MM EQUITY NO. __________
OFFICE LEASE
THIS OFFICE LEASE (this "Lease") is made as of this ___ day of April,
2000 by and between MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts corporation ("Landlord") through its agent CORNERSTONE REAL
ESTATE ADVISERS, INC., having an address at Xxx Xxxxxxxxx Xxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000, and AUTHORISZOR INC., a
__________________________ ("Tenant") having its principal office at Xxx Xxx
xx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
TABLE OF CONTENTS
ARTICLE PAGE
ARTICLE 1. BASIC PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE 2. PREMISES, TERM AND COMMENCEMENT DATE . . . . . . . . . . . . . . . . .3
ARTICLE 3. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
ARTICLE 4. TAXES AND OPERATING EXPENSES . . . . . . . . . . . . . . . . . . . . .4
ARTICLE 5. LANDLORD'S WORK, TENANT'S WORK, ALTERATIONS AND ADDITIONS. . . . . . .6
ARTICLE 6. USE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
ARTICLE 7. SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE 8. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 9. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 10. CASUALTY DAMAGE. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 11. CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 12. REPAIR AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 13. INSPECTION OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 14. SURRENDER OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 15. HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 16. SUBLETTING AND ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . 15
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ARTICLE 17. SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION . . . . . . . . . 16
ARTICLE 18. ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 19. DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 20. REMEDIES OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 21. QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 22. ACCORD AND SATISFACTION. . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 23. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 24. BROKERAGE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 25. FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 26. PARKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 27. HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 28. ADDITIONAL RIGHTS RESERVED BY LANDLORD . . . . . . . . . . . . . . . 24
ARTICLE 29. DEFINED TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 30. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 29
EXHIBITS
Exhibit A Plan Showing Property and Premises
Exhibit B Landlord's Work Letter
Exhibit C Tenant's Work
Exhibit D Building's Rules and Regulations; Janitorial Specifications
Exhibit E Commencement Date Confirmation
Exhibit F Form Letter of Credit
RIDER TO OFFICE LEASE
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ARTICLE 1.
BASIC PROVISIONS
A. Tenant Tradename: Authoriszor Inc.
B. Tenant's Address: _________________________
_________________________
with a copy to: _________________________
_________________________
_________________________
_________________________
C. Office Building Name: Landmark One
Address: One Xxx xx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 0 0000
X. Premises: Suite/Unit No.: Suites 502 & 503
Square Feet (Rentable): 11,950
E. Landlord: Massachusetts Mutual Life Insurance Company
F. Landlord's Address: c/o Cornerstone Real Estate Advisers
Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
G. Building Manager/Address: X.X. Xxxxxxx & Co., Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
H. Commencement Date: May 1, 2000 (subject to Article 2 and
Exhibit B)
I. Expiration Date: April 30, 2005
J. Security Deposit: $220,000.00
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K. Monthly Rent:
Lease Year Monthly Rent
---------- ------------
1 $31,368.75
2 $31,368.75
3 $31,368.75
4 $31,866.67
5 $32,364.58
L. Operating Expenses Base Year: Calendar Year 2000
M. Tax Base Year: Fiscal Year 2000
N. Tenant's Pro Rata Share: 7.78%. Tenant's Pro Rata Share shall be
determined by Landlord with notice to Tenant and adjusted by Landlord
from time to time (but shall not be readjusted sooner than the
commencement of the second Lease year), by dividing the Tenant's Rentable
Square Feet of the Premises by the rentable area of the Building and
multiplying the resulting quotient, to the second decimal place, by one
hundred.
O. Normal Business Hours of Building:
Monday through Friday: 8:00 a.m. to 6:00 p.m.
Saturday: 8:00 a.m. to 1:00 p.m.
Sunday: N/A
P. Brokers: X.X. Xxxxxxx & Co., Inc. and Boston Commercial Properties, Inc.
Q. Parking: Tenant shall have the non-exclusive right to use up to
thirty-eight (38) parking spaces in the parking facilities, at no cost to
Tenant. All parking is available on a first come-first serve basis.
