hurricanes, and other natural disasters, (vi)
unusual scarcity of or inability to obtain supplies, parts or
employees to furnish such services, (vii) failure of power,
(viii) riots, wars, acts of public enemy or insurrections, (ix)
fires, explosions or (x) other acts reasonably beyond such
parties' control, but in no event shall the term include economic
or financing difficulties.
f. Landlord shall permit Tenant access to the Premises for the
purpose of allowing Tenant or its contractors to install fixtures
and wiring for data and telephone services when such access may
be provided without material interference with the remaining
Landlord Work provided that any such work to be performed by
Tenant or its contractor's during such period shall (i) not
interfere with the remaining Landlord Work, (ii) be coordinated
with the remaining Landlord Work in such a manner as to maintain
harmonious labor relations and not cause any work stoppage or
damage to the Premises or the Building and (iii) not interfere
with Building construction or operation. Tenant hereby
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acknowledges that Landlord will be using union labor in
connection with its Work in the Premises and the Building and
Tenant agrees not to employ or permit the use of any labor or
otherwise take any action which might result in a labor dispute
involving personnel providing services in the Building pursuant
to arrangements with Landlord.
g. If a delay shall occur in the date the Premises are ready for
occupancy pursuant to paragraph (d) as the result of any of the
following (a "Tenant's Delay"):
i. Any request by Tenant that Landlord delay in the
commencement or completion of Landlord's Work for any
reason;
ii. Any change by Tenant in any of Tenant's Plans after original
approval thereof by Landlord (including, without limitation,
a change pursuant to Section 4(c) hereof);
iii. Any other act or omission of Tenant or its officers, agents,
servants or contractors;
iv. Any reasonably necessary displacement of any of Landlord's
Work from its place in Landlord's construction schedule
resulting from any of the causes for delay referred to in
clauses i., ii., and iii. of this paragraph and the fitting
of such Work back into such schedule; or
v. Any act or omission of Tenant in violation of paragraph (e)
above;
then Tenant shall, from time to time, and within ten (10) days
after demand therefor, pay the Landlord as an additional charge
for each day of such delay equal to the amount of Basic Rent,
Escalation Charges and other charges that would have been payable
hereunder had the Commencement Date occurred prior to such delay.
Tenant also shall pay to Landlord within ten (10) days of
invoice therefor, any additional costs incurred by Landlord in
completing the work to the extent that such costs are reasonably
attributable to Tenant's Delay.
h. If, as a result of Tenant's Delay(s), Landlord's Work is delayed
in the aggregate for more than ninety (90) days, Landlord may
(but shall not be required to) at any time thereafter terminate
this Lease by giving written notice of such termination to Tenant
and thereupon this Lease shall terminate without further
liability or obligation on the part of either party except that
Tenant shall pay to Landlord the cost
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theretofore incurred by Landlord in performing Landlord's Work
together with any amount required to be paid pursuant to
paragraph (g). above through the effective termination date.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE; WARRANTIES
Except to the extent to which Tenant shall have given Landlord written
notice, not later than the end of the second full calendar month next
beginning after the Commencement Date, of respects in which Landlord has
not performed Landlord's Work, Tenant shall be deemed to have
acknowledged that all Landlord's Work has been completed to Tenant's
satisfaction and that Tenant has waived any claim that Landlord has
failed to perform any of Landlord's Work. Landlord agrees to correct any
defects due to faulty workmanship or materials in Landlord's Work,
provided Tenant shall have given written notice of such defects to
Landlord prior to the first anniversary of the Commencement Date. From
and after the expiration of such twelve (12) month period, Tenant shall
be entitled to the benefit of any applicable warranties obtained by
Landlord from third parties with respect to Landlord's Work provided that
Tenant shall be solely responsible for enforcing such warranties directly
against the party providing the same.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE
a. Tenant agrees that the Premises shall be used and occupied by
Tenant only for Permitted Uses and for no other purpose.
b. Tenant agrees to conform to the following provisions during the
Term of this Lease:
i. Tenant shall cause all freight to be delivered to or removed
from the Building and the Premises in accordance with
reasonable rules and regulations established by Landlord
therefor;
ii. Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of windows
and doors) or on any part of the Building outside the
Premises, any sign, symbol, advertisement or the like
visible to public view outside of the Premises without the
prior consent of Landlord. Landlord will not unreasonably
withhold consent for signs or lettering on the entry doors
to the Premises provided such signs conform to building
standards adopted by Landlord and Tenant has
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submitted to Landlord a plan or sketch of the sign to be
placed on such entry doors. Landlord agrees, however, to
maintain a tenant directory in the lobby of the Building in
which will be placed Tenant's name and the location of the
Premises in the Building. In addition, if Tenant occupies
at least 50% of the Building or is the largest single tenant
in the Building after such time as so much of the Building
is initially leased to other tenants that it can be
determined that Tenant will be the largest single tenant in
the Building, Tenant, at Tenant's sole cost and expense,
shall have the non-exclusive right to maintain, subject to
Landlord's prior approval, a sign on the exterior of the
Building provided that (i) no sign shall be permitted unless
and until Tenant has submitted to Landlord a plan of the
sign to be placed on the Building, (ii) such sign shall
consist of no more than 19 letters, each letter to be no
more than three (3) feet in height, (iii) Landlord has
determined that the same is in compliance with building
standards, (iv) Landlord reasonably approves the location of
such sign on the Building, and (v) such sign complies with
all applicable laws, ordinances and codes.
iii. Tenant shall not perform any act or carry on any practice
which may injure the Premises, or any other part of the
Building, or cause any offensive odors or loud noise or
constitute a nuisance or a menace to any other tenant or
tenants or other persons in the Building;
iv. Tenant shall not operate any cooking apparatus (except for
coffee making equipment, a microwave oven, a standard size
refrigerator and a sink), or locate any vending machines, in
the Premises; and
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT
a. Tenant shall make no alterations, additions or improvements
(collectively, "Improvements") in or to the Premises without
Landlord's prior written consent provided that subsequent to the
completion of the initial Landlord Work, Landlord's consent shall
not be required if such Improvements (i) are non-structural and
do not exceed in the aggregate a cost of $10,000 or (ii) are of a
decorating nature (i.e., carpeting, painting, wallpaper)
irrespective of the cost. With respect to Improvements requiring
Landlord's consent, Landlord shall not unreasonably withhold,
condition or delay its consent for non-structural Improvements to
the Premises. All Improvements shall:
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i. Be performed in a good and workmanlike manner and in
compliance with all applicable laws;
ii. Be made only by contractors or mechanics approved by
Landlord which consent shall not be unreasonably withheld,
conditioned or delayed provided that Tenant agrees not to
employ or permit the use of any labor or otherwise take any
action which might result in a labor dispute involving
personnel providing services in the Building pursuant to
arrangements made by Landlord;
iii. Be made at Tenant's sole expense and at such times and in
such manner as Landlord may from time to time designate; and
iv. Become part of the Premises and the property of Landlord.
b. All articles of personal property and all business fixtures,
machinery and equipment and furniture owned or installed by
Tenant solely at its expense in the Premises ("Tenant's Removable
Property") shall remain the Property of Tenant and shall be
removed by Tenant at any time prior to the expiration of this
Lease, provided that Tenant, at its expense, shall repair any
damage to the Premises and the Building caused by such removal.
c. Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic's or other lien for any such labor
or materials shall attach to or affect the reversion or other
estate or interest of Landlord in and to the Premises. Whenever
and as often as any mechanic's lien shall have been filed against
the Property based upon any act or interest of Tenant or of
anyone claiming through Tenant, Tenant shall forthwith take such
action by bonding, deposit or payment as will remove or satisfy
the lien. Landlord shall have the option, but not the
obligation, of removing, bonding over or paying such lien if
Tenant has not done so within fifteen (15) days following
Landlord's notice to Tenant of the filing of the same, and any
amounts paid by Landlord therefor shall be paid to Landlord
within 10 business days after invoice therefor as additional rent
hereunder.
d. Tenant shall not be obligated to remove at the end of the Term of
this Lease (i) any Improvement unless Landlord specifies an
Improvement for removal at the time Landlord consents to such
Improvement or (ii) any improvements built by Landlord as part of
the initial fit-up of the Premises which would customarily be
considered standard tenant
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improvement (collectively referred to herein as "Building
Standard Office Improvements").
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 Prohibition
a. Tenant covenants and agrees that neither this Lease nor the term
and estate hereby granted, nor any interest herein or therein,
will be assigned, mortgaged, pledged, encumbered or otherwise
transferred and that neither the Premises nor any part thereof
will be encumbered in any manner by reason of any act or omission
on the part of Tenant, or used or occupied or permitted to be
used or occupied, by anyone other than Tenant, or for any use or
purpose other than a Permitted Use, or be sublet (which term,
without limitation, shall include granting of concessions,
licenses and the like) in whole or in part, without, in each
instance, having first received the express written consent of
Landlord which, in the case of any subletting (except to another
tenant in the Building or other buildings owned by Landlord or
its beneficiaries), will not be unreasonably withheld,
conditioned or delayed. In all other cases, Landlord's consent
may be withheld in its sole discretion. The foregoing
restrictions shall not be applicable to (i) an assignment of this
Lease or a subletting of the Premises by Tenant to an entity
controlling, controlled by or under common control with Tenant or
(ii) an assignment of this Lease to an entity that succeeds to
Tenant's interest in this Lease by reason of merger, acquisition,
consolidation or reorganization (collectively such entities are
referred to herein as, "Affiliates"), or an assignment of this
Lease to an entity acquiring all or substantially all of Tenant's
assets, provided that Tenant shall prior to the effective date of
such assignment or subletting to an entity described in the
foregoing clause (ii) provide to Landlord evidence reasonably
satisfactory to Landlord that, as of the date of such assignment
or subletting, the assignee shall have a net worth equal to or
greater than that of Tenant. It shall be a condition of the
validity of any assignment, whether with the consent of Landlord
or to an Affiliate, that the assignee agrees directly with
Landlord, by written instrument in form satisfactory to Landlord,
to be bound by all the obligations of Tenant hereunder including,
without limitation, the covenant against further assignment and
subletting. No assignment or subletting shall relieve Tenant
from its obligations hereunder and Tenant shall remain fully and
primarily liable therefor.
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b. If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone 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 net
amount collected to the rent and other charges herein reserved,
but no such assignment, subletting, occupancy 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 its obligations
hereunder. The consent by Landlord to an assignment or
subletting shall in no way be construed to relieve Tenant or any
successor from obtaining the express consent in writing of
Landlord to any further assignment or subletting. No assignment
or subletting and no use of the Premises by a subsidiary
wholly-owned by Tenant or controlling corporation of Tenant shall
affect Permitted Uses.
6.2 EXCESS PAYMENTS
If:
i. The rent and other sums received by Tenant on account of a
sublease of all or any portion of the Premises exceeds the
Basic Rent and Escalation Charges allocable to the space
subject to the sublease (in the proportion of the area of
such space to the entire Premises) plus actual out-of-pocket
expenses incurred by Tenant in connection with Tenant's
subleasing of such space, including brokerage commissions to
a licensed broker and the cost of preparing such space for
occupancy by the subtenant, Tenant shall pay to Landlord, as
an additional charge, 75% of such excess, monthly as
received by Tenant; or
ii. Any payment received by Tenant on account of any assignment
of this Lease exceeds the actual out-of-pocket expenses
incurred by Tenant in connection with such assignment,
including brokerage commissions to a licensed broker and the
cost of preparing space for the assignee, Tenant shall pay
to Landlord, as an additional charge, 75% of such excess
when received by Tenant.
6.3 TERMINATION
Notwithstanding any other provision of this Article VI, if Tenant shall
intend to assign this Lease or intend (except with respect to subletting
described in the second sentence of Paragraph a. of this Section 6.1) to
enter into a sublease which, together with any other subleases then in
effect, cover more than 75%
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of Premises Rentable Area, Landlord may elect to terminate this Lease by
giving notice to Tenant of such election not later than thirty (30) days
after receiving notice of such subletting or assignment whereupon this
Lease shall terminate thirty (30) days after the giving of such notice by
Landlord with the same force and effect as if such date where the date
originally established as the expiration date hereof.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 Landlord Repairs
a. Except as otherwise provided in this Lease, Landlord agrees to
keep in good order, condition and repair the roof, public areas
(including common areas), exterior walls, floor slabs, the
Building HVAC system (but not any special tenant HVAC system) and
structure of the Building (including plumbing, mechanical and
electrical systems), all insofar as they affect the Premises,
except that Landlord shall in no event be responsible to Tenant
for the condition of glass in and about the Premises or for the
doors leading to the Premises, or for any condition in the
Premises or the Building caused by any act or neglect of Tenant,
its invitees or contractors (in which case Tenant shall promptly
effect such repairs or, at Landlord's option, Landlord may effect
such repairs and charge the entire cost thereof to Tenant as
additional rent provided, however, that if, after Tenant pays the
cost of such repair, Landlord receives from its insurance carrier
proceeds with respect to the cost of such repairs, Landlord shall
reimburse Tenant for the cost of such repairs up to the amount
actually received by Landlord with respect to the same). Landlord
shall not be responsible to make any improvements or repairs to
the Building other than as expressly in this Section 7.1
provided, unless expressly provided otherwise in this Lease.
b. Landlord shall never be liable for any failure to make repairs
which, under the provisions of this Section 7.1 or elsewhere in
this Lease, Landlord has undertaken to make unless Tenant has
given notice to Landlord of the need to make such repairs, and
Landlord has failed to commence to make such repairs within
thirty (30) days after receipt of such notice, or fails to
proceed with reasonable diligence to complete such repairs. Upon
such failure, Tenant shall have the right, but not the
obligation, to make such repair, whereupon Landlord shall
forthwith reimburse Tenant for the reasonable costs incurred by
Tenant upon receipt of an invoice from Tenant. In no event shall
Tenant have a right of offset or abatement of Basic Rent or other
amounts due hereunder.
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7.2 TENANT'S AGREEMENT
a. Tenant will keep neat and clean and maintain in good order,
condition and repair the Premises and every part thereof,
excepting only those repairs for which Landlord is responsible
under the terms of this Lease, reasonable wear and tear of the
Premises, and damage by fire or other casualty and as a
consequence of the exercise of the power of eminent domain; and
shall surrender the Premises, at the end of the term, in such
condition. Without limitation, Tenant shall maintain and use the
Premises in accordance with all directions, rules and regulations
of the proper officers of governmental agencies having
jurisdiction, and shall, at Tenant's own expense, obtain all
permits, licenses and the like required by applicable law.
b. If repairs are required to be made by Tenant pursuant to the
terms hereof, Landlord may demand that Tenant make the same
forthwith, and if Tenant refuses or neglects to commence such
repairs and complete the same with reasonable dispatch, after
such demand, Landlord may (but shall not be required to do so)
make or cause such repairs to be made and shall not be
responsible to Tenant for any loss or damage that may accrue to
Tenant's stock or business by reason thereof. If Landlord makes
or causes such repairs to be made, Tenant agrees that Tenant
shall forthwith, on demand, pay to Landlord the cost thereof as
an additional charge hereunder.
7.3 FLOOR LOAD - HEAVY MACHINERY
a. Tenant shall not place a load upon any floor in the Premises
exceeding 100 lbs. (live load) per square foot of Premises
Rentable Area. Landlord reserves the right to prescribe the
weight and position of all business machines and mechanical
equipment, including safes, which shall be placed so as to
distribute the weight. Business machines and mechanical
equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient, in Landlord's judgment, to absorb
and prevent vibration, noise and annoyance. Tenant shall not
move any safe, heavy machinery, heavy equipment, freight, bulky
matter or fixtures into or out of the Building without Landlord's
prior consent, which consent may include a requirement to provide
insurance in such amounts as Landlord may deem reasonable.
b. If any such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only
persons holding a Master Rigger's License to do such work, and
that all work in
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connection therewith shall comply with applicable laws and
regulations. Any such moving shall be at the sole risk and
hazard of Tenant, and Tenant will exonerate, indemnify and save
Landlord harmless against and from any liability, loss, injury,
claim or suit resulting directly or indirectly from such moving.
7.4 BUILDING SERVICES
a. Landlord shall, on Business Days from 8:00 a.m. to 6:00 p.m.
(except on Saturdays only from 8:00 a.m. to 1:00 p.m.), furnish
heating and cooling as normal seasonal changes and the
Massachusetts State Building Code may require to provide
reasonably comfortable space temperature and ventilation for
occupants of the Premises under normal business operation at an
occupancy of not more than one person per 150 square feet of
Premises Rentable Area and an electrical load not exceeding
approximately 5.0 xxxxx per square foot of Premises Rentable
Area. If Tenant shall require air conditioning, heating or
ventilation outside the hours and days above specified, Landlord
shall furnish such service and Tenant shall pay therefor such
charges as may from time to time be in effect. In the event
Tenant introduces into the Premises personnel or equipment which
exceeds the standards set forth above or in any other way
interferes with the Building system's ability to perform
adequately its proper functions, supplementary systems may, if
and as needed, at Landlord's option, be provided by Landlord, at
Tenant's expense. Except in the case of emergency or a scheduled
closing of the Building, Landlord shall provide to Tenant
(subject to reasonable security procedures which may be imposed
by Landlord) access to the Building, an elevator and the loading
dock twenty-four hours per day.
b. Landlord shall also provide:
i. Hot water for lavatory purposes and cold water (at
temperatures supplied by the City of Quincy) for drinking,
lavatory, and toilet purposes and hot and cold water for
Tenant's lounge and one (1) residential washing machine. If
Tenant uses water for any purpose other than as set forth in
the preceding sentence, Landlord may assess a reasonable
charge for the additional water so used, or install a water
meter and thereby measure Tenant's water consumption for all
purposes. In the latter event, Tenant shall pay the cost of
the meter and the cost of installation thereof and shall
keep such meter and installation equipment in good working
order and repair. Tenant agrees to pay for water consumed,
as shown on such meter, together with the sewer charge based
on such meter changes, as and when bills are
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rendered, and in default in making such payment Landlord may
pay such charges and collect the same from Tenant as an
additional charge hereunder. All piping and other equipment
and facilities required for use of water outside the
Building core will be installed and maintained by Landlord
at Tenant's sole cost and expense.
ii. Cleaning and janitorial services to the Premises, provided
the same are kept in order by Tenant, in accordance with the
cleaning standards set forth in Schedule CS attached hereto.
iii. Passenger elevator service from the existing passenger
elevator system in common with Landlord and other tenants of
the Building.
7.5 ELECTRICITY
a. Landlord shall supply electricity to the Premises to supply a
requirement not to exceed approximately 5.0 xxxxx per square foot
of Premises Rentable Area for standard single-phase 120 volt
alternating current and Tenant agrees in its use of the Premises
not to exceed such requirement and that its total connected
lighting load will not exceed the maximum from time to time
permitted under applicable governmental regulations. In
addition, Landlord shall provide 220 volt service for Tenant's
refrigerator to be located in the lounge area of the Premises and
one (1) residential clothes dryer as provided in the Tenant's
Plans. Landlord shall purchase and install all lamps, tubes,
bulbs, starters and ballasts for all original fluorescent tubes
within the Premises. All other bulbs, tubes and lighting
fixtures for the Premises shall be provided and installed by
Landlord at Tenant's cost and expense. In order to assure that
the foregoing requirements are not exceeded and to avert possible
adverse affect on the Building's electric system, Tenant shall
not, without Landlord's prior consent, connect any fixtures,
appliances or equipment to the Building's electric distribution
system other than standard office equipment including, without
limitation, personal computers, printers, photocopiers and fax
machines.
b. Landlord shall install at Tenant's expense, which expense shall
be included in the allowance for construction provided by
Landlord, a separate meter which shall measure electric
consumption (including electricity consumed in connection with
the operation of the variable-air-volume (VAV) boxes used to heat
and cool the Premises) in the Premises. Tenant shall pay as
additional rent all amounts billed by the applicable utility
company when due directly to the utility company. If,
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for any reason, such utility charges are not separately metered
at any time during the Term, Tenant shall pay as additional rent
all reasonably allocated charges attributable to the furnishing
of electricity to the Premises.
c. In the computation of Operating Costs, only the cost of
electricity supplied to those portions of the Building other than those intended
to be leased to tenants for their exclusive use and occupancy, or used by the
Building for its own offices, i.e., only those areas which are so-called common
areas, shall be included.
ARTICLE VIII
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES
a. For the purposes of this Article, the term "Tax Year" shall mean
the twelve (12) month period commencing on the July 1 immediately
preceding the Commencement Date and each twelve (12) month period
thereafter during the Term of this Lease; and the term "Taxes"
shall mean real estate taxes assessed with respect to the
Property for any Tax Year. "Taxes" shall exclude (a) federal,
state or local income, franchise or estate taxes and (b) interest
and penalties assessed by reason of Landlord's failure to pay
such real estate taxes when due (provided that Tenant makes
payment to Landlord of such real estate taxes when due, otherwise
Tenant shall be responsible for that portion of interest and
penalties attributable to its late payment). Landlord agrees
that if any special taxes or assessment shall be levied against
the Building, Landlord shall elect to pay such special tax or
assessment over the longest period of time allowed by law.
b. In the event that for any reason, Taxes shall be greater during
any Tax Year than Base Taxes, Tenant shall pay to Landlord, as an
Escalation Charge, an amount equal to:
i. The excess of Taxes over Base Taxes, multiplied by,
ii. The Escalation Factor, such amount to be apportioned for any
fraction of a Tax Year in which the Commencement Date falls
or the Term of this Lease ends.
c. Estimated payments by Tenant on account of Taxes shall be made
monthly and at the time and in the fashion herein provided for
the payment of Basic Rent. The monthly amount so to be paid to
Landlord
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shall equal to one-twelfth (1/12) of the amount required to be
paid (if any) by Tenant pursuant to Paragraph b. above for the
preceding Tax Year. Promptly after receipt by Landlord of bills
for such Taxes, Landlord shall advise Tenant of the amount
thereof and the computation of Tenant's payment on account
thereof. If estimated payments theretofore made by Tenant for
the Tax Year covered by such bills exceed the required payments
on account thereof for such Tax Year, Landlord shall credit the
amount of overpayment against subsequent obligations of Tenant on
account of real estate taxes (or refund such overpayment if the
Term of this Lease has ended and Tenant has no further obligation
to Landlord); but if the required payments on account thereof for
such Tax Year are greater than estimated payments theretofore
made on account thereof for such Tax Year, Tenant shall make
payment to Landlord within thirty (30) days after being so
advised by Landlord. Landlord shall have the same rights and
remedies for the nonpayment by Tenant of any payments due on
account of such Taxes as Landlord has hereunder for the failure
of Tenant to pay Basic Rent.