R. Tenant's Original Electric Factor: Tenant shall pay to Landlord $896.25
per month with each payment of Monthly Rent pursuant to Article 3, which
amount shall be included in the definition of Rent under Article 3C.
The foregoing provisions shall be interpreted and applied in
accordance with the other provisions of this Lease set forth below. The
capitalized terms, and the terms defined in Article 29, shall have the
meanings set forth herein or therein (unless otherwise modified in the Lease)
when used as capitalized terms in other provisions of the Lease.
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ARTICLE 2.
PREMISES, TERM AND COMMENCEMENT DATE
Landlord hereby leases and demises to the Tenant and Tenant hereby
takes and leases from Landlord that certain space identified in Article 1 and
shown on a plan attached hereto as Exhibit A ("Premises") for a term ("Term")
commencing on the Commencement Date and ending on the Expiration Date set
forth in Article 1, unless sooner terminated as provided herein, subject to
the provisions herein contained. The Commencement Date set forth in Article
1 shall be advanced to such earlier date as Tenant commences occupancy of the
Premises for the conduct of its business. Such date shall be confirmed by
execution of the Commencement Date Confirmation in the form as set forth in
Exhibit E. If Landlord delays delivering possession of the Premises or
substantial completion of any Landlord's Work under Exhibit B, this Lease
shall not be void or voidable, except as provided in Article 5, and Landlord
shall have no liability for loss or damage resulting therefrom.
ARTICLE 3.
RENT
A. MONTHLY RENT. Tenant shall pay Monthly Rent in advance on or
before the first day of each month of the Term. If the Term shall commence
and end on a day other than the first day of a month, the Monthly Rent for
the first and last partial month shall be prorated on a per them basis. Upon
the execution of this Lease, Tenant shall pay one installment of Monthly Rent
for the first fall month of the Term and a prorated Monthly Rent for any
partial month which may precede it.
B. ADDITIONAL RENT. All costs and expenses which Tenant assumes
or agrees to pay and any other sum payable by Tenant pursuant to this Lease,
including, without limitation, its share of Taxes and Operating Expenses,
shall be deemed Additional Rent.
C. RENT. Monthly Rent, Additional Rent, Taxes and Operating
Expenses and any other amounts which Tenant is or becomes obligated to pay
Landlord under this Lease are herein referred to collectively as "Rent", and
all remedies applicable to the nonpayment of Rent shall be applicable
thereto. Landlord may apply payments received from Tenant to any obligations
of Tenant then accrued, without regard to such obligations as may be
designated by Tenant.
D. PLACE OF PAYMENT, LATE CHARGE, DEFAULT INTEREST. Rent and
other charges required to be paid under this Lease, no matter how described,
shall be paid by Tenant to Landlord at the Building Manager's address listed
in Article 1, or to such other person and/or address as Landlord may
designate in writing, without any prior notice or demand therefor and without
deduction or set-off or counterclaim and without relief from any valuation or
appraisement laws. In the event Tenant fails to pay Rent due under this
Lease within ten (10) days of due date of said Rent, Tenant shall pay to
Landlord a late charge of ten percent (10%) on the amount overdue. Any Rent
not paid when due shall also bear interest at the Default Rate.
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ARTICLE 4.
TAXES AND OPERATING EXPENSES
A. PAYMENT OF TAXES AND OPERATING EXPENSES. It is agreed that
during each Lease Year beginning with the first month of the second Lease
Year and each Lease Year thereafter during the original Lease Term, or any
extension thereof, Tenant shall pay to Landlord as Additional Rent, at the
same time as the Monthly Rent is paid, an amount equal to one-twelfth (1/12)
of Landlord's estimate (as determined by Landlord in its sole discretion) of
Tenant's Pro Rata Share of any projected increase in the Taxes or Operating
Expenses for the particular Lease Year in excess of the Tax Base Year or
Operating Expenses Base Year, as the case may be (the "Estimated Escalation
Increase"). A final adjustment (the "Escalation Reconciliation") to be made
between the parties as soon as practicable following the end of each Lease
Year, but in no event later than ninety (90) days after the end of each Lease
Year. In computing the Estimated Escalation Increase for any particular
Lease Year, Landlord shall take into account any prior increases in Tenant's
Pro Rata Share of Taxes and Operating Expenses. If during any Lease Year the
Estimated Escalation Increase is less than the Estimated Escalation Increase
for the previous Lease Year on which Tenant's share of Taxes and Operating
Expenses were based for said year, such Additional Rent payments,
attributable to Estimated Escalation Increase, to be paid by Tenant for the
new Lease Year shall be decreased accordingly; provided, however, in no event
will the Rent paid by Tenant hereunder ever be less than the Monthly Rent
plus all other amounts of Additional Rent.