8.2 ABATEMENT
If Landlord shall receive any tax refund or reimbursement of Taxes or sum
in lieu thereof with respect to any Tax Year, then out of any balance
remaining thereof after deducting Landlord's expenses reasonably incurred
in obtaining such refund, Landlord shall pay to Tenant, provided there
does not then exist a Default of Tenant, an amount equal to such refund
or reimbursement or sum in lieu thereof (exclusive of interest)
multiplied by the Escalation Factor and adjusted for any partial year;
provided, that in no event shall Tenant be entitled to receive more than
the amount of any payments made by Tenant on account of real estate Tax
increases for such Tax Year pursuant to Paragraph b. of Section 8.1 or to
receive any payment if Taxes for any Tax Year are less than Base Taxes.
Provided that Tenant is not then in default under this Lease beyond
applicable grace and cure periods and that Tenant occupies more than 50%
of the Building Rentable Area, Tenant shall have the right, at its cost
and expense, to seek an abatement of real estate taxes provided that
Landlord has elected in writing not to do so within fifteen (15) days
after written request therefor by Tenant.
8.3 ALTERNATE TAXES
a. If some method or type of taxation shall replace the current
method of assessment of real estate taxes, or the type thereof,
the Tenant agrees that Tenant shall pay an equitable share of the
same computed in a fashion consistent with the method of
computation herein provided, to
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the end that Tenant's share thereof shall be, to the maximum
extent practicable, comparable to that which Tenant would bear
under the foregoing provisions.
b. If a tax (other than a Federal or State net income tax) is
assessed on account of the rents or other charges payable by
Tenant to Landlord under this Lease, Tenant agrees to pay the
same within ten (10) days after billing therefor, unless
applicable law prohibits the payment of such tax by Tenant.
Landlord shall have the same rights and remedies for nonpayment
by Tenant of any such amounts as Landlord has hereunder for the
failure of Tenant to pay Basic Rent.
ARTICLE IX
OPERATING EXPENSES
9.1 DEFINITIONS
For the purposes of this Article, the following terms shall have the
following respective meanings:
OPERATING YEAR: Each calendar year in which any part of the Term of this
Lease shall fall.
OPERATING EXPENSES: The aggregate costs or expenses reasonably incurred
by Landlord with respect to the operation, administration, cleaning,
repair, maintenance and management of the Property including, without
limitation, those items enumerated in Exhibit OC annexed hereto, provided
that, if during any portion of the Operating Year for which Operating
Expenses are being computed, less than 95% of the Building Rentable Area
was occupied by tenants, actual operating expenses incurred shall be
reasonably extrapolated by Landlord on an item basis to the estimated
operational expenses that would have been incurred if the Building were
95% occupied for such Operating Year, and such extrapolated amount shall,
for the purposes hereof, be deemed to be the Operating Expenses for such
Operating Year.
9.2 TENANT'S PAYMENT
a. In the event that Operating Expenses for any Operating Year shall
be greater than Base Operating Expenses, Tenant shall pay to
Landlord, as an Escalation Charge, an amount equal to:
i. The excess of the Operating Expenses for such Year over and
above Base Operating Expenses, multiplied by,
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ii. The Escalation Factor, such amount to be apportioned for any
Operating Year in which the Commencement Date falls or the
Term of this Lease ends.
b. Estimated payments by Tenant on account of Operating Expenses
shall be made monthly and at the time and in the fashion herein
provided for the payment of Basic Rent. The monthly amount so to
be paid to Landlord shall be sufficient to provide Landlord by
the end of each Operating Year a sum equal to Tenant's required
payments (if any) on account of Operating Expenses for the
preceding Operating Year. Promptly after the end of each
Operating Year, Landlord shall submit to Tenant a reasonably
detailed accounting of Operating Expenses for such Operating
Year, and Landlord shall certify the accuracy thereof. If
estimated payments theretofore made for such Operating Year by
Tenant exceed Tenant's required payment on account thereof for
such Operating Year, according to such statement, Landlord shall
credit the amount of overpayment against subsequent obligations
of Tenant with respect to Operating Expenses (or refund such
overpayment if the Term of this Lease has ended and Tenant has no
further obligation to Landlord); but, if the required payments on
account thereof for such Operating Year are greater than the
estimated payments (if any) theretofore made on account thereof
for such Operating Year, Tenant shall make payment to Landlord
within ten (10) days after being so advised by Landlord.
Landlord shall have the same rights and remedies for the
nonpayment by Tenant of any payments due on account of Operating
Expenses as Landlord has hereunder for the failure of Tenant to
pay Basic Rent.
c. Tenant shall have the right, no more often than once in an
Operating Year, exercisable within ninety (90) days following the
delivery to Tenant of the accounting referred to in Paragraph
9.2(b) and upon reasonable prior notice to Landlord, to inspect
Landlord's books and records relating to Operating Expenses and
Taxes for the Operating Year covered by such accounting. Tenant
acknowledges and agrees that only employees of Tenant, or
Tenant's certified public accountant or accounting firm (provided
that such accountant or accounting firm is then responsible for
Tenant's general corporate accounting), may conduct any such
inspection, which inspection shall occur at such place and time
(during normal business hours) as Landlord may reasonably
designate. Tenant shall pay for all reasonable expenses incurred
by Landlord in connection with, and relating directly to,
Tenant's inspection of Landlord's books and records, provided
that if such audit discloses an overpayment by Tenant of more
than five percent (5%), Landlord shall reimburse Tenant for its
reasonable third party costs
25
incurred in connection with the audit. In any event, Landlord
shall reimburse Tenant the amount of any overpayment.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY
To the maximum extent this Agreement may be made effective according to
law, Tenant agrees to indemnify and save harmless Landlord from and
against all claims, actions or proceedings of whatever nature arising
from any act, omission or negligence of Tenant or Tenant's contractors,
licensees agents, servants or employees or arising from any accident,
injury or damage whatsoever caused to any person, or to the property of
any person, occurring after the date of this Lease until the end of the
Term of this Lease and thereafter, so long as Tenant is in occupancy of
any part of the Premises, in or about the Premises, or arising from any
accident, injury or damage occurring outside of the Premises but on the
Property, where such accident, damage or injury results or is claimed to
have resulted from an act or omission on the part of Tenant or Tenant's
agents or employees or independent contractors. This indemnity and hold
harmless agreement shall include indemnity against all costs, expenses
and liabilities incurred in or in connection with any such claim, action
or proceeding brought thereon, and the defense thereof.
10.2 PUBLIC LIABILITY INSURANCE
Tenant agrees to maintain in full force from the date upon which Tenant
first enters the Premises for any reason, throughout the Term of this
Lease, and thereafter so long as Tenant is in occupancy of any part of
the Premises, a policy of general liability and property damage insurance
under which Landlord (and such other persons as are in privity of estate
with Landlord as may be set out in notice from Landlord to Tenant from
time to time) and Tenant are named as insureds, and under which the
insurer agrees to indemnify and hold Landlord, and those in privity of
estate with Landlord, harmless from and against all cost, expense and/or
liability arising out of or based upon any and all claims, accidents,
injuries and damages set forth in Section 10.1. Each such policy shall
be non-cancelable and non-amendable with respect to Landlord and
Landlord's said designees without twenty (20) days prior notice to
Landlord and shall be in at least the amounts of the Public Liability
Insurance specified in Section 1.2, and a duplicate original or
certificate thereof evidencing broad form contractual liability,
independent contractor's hazard and completed operation coverage and
waiver of subrogation shall be delivered to Landlord.
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10.3 TENANT'S RISK
To the maximum extent this Agreement may be made effective according to
law, Tenant agrees to use and occupy the Premises and to use such other
portions of the Building as Tenant is herein given the right to use at
Tenant's own risk; and Landlord shall have no responsibility or liability
for any loss of or damage to Tenant's Removable Property. The provisions
of this Section shall be applicable from and after the execution of this
Lease and until the end of the Term of this Lease, and during such
further period as Tenant may use or be in occupancy of any part of the
Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES
To the maximum extent this Agreement may be made effective according to
law, Tenant agrees that Landlord shall not be responsible or liable to
Tenant, or to those claiming by, through or under Tenant, for any loss or
damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any part of the Premises adjacent
to or connecting with the Premises or any part of the Property or
otherwise.
10.5 LANDLORD'S INSURANCE
Landlord shall take out and maintain throughout the Term of this Lease
commercial general liability insurance for the Building and all risk fire
and casualty insurance in amounts customarily carried by landlords with
respect to similar buildings in the area with such policy limits as
Landlord may consider appropriate. Upon request by Tenant, Landlord
shall provide a certificate evidencing the foregoing insurance.
10.6 WAIVER OF SUBROGATION
Any insurance carried by either party with respect to the Property or
property therein or occurrences thereon shall include a clause or
endorsement denying to the insurer rights of subrogation against the
other party to the extent rights have been waived by the insured prior to
occurrence of injury or loss. Each party, notwithstanding any provisions
of this Lease to the contrary, hereby waives any rights of recovery
against the other for injury or loss due to hazards covered by such
insurance to the extent of the indemnification received thereunder.
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ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS
Upon reasonable prior notice to Tenant (except in the case of emergency
where no notice shall be required and Landlord's right of access shall be
immediate) Landlord shall have the right to enter the Premises at all
reasonable hours for the purpose of inspecting or making repairs to the
same, and Landlord shall also have the right, upon reasonable prior
notice to Tenant, to make access available at all reasonable hours to
prospective or existing mortgagees, purchasers or tenants of any part of
the Property provided that prospective mortgagees and purchasers shall be
accompanied by a representative of Tenant (provided that Tenant shall
make a representative reasonably available for such purpose).
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT
If the Premises shall be damaged by fire, casualty in the Building, Basic
Rent and Escalation Charges payable by Tenant shall xxxxx proportionately
for the period in which, by reason of such damage, there is substantial
interference with Tenant's use of the Premises, having regard to the
extent to which Tenant may be required to discontinue Tenant's use of all
or a portion of the Premises, but such abatement or reduction shall end
if and when Landlord shall have substantially restored the Premises to
the condition in which they were prior to such damage. If the Premises
shall be affected by any exercise of the power of eminent domain, Basic
Rent and Escalation Charges payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the
loss of use thereof suffered by Tenant.
12.2 RIGHT OF TERMINATION
If the Premises or the Property are substantially damaged by fire or
casualty (the term "substantially damaged" meaning damage of such a
character that the same cannot, in ordinary course, reasonably be
expected to be repaired within six (6) months from the time that repair
work would commence), or, if as a result of any exercise of the right of
eminent domain more than thirty percent (30%) of the Building or the
Property is taken or a material portion of the parking is taken or there
is a material impact on access to the Property (collectively, a
"Taking"), then either party shall have the right to terminate this Lease
(even if Landlord's entire interest in the Premises may have been
28
divested) by giving to the other party notice of such party's election so
to do within ninety (90) days after the occurrence of such casualty or
the effective date of such Taking, whereupon this Lease shall terminate
thirty (30) days after the date of such notice with the same force and
effect as if such date were the date originally established as the
expiration date hereof.