As soon as practicable following the end of each Lease Year, Landlord
shall submit to Tenant a statement setting forth the Estimated Escalation
Increase, if any. Beginning with said statement for the second Lease Year,
it shall also set forth the Escalation Reconciliation for the Lease Year just
completed. To the extent that the Operating Expense Escalation is different
from the Estimated Escalation Increase upon which Tenant paid Rent during the
Lease Year just completed, Tenant shall pay Landlord the difference in cash
within thirty (30) days following receipt by Tenant of such statement from
Landlord, or receive a credit on future Rent owing hereunder (or cash if
there is no future Rent owing hereunder) as the case may be. Until Tenant
receives such statement, Tenant's Rent for the new Lease Year shall continue
to be paid at the rate being paid for the particular Lease Year just
completed, but Tenant shall commence payment to Landlord of the monthly
installment of Additional Rent on the basis of said statement beginning on
the first day of the month following the month in which Tenant receives such
statement. In addition to the above, if, during any particular Lease Year,
there is a change in the information on which Landlord based the estimate
upon which Tenant is then making its estimated payment of Taxes and Operating
Expenses so that such Estimated Escalation Increase famished to Tenant is no
longer accurate, Landlord shall be permitted to revise such Estimated
Escalation Increase by notifying Tenant, and there shall be such adjustments
made in the Additional Rent on the first day of the month following the
serving of such statement on Tenant as shall be necessary by either
increasing or decreasing, as the case may be, the amount of Additional Rent
then being paid by Tenant for the balance of the Lease Year (but in no event
shall any such decrease result in a reduction of the rent below the Monthly
Rent plus all other amounts of Additional Rent). Landlord's and Tenant's
responsibilities with respect to the Tax
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and Operating Expense adjustments described herein shall survive the
expiration or early termination of this Lease.
If the Building is less than ninety-five percent (95%) occupied during
any particular Lease Year, Landlord shall adjust those Operating Expenses
which are affected by Building occupancy for the Operating Expenses Base Year
and the particular Lease Year, or portion thereof, as the case may be, to
reflect an occupancy of not less than ninety-five percent (95%) of all such
rentable area of the Building.
B. DISPUTES OVER TAXES OR OPERATING, EXPENSES. If Tenant disputes
the amount of an adjustment or the proposed estimated increase or decrease in
Taxes or Operating Expenses, Tenant shall give Landlord written notice of
such dispute within thirty (30) days after Landlord advises Tenant of such
adjustment or proposed increase or decrease. Tenant's failure to give such
notice shall waive its right to dispute the amounts so determined. If Tenant
timely objects, Tenant shall have the right to engage its own accountants
("Tenant's Accountants") for the purpose of verifying the accuracy of the
statement in dispute, or the reasonableness of the adjustment or estimated
increase or decrease. If Tenant's Accountants determine that an error has
been made, Landlord and Tenant's Accountants shall endeavor to agree upon the
matter, failing which Landlord and Tenant's Accountants shall jointly select
an independent certified public accounting firm (the "Independent
Accountant") which firm shall conclusively determine whether the adjustment
or estimated increase or decrease is reasonable, and if not, what amount is
reasonable. Both parties shall be bound by such determination. If Tenant's
Accountants do not participate in choosing the Independent Accountant within
20 days notice by Landlord, then Landlord's determination of the adjustment
or estimated increase or decrease shall be conclusively determined to be
reasonable and Tenant shall be bound thereby. All costs incurred by Tenant
in obtaining Tenant's Accountants and the cost of the Independent Accountant
shall be paid by Tenant unless Tenant's Accountants disclose an error,
acknowledged by Landlord (or found to have conclusively occurred by the
Independent Accountant), of more than ten percent (10%) in the computation of
the total amount of Taxes or Operating Expenses as set forth in the statement
submitted by Landlord with respect to the matter in dispute; in which event
Landlord shall pay the reasonable costs incurred by Tenant in obtaining such
audits. Tenant shall continue to timely pay Landlord the amount ofthe prior
year's adjustment and adjusted Additional Rent determined to be incorrect as
aforesaid until the parties have concurred as to the appropriate adjustment
or have deemed to be bound by the determination of the Independent Accountant
in accordance with the preceding terms. Landlord's delay in submitting any
statement contemplated herein for any Lease Year shall not affect the
provisions of this Paragraph, nor constitute a waiver of Landlord's rights as
set forth herein for said Lease Year or any subsequent Lease Years during the
Lease Term or any extensions thereof.