12.3 RESTORATION
If this Lease shall not be terminated pursuant to Section 12.2, Landlord
shall thereafter use due diligence to restore the Premises to proper
condition for Tenant's use and occupation, provided that Landlord's
obligation shall be limited to the amount of insurance proceeds available
therefor. If, for any reason (including, without limitation,
insufficiency or unavailability of insurance proceeds), such restoration
shall not be substantially completed within six (6) months from the time
that repair work would commence in the case of damage by fire or casualty
or from the effective date of the Taking, as applicable (which six (6)
month period may be extended for such periods of time as Landlord is
prevented from proceeding with or completing such restoration for reasons
of force majeure, but in no event for more than an additional three (3)
months), Tenant shall have the right to terminate this Lease by giving
notice to Landlord thereof within thirty (30) days after the expiration
of such period (as so extended). Upon the giving of such notice, this
Lease shall cease and come to an end without further liability or
obligation on the part of either party unless, within such thirty (30)
day period, Landlord substantially completes such restoration. Such
right of termination shall be Tenant's sole and exclusive remedy at law
or in equity for Landlord's failure so to complete such restoration.
12.4 AWARD
Landlord shall have and hereby reserves and excepts, and Tenant hereby
grants and assigns to Landlord, all rights to recover for damage to the
Property and the leasehold interest hereby created, and to compensation
accrued or hereafter to accrue by reason of such taking, damage or
destruction, and by way of confirming the foregoing, Tenant hereby grants
and assigns, and covenants with Landlord to grant and assign to Landlord,
all rights to such damages or compensation. Nothing contained herein
shall be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any of Tenant's Removable Property
installed in the Premises by Tenant at Tenant's expense and for
relocation expenses, provided that such action shall not affect the
amount of compensation otherwise recoverable by Landlord from the taking
authority.
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ARTICLE XIII
DEFAULT
13.1 Tenant's Default
a. If at any time subsequent to the date of this Lease any one or
more of the following events (herein referred to as a "Default of
Tenant") shall happen:
i. Tenant shall fail to pay the Basic Rent, Escalation Charges
or other charges hereunder when due and such failure shall
continue for five (5) Business Days after notice to Tenant
from Landlord; or
ii. Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed
or observed and Tenant shall fail to remedy the same within
thirty (30) days after notice to Tenant specifying such
neglect or failure, or if such failure is of such a nature
that Tenant cannot reasonably remedy the same within such
thirty (30) day period, Tenant shall fail to commence
promptly to remedy the same and to prosecute such remedy to
completion with diligence and continuity but in no event
shall such period exceed ninety (90) days; or
iii. Tenant's leasehold interest in the Premises shall be taken
on execution or by other process of law directed against
Tenant; or
iv. Tenant shall make an assignment for the benefit of creditors
or shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or
similar relief for itself under any present or future
Federal, State or other statute, law or regulation for the
relief of debtors, or shall seek or consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of its properties,
or shall admit in writing its inability to pay its debts
generally as they become due; or
v. A petition shall be filed against Tenant in bankruptcy or
under any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or
similar
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relief under any present or future Federal, State or other
statute, law or regulation and shall remain undismissed or
unstayed for an aggregate of sixty (60) days (whether or not
consecutive), or if any debtor in possession (whether or not
Tenant) trustee, receiver or liquidator of Tenant or of all
or any substantial part of its properties or of the Premises
shall be appointed without the consent or acquiescence of
Tenant and such appointment shall remain unvacated or
unstayed for an aggregate of sixty (60) days (whether or not
consecutive);
vi. Or if Tenant dissolves or is dissolved or liquidated or
adopts any plan or commences any proceeding, the result of
which is intended to include dissolution or liquidation;
vii. Then in any such case:
(1) If such Default of Tenant shall occur prior to the
Commencement Date, this Lease shall IPSO FACTO, and
without further act on the part of Landlord, terminate;
and
(2) If such Default of Tenant shall occur after the
Commencement Date, Landlord may terminate this Lease by
notice to Tenant, specifying a date not less than ten
(10) days after the giving of such notice on which this
Lease shall terminate and this Lease shall come to an
end on the date specified therein as fully and
completely as if such date were the date herein
originally fixed for the expiration of the Term of this
Lease (Tenant hereby waiving any rights of redemption
under M.G.L. c. 186, or otherwise), and Tenant will
then quit and surrender the Premises to Landlord, but
Tenant shall remain liable as hereinafter provided.
b. If this Lease shall have been terminated as provided in this
Article, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the Premises
shall be taken or occupied by someone other than Tenant, then
Landlord may, without notice, re-enter the Premises, either by
force, summary proceedings, ejectment or otherwise, and remove
and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made, and
Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end.
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c. In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the
time of such termination, and thereafter Tenant, until the end of
what would have been the Term of this Lease in the absence of
such termination, and whether or not the Premises shall have been
re-let, shall be liable to Landlord for, and shall pay to
Landlord, as current damages, the Basic Rent, Escalation Charges
and other sums which would be payable hereunder if such
termination had not occurred, less the net proceeds, if any, of
any re-letting of the Premises, after deducting all expenses in
connection with such re-letting, including, without limitation,
all repossession costs, brokerage commissions, legal expenses,
attorneys' fees, advertising, expenses of employees, alteration
costs and expenses of preparation for such re-letting. Tenant
shall pay such current damages to Landlord monthly on the days
which the Basic Rent would have been payable hereunder if this
Lease had not been terminated.
d. At any time after such termination, whether or not Landlord shall
have collected any such current damages, Landlord may demand, as
liquidated final damages and in lieu of all such current damages
beyond the date of such demand, and Tenant shall pay to Landlord
an amount equal to the excess, if any, of the Basic Rent,
Escalation Charges and other sums as hereinbefore provided which
would be payable hereunder from the date of such demand (assuming
that, for the purposes of this paragraph, annual payments by
Tenant on account of Taxes and Operating Expenses would be the
same as the payments required for the immediately preceding
Operating or Tax Year) for what remained, over the Term of this
Lease if the same remained in effect, over the then fair net
rental value of the Premises for the same period, such amount to
be discounted to its net present value.
Nothing contained in this Lease shall limit or prejudice the
right of Landlord to prove for and obtain in proceedings for
bankruptcy or insolvency by reason of the termination of this
Lease, an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or
not the amount be greater, equal to or less than the amount of
the loss or damages referred to above.
e. In case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord may:
i. Re-let the Premises or any part or parts thereof, either in
the name of Landlord or otherwise, for a term or terms which
may at Landlord's option be equal to or less than or exceed
the period
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which would otherwise have constituted the balance of the
Term of this Lease and may grant concessions or free rent to
the extent that Landlord considers advisable and necessary
to re-let the same; and
ii. May make such reasonable alterations, repairs and
decorations in the Premises as Landlord in its sole judgment
considers advisable and necessary for the purpose of
re-letting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to
release Tenant from liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatsoever
for failure to re-let the Premises, or, in the event that
the Premises are re-let, for failure to collect the rent
under such re-letting. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present
or future laws in the event of Tenant being evicted or
dispossessed, or in the event of Landlord obtaining
possession of the Premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease.
f. If a Guarantor of this Lease is named in Section 1.2, the
happening of any of the events described in Paragraphs a.iv or
a.v of this Section 13.1 with respect to the Guarantor shall
constitute a Default of Tenant hereunder.
g. The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress
to which Landlord may at any time be entitled lawfully, and
Landlord may invoke any remedy (including the remedy of specific
performance) allowed at law or in equity as if specific remedies
were not herein provided for.
h. All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses) in
enforcing its rights hereunder or occasioned by any Default of
Tenant shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT
Landlord shall in no event be in default in the performance of any of
Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such default,
after notice by Tenant to
33
Landlord specifying wherein Landlord has failed to perform any such
obligations.
ARTICLE XIV
MISCELLANEOUS PROVISIONS AND
TENANT'S ADDITIONAL COVENANTS
14.1 EXTRA HAZARDOUS USE
Tenant covenants and agrees that Tenant will not do or permit anything to
be done in or upon the Premises, or bring in anything or keep anything
therein, which shall increase the rate of property or liability insurance
on the Premises or of the Building above the standard rate applicable to
premises occupied for Permitted Uses; and Tenant further agrees that, in
the event that Tenant shall do any of the foregoing, Tenant will promptly
pay to Landlord, on demand, any such increase resulting therefrom, which
shall be due and payable as an additional charge hereunder.
14.2 WAIVER
a. Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long
the same may continue, shall never be a waiver by Tenant or
Landlord, respectively, of any of the other's rights hereunder.
Further, no waiver at any time of any of the provisions hereof by
Landlord or Tenant shall be construed as a waiver of any of the
other provisions hereof, and a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at any
subsequent time of the same provisions. The consent or approval
of Landlord or Tenant to or of any action by the other requiring
such consent or approval shall not be construed to waive or
render unnecessary Landlord's or Tenant's consent or approval to
or of any subsequent similar act by the other.
b. No payment by Tenant, or acceptance by Landlord, of a lesser
amount than shall be due from Tenant to Landlord shall be treated
otherwise than as a payment on account. The acceptance by
Landlord of a check for a lesser amount with an endorsement or
statement thereon, or upon any letter accompanying such a check,
that such lesser amount is payment in full, shall be given no
effect, and Landlord may accept such check without prejudice to
any other rights or remedies which Landlord may have against
Tenant.
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14.3 COVENANT OF QUIET ENJOYMENT
Tenant, subject to the terms and provisions of this Lease, on payment of
the Basic Rent and Escalation Charges and other charges hereunder and
observing, keeping and performing all of the other terms and provisions
of this Lease on Tenant's part to be observed, kept and performed, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises
during the term hereof, without hindrance or ejection by any persons
lawfully claiming under Landlord to have title to the Premises superior
to Tenant; the foregoing covenant of quiet enjoyment is in lieu of any
other covenant, express or implied.
14.4 LANDLORD'S LIABILITY
a. No owner of the Property shall be liable under this Lease except
for breaches of Landlord's obligations occurring while owner of
the Property. The obligations of Landlord shall be binding upon
the assets of Landlord which comprise the Property but not upon
other assets of Landlord. No individual partner, trustee,
stockholder, officer, director, employee, member or beneficiary
of Landlord shall be personally liable under this Lease and
Tenant shall look solely to Landlord's interest in the Property
in pursuit of its remedies upon an event of default hereunder,
and the general assets of Landlord and of the individual
partners, trustees, stockholders, officers, employees, members or
beneficiaries of Landlord shall not be subject to levy, execution
or other enforcement procedure for the satisfaction of the
remedies of Tenant.
b. With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for
failure to furnish the same when prevented from doing so by
strike, lockout, breakdown, accident, order or regulation of or
by any governmental authority, or failure of supply, or inability
by the exercise of reasonable diligence to obtain supplies, parts
or employees necessary to furnish such services, or because of
war or other emergency, or for any cause beyond Landlord's
reasonable control, or for cause due to any act or neglect of
Tenant or Tenant's servants, agents, employees, licensees or any
person claiming by, through or under Tenant.
c. In no event shall Landlord ever be liable to Tenant for any
indirect or consequential damages suffered by Tenant from
whatever cause.
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14.5 NOTICE TO MORTGAGEE
After receiving notice from any person, firm or other entity that it
holds a mortgage which includes the Premises as part of the mortgaged
premises, no notice from Tenant to Landlord shall be effective unless and
until a copy of the same is given to such holder (provided Tenant shall
have been furnished with the name and address of such holder), and the
curing of any of Landlord's defaults by such holder shall be treated as
performance by Landlord.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLES
a. With reference to any assignment by Landlord of Landlord's
interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to
the holder of a mortgage on property which includes the Premises,
Tenant agrees that the execution thereof by Landlord, and the
acceptance thereof by the holder of such mortgage shall never be
treated as an assumption by such holder of any of the obligations
of Landlord hereunder unless such holder shall, by notice sent to
Tenant, specifically otherwise elect and that, except as
aforesaid, such holder shall be treated as having assumed
Landlord's obligations hereunder only upon foreclosure of such
holder's mortgage and the taking of possession of the Premises.
b. In no event shall the acquisition of title to the Property by a
purchaser which, simultaneously therewith, leases the entire
Property back to the seller thereof be treated as an assumption
by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee,
and its successors from time to time in title, for performance of
Landlord's obligations hereunder. In any event, this Lease shall
be subject and subordinate to the lease between such
purchaser-lessor and seller-lessee. For all purposes, such
seller-lessee, and its successors in title, shall be the Landlord
hereunder unless and until Landlord's position shall have been
assumed by such purchaser-lessor.
c. Tenant hereby agrees that, except as provided in paragraph b. of
this Section, in the event of any transfer of title to the
Property by Landlord, Landlord shall thereafter be entirely freed
and relieved from the performance and observance of all covenants
and obligations hereunder.
d. Tenant hereby agrees not to look to the mortgagee, as mortgagee,
mortgagee in possession, or successor in title to the property,
for accountability for any security deposit required by the
Landlord
36
hereunder, unless said sums have actually been received by said
mortgagee as security for the tenant's performance of this Lease.
e. Tenant shall not pay rent more than one month in advance.
14.7 RULES AND REGULATIONS
Tenant shall abide by rules and regulations set forth on Exhibit D hereto
and any other rules and regulations established by Landlord from time to
time, it being agreed that such rules and regulations will be established
and applied by Landlord in a non-discriminatory fashion, such that all
rules and regulations shall be generally applicable to other tenants, of
similar nature to the Tenant named herein, of the Building. Landlord
agrees to use reasonable efforts to insure that any such rules and
regulations are uniformly enforced, but Landlord shall not be liable to
Tenant for violation of the same by any other tenant or occupant of the
Building, or persons having business with them.
14.8 ADDITIONAL CHARGES
If Tenant shall fail to pay when due any sums under this Lease designated
as an additional charge, Landlord shall have the same rights and remedies
as Landlord has hereunder for failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease, or the application thereof to any
person or circumstance shall, to the extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision
to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
14.10 PROVISIONS BINDING, ETC.
Except as herein otherwise provided, the terms hereof shall be binding
upon and shall inure to the benefit of the successors and assigns,
respectively, of Landlord and Tenant and, if Tenant shall be an
individual, upon and to his heirs, executors, administrators, successors
and assigns. Each term and each provision of this Lease to be performed
by Tenant shall be construed to be both a covenant and a condition. The
reference contained to successors and assigns of Tenant is not intended
to constitute a consent to assignment by Tenant, but has reference only
to those instances in which Landlord may later
37
give consent to a particular assignment as required by those provisions
of Article VI hereof.
14.11 RECORDING
Tenant agrees not to record this Lease, but each party hereto agrees, on
the request of the other, to execute a so-called Notice of Lease in form
recordable and complying with applicable law and reasonably satisfactory
to Landlord's attorneys. In no event shall such document set forth the
rent or other charges payable by Tenant under this Lease; and any such
document shall expressly state that it is executed pursuant to the
provisions contained in this Lease, and is not intended to vary the terms
and conditions of this Lease. Upon termination of this Lease, Tenant
shall execute an instrument in recordable form acknowledging the date of
termination.
14.12 NOTICES
Whenever, by the terms of this Lease, notices shall or may be given
either to Landlord or to Tenant, such notice shall be in writing and
addressed as follows:
IF INTENDED FOR LANDLORD:
Address to Landlord at Landlord's Original Address (or to such other
address or addresses as may from time to time hereafter be designated
by Landlord by like notice).
IF INTENDED FOR TENANT:
Address to Tenant at Tenant's Original Address (or to such other
address or addresses as may from time to time hereafter be designated
by Landlord by like notice).
All such notices so addressed shall be effective (i) when delivered, if
hand delivered, or (ii) one (1) day after deposit with a recognized
overnight delivery service or (iii) three (3) days after deposit with the
U.S. Postal Service if mailed by registered or certified mail, postage
prepaid, return receipt requested.
14.13 WHEN LEASE BECOMES BINDING
The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for, the
Premises, and this document shall become effective and binding only upon
the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations,
38
representations and understandings between Landlord and Tenant are
incorporated herein and this Lease expressly supersedes any proposals or
other written documents relating hereto. This Lease may be modified or
altered only by written agreement between Landlord and Tenant, and no act
or omission of any employee or agent of Landlord shall alter, change or
modify any of the provisions hereof.
14.14 PARAGRAPH HEADINGS
The paragraph headings throughout this instrument are for convenience and
reference only, and the words contained therein shall in no way be held
to explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Lease.
14.15 RIGHTS OF MORTGAGEE
This Lease shall be subject and subordinate to any mortgage from time to
time encumbering the Property, whether executed and delivered prior to or
subsequent to the date of this Lease provided that Tenant shall have
received a commercially reasonable subordination, non-disturbance and
attornment agreement in recordable form executed by the holder of any
such mortgage. This section 14.15 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute such instruments in confirmation of
the foregoing agreement as such holder may reasonably request. In the
event that any mortgagee or its respective successor in title shall
succeed to the interest of Landlord, then this Lease shall continue in
full force and effect and Tenant shall and does hereby agree to attorn to
such mortgagee or successor and to recognize such mortgagee or successor
as its Landlord. Landlord warrants and represents to Tenant that at the
date of execution of this Lease there is no mortgage encumbering the
Property.
14.16 STATUS REPORT
Landlord and Tenant agree from time to time, upon not less than fifteen
(15) days prior written request by the other party, to execute,
acknowledge and deliver to the requesting party a statement in writing
certifying that this Lease is unmodified and in full force and effect and
that there are no uncured defaults of Landlord or Tenant under this
Lease, and if Landlord is the requesting party, that Tenant has no
defenses, offsets or counterclaims against its obligations to pay the
Base Rent, Escalation Charges and other charges hereunder and to perform
its other covenants under this Lease and that there are no uncured
defaults of the Landlord or Tenant under this Lease (or, if there have
been any modifications that the same is in full force and effect as
39
modified and stating the modifications and, if there are any defenses,
offsets, counterclaims, or defaults, setting them forth in reasonable
detail), and the dates to which the Base Rent, Escalation Charges and
other charges hereunder have been paid. Any such statement delivered
pursuant to this Section 8.8 may be relied upon by a prospective
purchaser or mortgagee of the Premises or any prospective assignee of any
mortgagee of the Premises or any prospective assignee of Tenant's
interest in the Premises, as the case may be. Failure of a party to
respond to such request within such time shall be deemed an
acknowledgment by such party that the facts recited in such request are
correct.
14.17 SECURITY DEPOSIT
If, in Section 1.2 hereof, a security deposit is specified, Tenant agrees
that the same will be paid upon execution and delivery of this Lease, and
that Landlord shall hold the same throughout the term of this Lease as
security for the performance by Tenant of all obligations on the part of
Tenant hereunder. Landlord shall have the right from time to time
without prejudice to any other remedy Landlord may have on account
thereof, to apply such deposit, or any part thereof, to Landlord's
damages arising from any default on the part of Tenant. There then
existing no Default of Tenant, Landlord shall return the deposit, or so
much thereof as shall have theretofore been applied in accordance with
the terms of this Section 14.17, to Tenant on the expiration or earlier
termination of the Term of this Lease and surrender of possession of the
Premises by Tenant to Landlord at such time. While Landlord holds such
deposit, Landlord shall invest the deposit in a mutual fund which invests
only in government securities, with interest accruing to the benefit of
Tenant. Interest shall be paid to Tenant on an annual basis. If
Landlord conveys Landlord's interest under this Lease, the deposit, or
any part thereof not previously applied, may be turned over by Landlord
to Landlord's grantee, and, if so turned over, Tenant agrees to look
solely to such grantee for proper application of the deposit in
accordance with the terms of this Section 14.17, and the return thereof
in accordance herewith. The holder of a mortgage shall not be
responsible to Tenant for the return or application of any such deposit,
whether or not it succeeds to the position of Landlord hereunder, unless
such deposit shall have been received in hand by such holder.
14.18 REMEDYING DEFAULTS; LATE PAYMENTS
If Tenant shall at any time default in the performance of any obligation
under this Lease, Landlord shall have the right, but not the obligation,
to enter upon the Premises and to perform such obligation notwithstanding
the fact that no specific provision for such substituted performance is
made in the Lease with respect to such default. In performing such
obligation, Landlord may make
40
any payment of money or perform any other act. In the event of the
exercise of such right by Landlord, Tenant agrees to pay to Landlord
forthwith upon demand all such sums, together with interest thereon at a
rate equal to 3% over the prime rate in effect from time to time, as
published in the Wall Street Journal (but in no event less than 18% per
annum or more than the maximum rate allowed by law), as an additional
charge. Any payment of Basic Rent, Escalation Charges or other charges
payable hereunder not paid within five (5) days of the date when due
shall bear interest at a rate equal to 3% over the prime rate in effect
from time to time, as published in the Wall Street Journal (but in no
event less than 18% per annum or more than the maximum rate allowed by
law) from the due date thereof, as an additional charge.
14.19 HOLDING OVER
Any holding over by Tenant after the expiration of the term of this Lease
shall be treated as a daily tenancy at sufferance at a rate equal to 1
1/2 times the Basic Rent plus Escalation Charges and other charges herein
provided (prorated on a daily basis) and shall otherwise be on the terms
and conditions set forth in this Lease as far as applicable.
14.20 WAIVER OF SUBROGATION
Insofar as, and to the extent that, the following provision may be
effective without invalidating or making it impossible to secure
insurance coverage obtainable from responsible insurance companies doing
business in the locality in which the Property is located (even though
extra premium may result therefrom) Landlord and Tenant mutually agree
that, with respect to any hazard, the loss from which is covered by
insurance then being carried by them, respectively, the one carrying such
insurance and suffering such loss releases the other of and from any and
all claims with respect to such loss to the extent of the insurance
proceeds paid with respect thereto; and they further mutually agree that
their respective insurance companies shall have no right of subrogation
against the other on account thereof.
14.21 SURRENDER OF PREMISES
Upon the expiration or earlier termination of the Term of this Lease,
Tenant shall peaceably quit and surrender to Landlord the Premises in
neat and clean condition and in good order, condition and repair,
together with all alterations, additions and improvements which may have
been made or installed in, on or to the Premises prior to or during the
Term of this Lease, excepting only ordinary wear and use and damage by
fire or other casualty for which, under other provisions of this Lease,
Tenant has no responsibility of repair or restoration. Tenant shall
remove all of Tenant's Removable Property and (i) to
41
the extent specified by Landlord pursuant to Paragraph 5.2, all
Improvements made by Tenant and (ii) with respect to improvements made by
Tenant not requiring Landlord's consent; and Tenant shall repair any
damages to the Premises or the Building caused by such removal.