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ARTICLE 5.
LANDLORD'S WORK, TENANT'S WORK,
ALTERATIONS AND ADDITIONS
A. LANDLORD'S WORK. Landlord shall construct the Premises in
accordance with Landlord's obligations as set forth in the work letter
attached hereto as Exhibit B, and hereinafter referred to as "Landlord's
Work." Landlord will deliver the Premises to Tenant with all of Landlord's
Work completed (except for minor and non-material punch list items which in
Landlord's reasonable judgment will not delay completion of Tenant's Work, as
defined in subparagraph B of this Article) on or before the date specified in
Exhibit B and Tenant agrees thereupon to commence and complete Tenant's Work
on or before the Commencement Date. Landlord shall provide Tenant the
opportunity to inspect the Premises prior to the Commencement Date and Tenant
shall accept the Premises in its "as is" condition. If Landlord is delayed
in completing Landlord's Work by strike, shortages of labor or materials,
delivery delays or other matters beyond the reasonable control of Landlord,
then Landlord shall give notice thereof to Tenant and the date on which
Landlord is to turn the Premises over to Tenant for Tenant's Work and the
Commencement Date shall be postponed for an equal number of days as the delay
as set forth in the notice. Provided, however, if such delays exceed one
hundred and twenty (120) days, then either Landlord or Tenant upon notice to
the other shall have the right to terminate this Lease without liability to
either party. If the Commencement Date is postponed as aforesaid, Tenant
agrees upon request of Landlord to execute a writing confirming the
Commencement Date on such form as set forth in Exhibit E attached hereto.
B. TENANT'S WORK. On and after the date specified in the
immediately preceding subparagraph A for delivery of the Premises to Tenant
for Tenant's Work, Tenant, at its sole cost and expense, shall perform and
complete all other improvements to the Premises (herein called "Tenant's
Work") including, but not limited to, all improvements, work and requirements
required of Tenant under the foregoing work letter. Tenant shall complete
all of Tenant's Work in good and workmanlike manner, fully paid for and free
from liens, in accordance with the plans and specifications approved by
Landlord and Tenant as provided in Exhibit C, on or prior to the scheduled
Commencement Date. Tenant shall also have the right during this period to
come onto the Premises to install its fixtures and prepare the Premises for
the operation of Tenant's business. Notwithstanding the fact that foregoing
activities by Tenant will occur prior to the scheduled Commencement Date,
Tenant agrees that all of Tenant's obligations provided for in this Lease
shall apply during such period with the exception of any obligation to pay
Rent.
C. ALTERATIONS. Except as provided in the immediately preceding
subparagraph, Tenant shall make no alterations or additions to the Premises
without the prior written consent of the Landlord, which consent Landlord may
grant or withhold in its sole discretion.
D. LIENS. Tenant shall give Landlord at least ten (10) days prior
written notice (or such additional time as may be necessary under applicable
laws) of the conunencement of any Tenant's Work, to afford Landlord the
opportunity of posting and recording notices of nonresponsibility. Tenant
will not cause or permit any mechanic's, materialman's or similar liens or
encumbrances to be filed or exist against the Premises or the Building or
Tenant's interest in this
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Lease in connection with work done under this Article or in connection with
any other work. Tenant shall remove any such lien or encumbrance by bond or
otherwise within twenty (20) days from the date of their existence. If
Tenant falls to do so, Landlord may pay the amount or take such other action
as Landlord deems necessary to remove any such lien or encumbrance, without
being responsible to investigate the validity thereof. The amounts so paid
and costs incurred by Landlord shall be deemed Additional Rent under this
Lease and payable in full upon demand.