Notwithstanding anything in this Lease to the contrary, Tenant shall have
no obligation to remove Building Standard Office Improvements from the
Premises. Any of Tenant's Removable Property which shall remain in the
Building or on the Premises after the expiration or termination of the
Term of this Lease shall be deemed conclusively to have been abandoned,
and either may be retained by Landlord as its property or may be disposed
of in such manner as Landlord may see fit, at Tenant's sole cost and
expense.
14.22 BROKERAGE
Tenant warrants and represents that Tenant has dealt with no broker
except the Xxxxxx Group and Xxxxx Xxxxxx Xxxxx & Partners in connection
with the consummation of this Lease and, in the event of any other
brokerage claims against Landlord predicated upon prior dealings with
Tenant, Tenant agrees to defend the same and indemnify Landlord against
any such claim.
14.23 ENVIRONMENTAL COMPLIANCE
Tenant shall not cause any hazardous or toxic wastes, hazardous or toxic
substances or hazardous or toxic materials (collectively, "Hazardous
Materials") to be used, generated, stored or disposed of on, under or
about, or transported to or from, the Premises (collectively, "Hazardous
Materials Activities") without first receiving Landlord's written
consent, which may be withheld for any reason and revoked at any time.
If Landlord consents to any such Hazardous Materials Activities, Tenant
shall conduct them in strict compliance (at Tenant's expense) with all
applicable Regulations, as hereinafter defined, and using all necessary
and appropriate precautions. Landlord shall not be liable to Tenant for
any Hazardous Materials Activities by Tenant, Tenant's employees, agents,
contractors, licensees or invitees, whether or not consented to by
Landlord. Tenant shall indemnify, defend with counsel acceptable to
Landlord and hold Landlord harmless from and against any claims, damages,
costs and liabilities, arising out of Tenant's Hazardous Materials
Activities. For purposes hereof, Hazardous Materials shall include but
not be limited to substances defined as "hazardous substances," "toxic
substances," or "hazardous wastes" in the federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended; the federal Hazardous Materials Transportation Act, as amended;
and the federal Resource Conservation and Recovery Act, as amended
("RCRA"); those substances defined as "hazardous wastes" in the
Massachusetts Hazardous Waste Facility Siting Act, as amended
(Massachusetts General Laws Chapter 21D); those
42
substances defined as "hazardous materials" or "oil" in Massachusetts
General Laws Chapter 21E, as amended; and as such substances are defined
in any regulations adopted and publications promulgated pursuant to said
laws (collectively, "Regulations"). Prior to using, storing or
maintaining any Hazardous Materials on or about the Premises, Tenant
shall provide Landlord with a list of the types and quantities thereof,
and shall update such list as necessary for continued accuracy. Tenant
shall also provide Landlord with a copy of any Hazardous Materials
inventory statement required by any applicable Regulations, and any
update filed in accordance with any applicable Regulations. If Tenant's
activities violate or create a risk of violation of any Regulations,
Tenant shall cease such activities immediately upon notice from Landlord.
Tenant shall immediately notify Landlord both by telephone and in writing
of any spill or unauthorized discharge of Hazardous Materials or of any
condition constituting an imminent hazard under any Regulations.
Landlord, Landlord's representatives and employees may enter the Premises
at any time during the Term to inspect Tenant's compliance herewith, and
may disclose any violation of any Regulations to any governmental agency
with jurisdiction. Nothing herein shall prohibit Tenant form using
minimal quantities of cleaning fluid and office supplies which may
constitute Hazardous Materials but which are customarily present in
premises devoted to office use, provided that such use is in compliance
with all applicable laws and subject to all of the other provisions of
this SECTION 14.24.
14.24 EXHIBITS
Exhibits D, CS, LW and FP attached hereto are hereby incorporated by
reference as fully as if set forth herein in full.
14.25 GOVERNING LAW
This Lease shall be governed exclusively by the provisions hereof and by
the Laws of the Commonwealth of Massachusetts, as the same may from time
to time exist.
14.26 EVIDENCE OF AUTHORITY.
If Tenant is an entity, Tenant shall, simultaneously with the delivery to
Landlord of this Lease, deliver to Landlord a Secretary's Certificate or
similar instrument evidencing that the execution of this Lease by Tenant
has been properly authorized and that the individual executing this Lease
on behalf of Tenant is authorized to do so.
43
ARTICLE XV
RIGHTS OF FIRST OFFER; OPTION TO EXTEND
15.1 RIGHTS OF FIRST OFFER.
15.1.1 Landlord is in the process of marketing for lease the third floor
of the Building which is the subject of this Section 15.1.1 (the "Third Floor
Offer Space"). The provisions of this Section shall not apply to the initial
leasing of the Third Floor Offer Space after the date hereof or to any rights of
extension contained in such initial lease(s), nor shall this Section 15.1.1
apply to any other portion of the Building.
Provided that there is at least one year remaining in the Term of this
Lease and that Tenant is not in default in the performance or observance of any
of the terms and provisions of this Lease on the part of Tenant to be performed
or observed beyond applicable grace and cure periods, if Landlord intends to
market for lease all or any portion of the Third Floor Offer Space and such
space is at the time subject to Tenant's rights under this Section, then
Landlord will present a term sheet (the "Third Floor Offer") for the leasing of
such space to Tenant at fair market rent, as determined by Landlord, and on such
other terms and conditions as Landlord may determine. Except as otherwise set
forth in the Third Floor Offer, the Third Floor Offer to lease such space shall
be on the terms and conditions set forth herein.
Upon its receipt of the Third Floor Offer, Tenant shall have ten (10)
business days to accept or reject the Third Floor Offer. If Tenant accepts the
Third Floor Offer within said ten (10) business day period, Landlord and Tenant
shall execute an amendment to this Lease which incorporates the Third Floor
Offer Space on the terms set forth therein within fifteen (15) days of Tenant's
acceptance of said Third Floor Offer. In the event that Tenant does not accept
said Third Floor Offer within said ten (10) business day period or Landlord and
Tenant do not execute a lease on the terms therein set forth within said fifteen
(15) day period, then Landlord shall have the right to lease to any other party
said Third Floor Offer Space on such terms and conditions not materially more
favorable than those contained in the Third Floor Offer. As used herein,
"materially more favorable" shall include a rental rate less than ninety percent
(90%) of that contained in the Third Floor Offer.
15.1.2 Landlord is also in the process of marketing for lease the second
floor of the Building which is the subject of this Section 15.1.2 (the "Second
Floor Offer Space"). The provisions of this Section shall not apply to the
initial leasing of the Second Floor Offer Space after the date hereof or to any
rights of extension contained in such initial lease(s), nor shall this Section
15.1.2 apply to any other portion of the Building.
44
Provided that Tenant has not previously rejected a Third Floor Offer from
Landlord (or, if Tenant had rejected a prior Third Floor Offer, Tenant has since
leased from Landlord space located on the third floor of the Building pursuant
to a subsequent Third Floor Offer), that there is at least one year remaining in
the Term of this Lease and that Tenant is not in default in the performance or
observance of any of the terms and provisions of this Lease on the part of
Tenant to be performed or observed beyond applicable grace and cure periods, if
Landlord intends to market for lease all or any portion of the Second Floor
Offer Space and such space is at the time subject to Tenant's rights under this
Section, then Landlord will present a term sheet (the "Second Floor Offer") for
the leasing of such space to Tenant at fair market rent, as determined by
Landlord, and on such other terms and conditions as Landlord may determine.
Except as otherwise set forth in the Second Floor Offer, the Second Floor Offer
to lease such space shall be on the terms and conditions set forth herein.
Upon its receipt of the Second Floor Offer, Tenant shall have ten (10)
business days to accept or reject the Second Floor Offer. If Tenant accepts the
Second Floor Offer within said ten (10) business day period, Landlord and Tenant
shall execute an amendment to this Lease which incorporates the Second Floor
Offer Space on the terms set forth therein within fifteen (15) days of Tenant's
acceptance of said Second Floor Offer. In the event that Tenant does not accept
said Second Floor Offer within said ten (10) business day period or Landlord and
Tenant do not execute a lease on the terms therein set forth within said fifteen
(15) day period, then Landlord shall have the right to lease to any other party
said Second Floor Offer Space on such terms and conditions not materially more
favorable than those contained in the Second Floor Offer. As used herein,
"materially more favorable" shall include a rental rate less than ninety percent
(90%) of that contained in the Second Floor Offer.
15.2 TENANT'S OPTION TO EXTEND THE TERM OF THIS LEASE.
Provided that at the time of the exercise of this option and at the
beginning of the extension period (i) Tenant is not in default under this Lease
in the performance or observance of any of the terms and provisions of this
Lease on the part of Tenant to be performed or observed beyond applicable grace
and cure periods, (ii) this Lease has otherwise not been terminated, and (iii)
this Lease has not been assigned nor is any portion of the Premises under
sublease (excluding assignments or sublets to Affiliates (as defined in Article
VI), then Tenant shall the options to extend the Term of this Lease for two (2)
periods of five (5) years each, commencing at the expiration of the Term of this
Lease (the "Extension Option"). If Tenant chooses to exercise such option(s)
Tenant shall do so by written notice to Landlord ("Tenant's Extension Notice")
given no earlier than eighteen (18) months and no later than twelve (12) months
prior to the expiration of the Term of this Lease. Failure of Tenant to
exercise such option in a timely manner shall terminate Tenant's right to lease
and occupy the Premises beyond the Term, and shall terminate all further rights
under
45
the Extension Option set forth in this Section 15.2. The terms and conditions
of this Lease during any such extension shall be the same as contained in this
Lease except that Landlord shall have no obligation to make, or to provide any
allowance for, tenant improvements as may be described in this Lease, and the
Base Rent shall be adjusted to be the greater of (i) ninety five percent (95%)
of the then Fair Market Rent (defined below), or (ii) the Base Rent charged
during the year immediately preceding the extension period, and Tenant shall
have no additional options to extend the Term except as described herein.
No later than fifteen (15) days after the date Landlord receives Tenant's
Extension Notice (the "Landlord's Response Date"), Landlord shall propose a fair
market rent for the Premises (the "Landlord's Proposed Fair Market Rent") and
give written notice thereof to Tenant. "Fair Market Rent" for purposes of this
Lease shall mean the rental income that the Premises would most probably command
on the open market as indicated by current rentals being paid for comparable
space within the Boston metropolitan area (as of the time such rental will
become effective), giving due consideration to all matters as are customarily
and appropriately considered by landlords and tenants engaged in leasing similar
space in the geographic area in which the Building is located as of the time of
such determination and the terms of this Lease.
Tenant shall notify Landlord in writing within fifteen (15) days of
Landlord's notice containing Landlord's Proposed Fair Market Rent as to whether
Tenant is accepting or rejecting Landlord's Proposed Fair Market Rent ("Tenant's
Notice"). If Tenant fails to provide Tenant's Notice to Landlord within such
fifteen (15) day period, Tenant shall be deemed to have accepted Landlord's
Proposed Fair Market Rent, which shall be the Fair Market Rent for the purposes
of the first paragraph of this Section. If Tenant rejects Landlord's Proposed
Fair Market Rent (a "Tenant's Objection Notice"), Tenant shall propose a fair
market rent for the Premises in such notice (the "Tenant's Proposed Fair Market
Rent"). Landlord and Tenant shall attempt to reach agreement with respect to
the Fair Market Rent within fifteen (15) days of the date of Tenant's Objection
Notice. If Landlord and Tenant fail to agree within such fifteen (15) day
period, the Fair Market Rent shall be determined by the appraisal procedure
described below.
Unless Landlord and Tenant have agreed in writing to the Fair Market Rent
within fifteen (15) days after Tenant's objection notice, Landlord and Tenant,
within fifteen (15) days after Tenant's objection notice, shall jointly appoint
a single MAI appraiser with experience in commercial real estate including at
least ten (10) years of experience in appraising office space in the
metropolitan office rental market in which the Building is located and who is
hereinafter referred to as an "appraiser." Within five (5) days after the
appointment of such appraiser Landlord and Tenant shall each provide a written
summary of their respective determinations of the Landlord's and Tenant's
Proposed Fair Market Rent, together with any supporting
46
information which it deems relevant to such determination to the appraiser
promptly upon his/her appointment. Within thirty (30) days of the appointment
of the appraiser, the appraiser shall notify both Landlord and Tenant of its
determination of the Fair Market Rent. If the appraiser's determination of the
Fair Market Rent is equal to the Landlord's or Tenant's Proposed Fair Market
Rent or within the range between the Landlord's and Tenant's Proposed Fair
Market Rent, then the appraiser's determination of the Fair Market Rent will be
the Fair Market Rent. If the appraiser's determination of the Fair Market Rent
exceeds both the Landlord's and Tenant's Proposed Fair Market Rent, then the
higher of either the Landlord's or Tenant's Proposed Fair Market Rent shall be
the Fair Market Rent. If the appraiser's determination of the Fair Market Rent
is lower than both the Landlord's and Tenant's Proposed Fair Market Rent, then
the lower of either the Landlord's or Tenant's Proposed Fair Market Rent shall
be the Fair Market Rent. If Landlord and Tenant cannot agree on the identity of
the appraiser, then either party on behalf of both may apply to the President of
the New England Chapter of the American Institute of Real Estate Appraisers (or
its successor), or on its failure or inability to appoint an appraiser within
ten (10) days of the application to that person to act, to a court of competent
jurisdiction, for the appointment of an appraiser to serve as the appraiser.
The appraiser shall within thirty (30) days of his or her appointment make his
or her determination of the Fair Market Rent. The Fair Market Rent of the
Premises, determined in accordance with the provisions of this section, shall be
binding and conclusive on Tenant and Landlord.
The cost and expense of the appraiser shall be shared equally by Tenant
and Landlord. If, for any reason, the decision of the appraiser pursuant to
this Section shall not be determined before the commencement of the extension
period, then Tenant shall pay Base Rent in monthly installments at the greater
of (i) the rate in effect immediately prior to the commencement of such
extension period or (ii) ninety five percent (95%) of the average of the
Landlord's Proposed Fair Market Rent and the Tenant's Proposed Fair Market Rent
until such decision of the appraiser shall be made, and upon the decision by the
appraiser an appropriate adjustment shall be made, retroactive to the first day
of such extension.
In no event shall the date by which Tenant must exercise the Extension
Option be extended for purposes of this Section. Time is of the essence with
respect to this Extension Option.
[Signatures on Next Page]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
LANDLORD: TENANT:
NATIONAL FIRE PROTECTION DM MANAGEMENT COMPANY
ASSOCIATION, INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxxx
--------------------------- ---------------------------
Title: Sr. V.P. and General Title: CFO
Counsel
By:
---------------------------
Title:
48
EXHIBIT CS
CLEANING SPECIFICATIONS
A. PREMISES
DAILY ON BUSINESS DAYS:
1. Empty and clean all waste receptacles and ash trays and remove waste
material from the Premises; wash receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated mop.
3. Spot vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal surfaces
including furniture, office equipment, window xxxxx, door ledges,
chair rails and counter tops, within normal reach.
5. Wash clean all water fountains.
6. Upon completion of cleaning, all lights will be turned off and doors
locked, leaving the Premises in an orderly condition.
WEEKLY:
Vacuum all rugs and carpeted areas.
QUARTERLY:
Render high dusting not reached in daily cleaning to include:
1. Dusting all pictures, frames, charts, graphs and similar wall
hangings.
2. Dusting all vertical surfaces, such as walls, partitions, doors and
ducts.
3. Dusting all pipes and high moldings.
B. LAVORATORIES
DAILY ON BUSINESS DAYS:
1. Sweep and damp mop floors.
49
2. Clean all mirrors, powder shelves, dispensers and receptacles, bright
work, flushmeters, pipes and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basin, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers, vending
sanitary dispensers; materials to be furnished by Landlord.
9. A sanitizing solution will be used in all lavatory cleaning.
MONTHLY:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
C. MAIN LOBBY, BUILDING EXTERIOR AND CORRIDORS
DAILY ON BUSINESS DAY:
1. Sweep and wash all floors.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe down walls and doors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding building entrance doors.
MONTHLY:
All resilient tile floors in public areas to be treated equivalent to spray
buffing.
50
QUARTERLY:
Windows washed inside and outside -- weather permitting.
D. MISCELLANEOUS SERVICES
Tenant requiring services in excess of those described above shall request
same through Landlord, at Tenant's expense.
Initialed for Identification
LANDLORD: /s/ Xxxxx X. Xxxxxxx TENANT: /s/ OPC
-------------------------- ----------------------------
51
EXHIBIT OC
ITEMS INCLUDED IN OPERATING EXPENSES
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social
security, unemployment and similar taxes, workmen's compensation insurance,
disability benefits, pensions, hospitalization, retirement plans and group
insurance, uniforms and working clothes and the cleaning thereof, and
expenses imposed on Landlord or Landlord's agents pursuant to any
collective bargaining agreement for the services of employees of Landlord
or Landlord's agents in connection with the operation, repair, maintenance,
cleaning, management and protection of the Property, 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 on other property of Landlord, such compensation shall be
suitably prorated among the Property and such other properties.
2. The cost of services, materials and supplies furnished to the Building or
tenants thereof or used in the operation, repair, maintenance, cleaning,
management and protection of the Property.
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 property of
Landlord, such costs shall be suitably prorated among the Property and such
other properties and of establishment of reasonable reserves relating to
operation and maintenance of the Property.
4. Where the Property is managed by Landlord or an affiliate of Landlord, a
sum equal to the amounts customarily charged by management firms in the
Boston area for similar properties, but in no event more than four percent
(4%) of gross annual income of the Property, whether or not actually paid,
or where otherwise managed, the amounts accrued for management, together
with amounts accrued for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in connection with
services rendered for securing or renewing leases and for matters not
related to the normal administration and operation of the Building.
52
5. Premiums for insurance against damage or loss to the Building from such
hazards as shall from time to time be generally required by institutional
mortgages in the Quincy area for similar properties, including, but not by
way of limitation, insurance covering loss of rent attributable to any such
hazards, and public liability insurance.
6. If, during the Term of this Lease, Landlord shall make a capital
expenditure which is not otherwise 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 during the useful life of the capital expenditure the annual
charge-off of such capital expenditure. Annual chargeoff shall be
determined by dividing the original capital expenditure PLUS an interest
factor, reasonably determined by Landlord, as being the interest rate then
being charged for long-term mortgages by institutional lenders on like
properties within the locality in which the Building is located, by the
number of years of useful life of the capital expenditure; and the useful
life shall be determined reasonably by Landlord in accordance with
generally accepted accounting principles and practices in effect at the
time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other utilities
supplied to the Property and not paid for directly by tenants.
8. Betterment assessments (including interest charged thereon) provided the
same are apportioned equally over the longest period permitted by law.
9. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
Operating Expenses shall exclude the following:
(a) The cost of capital improvements, repairs or replacements to the
Building except for those that (a) reduce operating expenses of the
Building, but only to the extent of such cost saving, or (b) are
required by law; provided, however, such capital improvements, repairs
and replacements shall be amortized over a reasonable period of time
in accordance with generally accepted accounting principles;
(b) Payments for rented equipment, the cost of which equipment would
constitute a capital expenditure if the equipment were purchased,
except equipment rented for maintenance and repair of the Building
which shall be a permitted Operating Expense;
53
(c) The cost of correcting defects as to which Landlord is responsible
pursuant to Section 4.3 of this Lease;
(d) Depreciation and amortization, except to the extent provided above;
(e) Interest, mortgage charges and real estate taxes;
(f) Any items to the extent such items are reimbursable to Landlord by
Tenant (other than through additional rent), by other tenants or
occupants of the Building, or by any third parties;
(g) Salaries of officers, executives and employees of Landlord not
connected with the operation of the Building, provided that if any
officer, executive or employee of Landlord or a managing agent
performs duties with respect to the Building, then a fair and
equitable portion of the wages and fringe benefits for such officer,
executive or employee as determined by Landlord shall be allocated to
the Building and included in Operating Expenses;
(h) All costs related to the preparation of any portion of the Building
for occupancy by a tenant or other occupant;
(i) Any cost incurred by the negligent acts or omissions of Landlord, its
agents and employees;
(j) Advertising and promotional expenses associated with the marketing of
vacant space in the Building;
(k) Legal fees and expenses incurred by Landlord, except to the extent
that such fees and expenses were incurred in connection with contracts
and the enforcement thereof, for services which are provided to Tenant
and available to all tenants in the Building;
(l) Costs and expenses incurred by Landlord in connection with the repair
of damage to the Building caused by fire or other casualty, insured or
required to be insured against hereunder.
(m) Insurance premiums to the extent any unusual tenant activity causes
Landlord's existing insurance premiums to increase or requires
Landlord to purchase additional insurance, but only to the extent such
additional cost can be identified by the insurer;
(n) The cost of installing any specialty service such as a cafeteria,
retail store, newsstand, concession or athletic club;
54
(o) The cost of any item for which Landlord is reimbursed through
condemnation awards;
(p) Management fees in excess of the greater of (i) those reasonable and
customary for comparable properties in the geographic area in which
the Building is located or (ii) four (4) percent of gross annual
income from the Property; and
(q) Costs incurred due to violation by Landlord or any other tenant of the
Building of any lease or any laws, rules, regulations or ordinances
applicable to the Building.
Initialed for Identification
LANDLORD: /s/ Xxxxx X. Xxxxxxx TENANT: /s/ OPC
--------------------------- ----------------------------
55
EXHIBIT D
RULES AND REGULATIONS
The following Rules and Regulations have been formulated for the safety and well
being of all Tenants of the Building and to insure compliance with all municipal
and other requirements. Strict adherence to these Rules and Regulations is
necessary to guarantee that each and every Tenant will enjoy a safe and
undisturbed occupancy in the Building in accordance with the lease. Any
continuing violation of these Rules and Regulations by a Tenant, after notice
from the Landlord, shall be sufficient cause for termination of the lease, at
the option of the Landlord.
1. The sidewalks, entrances, loading dock, atrium, elevators, vestibules,
stairways, corridors, or other parts of the Building not occupied by any
Tenant shall not be obstructed or encumbered by any Tenant or used for any
purpose other than ingress and egress and to from the Premises. The
Landlord shall have the right to control and operate and public portions of
the Building and the facilities furnished for common use of the Tenants, in
such manner as the Landlord deems best for the benefit of the Tenants
generally.
2. No drapes, blinds, shades or screens shall be attached to or hung in, or
used in connection with, any window or door of the Premises, without the
prior written consent of the Landlord.