E. COMPLIANCE WITH ADA. Notwithstanding anything to the contrary
contained in this Lease, Landlord and Tenant agree that responsibility for
compliance with the Americans With Disabilities Act of 1990 (the "ADA") shall
be allocated as follows: (i) Landlord shall be responsible for compliance
with the provisions of Title III of the ADA for all Common Areas, including
exterior and interior areas of the Building, not included within the Premises
or the premises of other tenants; (ii) Landlord shall be responsible for
compliance with the provisions of Title III of the ADA for any construction,
renovations, alterations and repairs made within the Premises if such
construction, renovations, alterations or repairs are made by Landlord for
the purpose of improving the Building generally or are done as Landlord's
Work and the plans and specifications for the Landlord's Work were prepared
by Landlord's architect or space planner and were not provided by Tenant's
architect or space planner; and (iii) Tenant shall be responsible for
compliance with the provisions of Title III of the ADA for any construction,
renovations, alterations and repairs made within the Premises if such
construction, renovations, alterations and repairs are made by Tenant, its
employees, agents or contractors, at the direction of Tenant or done pursuant
to plans and specifications prepared or provided by Tenant or Tenant's
architect or space planner.
ARTICLE 6.
USE
A. USE. Tenant shall use the Premises for general office
purposes, and for no other purpose whatsoever, subject to and in compliance
with all other provisions of this Lease, including without limitation the
Building's Rules and Regulations attached as Exhibit D hereto. Tenant and its
invitees shall also have the non-exclusive right, along with other tenants of
the Building and others authorized by Landlord, to use the Common Areas
subject to such rules and regulations as Landlord in its discretion may
impose from time to time.
B. RESTRICTIONS. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy, the Premises or do or permit
anything to be done in the Premises which: (a) causes or is liable to cause
injury to persons, to the Building or its equipment, facilities or systems;
(b) impairs or tends to impair the character, reputation or appearance of the
Building as a first class office building; (c) impairs or tends to impair the
proper and economic maintenance, operation and repair of the Building or its
equipment, facilities or systems; or (d) annoys or inconveniences or tends to
annoy or inconvenience other tenants or occupants of the Building.
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C. COMPLIANCE WITH LAWS. Tenant shall keep and maintain the
Premises, its use thereof and its business in compliance with all
governmental laws, ordinances, rules and regulations. Tenant shall comply
with all Laws relating to the Premises and Tenant's use thereof, including
without limitation, Laws requiring the Premises to be closed on Sundays or
any other days or hours and Laws in connection with the health, safety and
building codes, and any permit or license requirements. Landlord makes no
representation that the Premises are suitable for Tenant's purposes.
ARTICLE 7.
SERVICES
A. CLIMATE CONTROL. Landlord shall furnish heat or air
conditioning to the Premises during Normal Business Hours of Building as set
forth in Article 1 as required in Landlord's reasonable judgment for the
comfortable use and occupation of the Premises. If Tenant requires heat or
air conditioning at any other time, Landlord shall use reasonable efforts to
furnish such service upon reasonable notice from Tenant, and Tenant shall pay
all of Landlord's charges therefor on demand.
The performance by Landlord of its obligations under this Article is
subject to Tenant's compliance with the terms of this Lease including any
connected electrical load established by Landlord. Tenant shall not use the
Premises or any part thereof in a manner exceeding the heating, ventilating
or air-conditioning ("HVAC") design conditions (including any occupancy or
connected electrical load conditions), including the rearrangement of
partitioning which may interfere with the normal operation of the HVAC
equipment, or the use of computer or data processing machines or other
machines or equipment in excess of that normally required for a standard
office use of the Premises. If any such use requires changes in the HVAC or
plumbing systems or controls servicing the Premises or portions thereof in
order to provide comfortable occupancy, such changes may be made by Landlord
at Tenant's expense and Tenant agrees to promptly pay any such amount to
Landlord as Additional Rent.