3. No bicycles, vehicles or animals, birds or pets of any kind shall be
brought into or kept in or about the Premises, and no cooking shall be done
or permitted by any Tenant on the Premises. No Tenant shall cause or
permit any unusual or objectionable odors to be produced upon or penetrate
from the Premises.
4. No inflammable, combustible or explosive fluid, chemical or substance shall
be kept upon the Premises.
5. No additional locks or bolts of any kind shall be places upon any of the
doors, nor shall any changes be made in existing locks or the mechanism
thereof to the doors leading to the corridors or main halls. All entrance
doors shall be kept closed during business hours except as they may be used
for ingress or egress. Each Tenant shall, upon the termination of his
tenancy, restore to the Landlord all keys either furnished to, or otherwise
procured by such Tenant and in the event of the loss of any keys so
furnished, such Tenant shall pay to the Landlord the cost thereof.
6. No furniture, equipment or other bulky matter of any description shall be
received into the Building or carried in the elevators except in the manner
and
56
during the times approved by Lessor. Lessee shall obtain Lessor's
determination prior to moving said property into the Building. All moving
of furniture, equipment, and other material within the public areas shall
be under the direct control and supervision of Lessor who shall, however,
not be responsible for any damage to or charges for moving the same.
Lessor shall have the sole right to determine if Lessee's property can be
safely transported in the elevators.
7. The Landlord reserves the right to exclude from the Building at all times
any person who is not known or does not properly identify himself to the
building management or security service. Landlord may, at its option,
require all persons admitted to or leaving the Building between the hours
of 6:00 PM and 7:00 AM, Monday through Friday, and on Saturdays after 1:00
PM to register. Each Tenant shall be responsible for all persons for whom
they authorize entry into or exit out of the Building.
8. The Premises shall not, at any time, be used for lodging or sleeping or for
any immoral or illegal purposes.
9. Canvassing, soliciting and peddling in the Building is prohibited and each
Tenant shall cooperate to prevent the same.
10. Landlord does not maintain suite finishes which are non standard, such as
bathrooms, wallpaper, special lights, etc. However, should the need for
repairs of items not maintained by Landlord arise, Landlord will arrange
for the work to be done at Tenants' expense.
11. All Tenants and visitors are expected to observe all safety features and
traffic laws in the park which include:
- A speed limit of 20 m.p.h.
- All stop signs are to be obeyed
- Automobiles are not be left in the roadway at anytime
- Automobiles are not to be left in the parking lot overnight or
weekends.
- Automobiles should be parked within marked lanes. Reserved parking
and parking for the handicap signs should be respected.
12. Landlord may, upon request by any Tenant, waive the compliance by such
Tenant of any of the foregoing Rules and Regulations, provided that:
57
(i) No waiver shall be effective unless signed by Landlord or
Landlord's authorized agent.
(ii) Any such waiver shall not relieve such Tenant from the obligation
to comply with such Rules or Regulations in the future unless
expressly consented to by Landlord, and;
(iii) No waiver granted to any Tenant shall relieve any other Tenant
from the obligation of complying with the foregoing Rules and
Regulations unless such other Tenant has received a similar
waiver in writing from Landlord.
Initialed for Identification
Landlord: /s/ JMS
-------------------------------
Tenant: /s/ OPC
---------------------------------
58
TENANT IMPROVEMENT SPECIFICATIONS
0 XXXXXXXXXXXX XXXX
XXXXXX, XX
EXHIBIT LW
The following provides a description of Tenant Improvement standards and
delineates between Base Building work by Landlord and Tenants work.
CEILINGS: Ceiling will be suspended grid type with recessed
2' x 4' (revcaledge) XXXXXXXXX, OR EQUAL, "Second
Look" lay-in panels. THE FINISHED CEILING WILL BE
APPROXIMATELY 9'. THE TENANT WILL BE ALLOWED TO HAVE
EXPOSED OR GYP CEILINGS IN SOME AREAS, SUBJECT TO
FINAL REVIEW OF PLANS.
ELECTRICAL: The base building electrical system is designed in
accordance with the following anticipated loads:
- Lighting power requirements will be calculated on the
basis of 1.5 xxxxx per SF of building area.
- Tenant convenience outlet power requirements will
be calculated on the basis of approximately 5-7
xxxxx per square foot of total building area.
- Power requirements for HVAC and other fixed building
equipment will be determined by the actual equipment
installed.
ELECTRICAL: Distribution panels and feeders are provided for the
HVAC system, lighting and utility power. Tenant spaces
are serviced by sub-panels located in common electrical
rooms on each floor. An emergency light and exit sign
system is provided to meet code requirements for the
common areas and unfinished tenant spaces.
PAINTING: All wall surfaces shall receive two coats of latex paint
with an eggshell finish. THERE WILL BE NO
RESTRICTIONS ON INTERIOR COLORS WITHIN THE TENANT'S
SPACE. Any doors shall receive two coats of clear
polyurethane. All frames shall recieve two coats of
semi-gloss enamel to match room color.
HEATING, VENTILATING
AND AIR CONDITIONING: Heating will be accomplished through the use of a
STATE OF THE ART variable air volume system. Air will
return through the ceiling. AFTERHOURS HVAC WILL BE
AVAILABLE WITH 24-HOUR NOTICE. THE COST, SUBJECT TO
THE NUMBER OF ZONES, WILL RUN APPROXIMATELY
$35.00-45.00 PER HOUR.
SUN CONTROL BLINDS: All windows will have 3" perforated vertical blinds
similar to Louver-Drape in type and color selected by
Landlord. LANDLORD, HOWEVER, IS OPEN TO DISCUSS OTHER
OPTIONS WITH TENANT.
PARTITIONS: TENANT PARTITIONS
Partitions within premises will be 2 1/2" metal studs
with one layer of 1/2" gypsum board on each side.
Partitions will extend from floor to the acoustic tile
ceiling. TENANT WILL HAVE THE RIGHT TO EXTEND CERTAIN
PARTITIONS TO THE DECK ABOVE FOR SOUNDPROOFING PURPOSES.
DEMISING PARTITIONS
Construction will be 2 1/2" metal studs with one layer
of 1/2" gypsum board on each side, and 2 1/2" sound
attenuation blanket between studs. Demising partitions
will extend from floor to the underside of structure
above, subject to requirements of the building HVAC
systems. If Tenant is part of a multi-tenanted floor
then one-half of the total quantity of the demising
walls between Tenant's space and the adjoining space(s)
will be attributed to the Tenant.
DOORS: Doors with single premises will be 3'0" x 8'0" x 1 3/4"
solid-core with plain-slice maple veneer. LANDLORD IS
OPEN TO DISCUSS AN ALTERNATIVE VENEER. Door frames
will be pressed metal. Hardware will BE SCHLAGE, OR
EQUAL, AND WILL include 1 1/2 pair of butts, one
standard duty brushed-chrome lever passage set and
one door stop.
BASE BUILDING SHELL SPECIFICATIONS
0 XXXXXXXXXXXX XXXX
XXXXXX, XX
EXHIBIT LW
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WINDOWS: Aluminum frames with thermopane, Low-E, tinted glass
is provided throughout.
ROOF: Single-ply, EPDM membrane roofing systems with 2 1/2"
insulation providing an R16 is provided. TENANT WILL
BE PERMITTED TO ROOF MOUNT SUPPLEMENTAL COOLING
UNITS, SUBJECT TO LANDLORD'S REVIEW AND CONSENT.
TENANT WILL HAVE THE RIGHT TO INSTALL AN EXTERIOR VENT
FOR THE DRYER. THE LOCATION WILL BE SUBJECT TO
LANDLORD'S REVIEW AND CONSENT. TENANT WILL ALSO
REMAIN LIABLE FOR PROBLEMS ASSOCIATED WITH THE VENT
AND FOR MAINTENANCE.
COMMON AREAS: A two-story atrium lobby which includes three
elevators, a monumental stair and bathroom cores.
Interior drywall partitions for the lobbies, bathroom
cores, electrical and mechanical rooms are
constructed using steel studs, 16" on center with
1/2" gypsum wall board to the underside of the deck.
The bathroom and utility room doors are 3'-0" x 7'-0"
solid core, maple veneer in hollow metal frames with
standard lever hardware.
Two coats of latex paint is provided on all drywall
and door frames. Doors and window xxxxx receive stain
and/or clear sealed.
A combination of drywall soffits and suspended
ceilings is provided in the lobbies and all other
common areas. Bathrooms and 2' x 2' suspended
ceilings.
A combination of tile and carpet is provided in the
lobbies. All common hallways have carpet. Ceramic
tile is provided in the bathrooms and shower rooms on
the floors and walls.
All common areas have semi-recessed chrome sprinkler
heads located in the suspended or drywall ceilings.
TENANT ENTRANCES: Entrances from lobbies into the tenant space are
3'-6" x 7'-10" solid core maple veneer with tempered
glass and 3'-6" tempered-glass sidelights.
PARTITIONS: The inside of the exterior walls are steel studs 16"
on center with bat insulation and 5/8" gypsum wall
board to 10 feet above the finished door. Hardwood
veneer window xxxxx are provided at all windows.
FLOORING: Unfinished floors in Tenant spaces will be leveled,
IN ACCORDANCE WITH BOMA STANDARDS, to receive a new
flooring.
SPRINKLER: A sprinkler system is provided throughout the
building. Tenant spaces have the proper coverage
required by code for open, unfinished space, with
heads facing up at the underside of the exposed deck.
FIRE ALARM: An addressable fire alarm system is provided
throughout the building in conformance with all State
and municipal code requirements.
To clarify the delineation from Base Building to Tenant work, the following
criteria apply:
- All finishes in the core area are included with base
building INCLUDING BATHROOMS on ALL FLOORS (except elevator
lobbies on upper floors).
- There is no provision in base building for a common corridor
on any floor.
- Base building includes exterior window blinds (PVC Vertical)
- Base building includes painted drywall on the interior face
of the exterior wall.
- Base building sprinkler system extends to valves at each
floor on the stairwell riser. The main distribution loop is
included in Base Building.
- All distribution piping and sprinkler heads are Tenant work
(excluding heads required in the core areas).
EXHIBIT C: BASE BUILDING OUTLINE SPECIFICATIONS
- Base building HVAC system includes vertical duct risers. All
HVAC work in the tenant shell pace including the main
distribution duct (medium pressure) is tenant work.
- Base building electrical system extend up to and includes
conduits and feeder to central/electrical room on each
floor, and sized to accommodate tenant electrical design load
of 5-7 xxxxx per rentable square foot (lighting and power).
- Tenant Work Letter, which is NOT included in base building,
would normally cover the following:
- Ceiling high partitions - Interior doors
- Acoustical ceilings - Carpet
- 2 x 2 light fixtures - Single pole
switches
- Wall-mounted duplex outlets - Wall-mounted
telephone outlets
- Sprinkler heads with distribution piping: Supplemental fire
department valves if required by tenant layout.
- Medium Pressure Distribution Duct, VAV Boxes and Controls,
Secondary Duct GRD's, HVAC Diffusers and Grills with
Distributor Ductwork.
- Fire alarm stations and Exit signs required by code.
- Roof top DX units to provide additional cooling capacity in
excess of 5.5 watt/SF.
/s/ OPC
-------------
/s/ JMS
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Exhibit FP
Floor Plans
Omitted