B. ELEVATOR SERVICE. If the Building is equipped with elevators,
Landlord, during Normal Business Hours of Building, shall furnish elevator
service to Tenant to be used in common with others. At least one elevator
shall remain in service during all other hours. Landlord may designate a
specific elevator for use as a service elevator.
C. JANITORIAL SERVICES. Landlord shall provide janitorial and
cleaning services to the Premises, substantially as described in Exhibit D
attached hereto. Tenant shall pay to Landlord on demand the reasonable costs
incurred by Landlord for: (i) any cleaning of the Premises in excess of the
specifications in Exhibit D for any reason including, without limitation,
cleaning required because of (A) misuse or neglect on the part of Tenant or
Tenant's agents, contractors, invitees, employees and customers, (B) the use
of portions of the Premises for special purposes requiring greater or more
difficult cleaning work than office areas, (C) interior glass partitions or
unusual quantities of interior glass surfaces, and (D) non-building standard
materials or finishes installed by Tenant or at its request; and (ii) removal
from the Premises of any refuse and rubbish
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of Tenant in excess of that ordinarily accumulated in general office
occupancy or at times other than Landlord's standard cleaning times.
D. WATER AND ELECTRICITY. Landlord shall make available domestic
water in reasonable quantities to the Common Areas of the Building (and to
the Premises if so designated in Exhibit B) and cause electric service
sufficient for lighting, the Premises and for the operation of Ordinary
Office Equipment. "Ordinary Office Equipment" shall mean office equipment
wired for 120 volt electric service and rated and usina less than 6 amperes
or 750 xxxxx of electric current or other office equipment approved by
Landlord in writing. Landlord shall have the exclusive right to make any
replacement of lamps, fluorescent tubes and lamp ballasts in the Premises.
Landlord may adopt a system of relamping and ballast replacement periodically
on a group basis in accordance with good management practice. Tenant's use
of electric energy in the Premises shall not at any time exceed the capacity
of any of the risers, piping, electrical conductors and other equipment in or
serving the Premises. In order to insure that such capacity is not exceeded
and to avert any possible adverse effect upon the Building's electric system,
Tenant shall not, without Landlord's prior written consent in each instance,
connect appliances or heavy duty equipment, other than Ordinary Office
Equipment, to the Building's electric system or make any alteration or
addition to the Building's electric system. Should Landlord grant its consent
in writing, all additional risers, piping and electrical conductors or other
equipment therefor shall be provided by Landlord and the cost thereof shall
be paid by Tenant within 10 days of Landlord's demand therefor. As a
condition to granting such consent, Landlord may require Tenant to agree to
an increase in Monthly Rent to offset the expected cost to Landlord of such
additional service, that is, the cost of the additional electric energy to be
made available to Tenant based upon the estimated additional capacity of such
additional risers, piping and electrical conductors or other equipment. If
Landlord and Tenant cannot agree thereon, such cst shall be determined by an
independent electrical engineer, to be selected by Landlord and paid equally
by both parties.
E. SEPARATE METERS. If the Premises are separately metered for
any utility, Tenant shall pay a utility charge to Landlord (or directly to
the utility company, if possible) based upon the Tenant's actual consumption
as measured by the meter. Landlord also reserves the right to install
separate meters for the Premises to register the usage of all or any one of
the utilities and in such event Tenant shall pay for the cost of utility
usage as metered to the Premises and which is in excess of the usage
reasonably anticipated by Landlord for normal office usage of the Premises.
Tenant shall reimburse Landlord for the cost of installation of meters if
Tenant's actual usage exceeds the anticipated usage level by more than 10
percent. In any event, Landlord may require Tenant to reduce its consumption
to the anticipated usage level. The term "utility" for purposes hereof may
refer to but is not limited to electricity, gas, water, sewer, steam, fire
protection system, telephone or other communication or alarm service, as well
as HVAC, and all taxes or other charges thereon.
F. INTERRUPTIONS. Landlord does not warrant that any of the
services referred to above, or any other services which Landlord may supply,
will be free from interruption and Tenant acknowledges that any one or more
of such services may be suspended by reason of accident, repairs,
inspections, alterations or improvements necessary to be made, or by strikes
or lockouts, or by reason of operation of law, or causes beyond the
reasonable control of Landlord.
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Any interruption or discontinuance of service shall not be deemed an eviction
or disturbance of Tenant's use and possession of the Premises, or any part
thereof, nor render Landlord liable to Tenant for damages by abatement of the
Rent or otherwise, nor relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord shall however, exercise reasonable
diligence to restore any service so interrupted.
G. UTILITIES PROVIDED BY TENANT. Tenant shall make application in
Tenant's own name for all utilities not provided by Landlord and shall: (i)
comply with all utility company regulations for such utilities, including
requirements for the installation of meters; and (ii) obtain such utilities
directly from, and pay for the same when due directly to, the applicable
utility company. The term "utilities" for purposes hereof shall include but
not be limited to electricity, gas, water, sewer, steam, fire protection,
telephone and other communication and alarm services, as well as HVAC, and
all taxes or other charges thereon. Tenant shall install and connect all
equipment and lines required to supply such utilities to the extent not
already available at or serving the Premises, or at Landlord's option shall
repair, alter or replace any such existing items. Tenant shall maintain,
repair and replace all such items, operate the same, and keep the same in
good working order and condition. Tenant shall not install any equipment or
fixtures, or use the same, so as to exceed the safe and lawful capacity of
any utility equipment or lines serving the same. The installation,
alteration, replacement or connection of any utility equipment and lines
shall be subject to the requirements for alterations of the Premises set
forth in Article 5. Tenant shall ensure that all Tenant's HVAC equipment, is
installed and operated at all times in a manner to prevent roof leaks,
damage, or noise due to vibrations or improper installation, maintenance or
operation.
ARTICLE 8.
INSURANCE
A. REQUIRED INSURANCE. Tenant shall maintain insurance policies,
with responsible companies licensed to do business in the state where the
Building is located and satisfactory to Landlord, naming Landlord, Landlord's
Building Manager, Cornerstone Real Estate Advisers, Inc., Tenant and any
Mortgagee of Landlord, as their respective interests may appear, at its own
cost and expense including: (i) "all risk" property insurance which shall be
primary on the lease improvements referenced in Article 5 and Tenant's
property, including its goods, equipment and inventory, in an amount adequate
to cover their replacement cost; (ii) business interruption insurance; and
(iii) comprehensive general liability insurance on an occurrence basis with
limits of liability in an amount not less than $1,000,000 (One Million
Dollars) combined single limit for each occurrence. The comprehensive
general liability policy shall include contractual liability which includes
the provisions of Article 9 herein.
On or before the Commencement Date of the Lease, Tenant shall furnish
to Landlord and its Building Manager, certificates of insurance evidencing
the aforesaid insurance coverage, including naming Landlord, Cornerstone Real
Estate Advisers, Inc. and Landlord's Building Manager as additional insureds.
Renewal certificates must be furnished to Landlord at least
10
thirty (30) days prior to the expiration date of such insurance policies
showing the above coverage to be in full force and effect.
All such insurance shall provide that it cannot be canceled except
upon thirty (30) days prior written notice to Landlord. Tenant shall comply
with all rules and directives of any insurance board, company or agency
determining rates of hazard coverage for the Premises, including but not
limited to the installation of any equipment and/or the correction of any
condition necessary to prevent any increase in such rates.
B. WAIVER OF SUBROGATION. Landlord and Tenant each agree that
neither Landlord nor Tenant will have any claim against the other for any
loss, damage or injury which is covered by insurance carried by either party
and for which recovery from such insurer is made, notwithstanding the
negligence of either party in causing the loss. This release shall be valid
only if the insurance policy in question permits waiver of subrogation or if
the insurer agrees in writing that such waiver of subrogation will not affect
coverage under said policy. Each party agrees to use its best efforts to
obtain such an agreement from its insurer if the policy does not expressly
permit a waiver of subrogation.
C. WAIVER OF CLAIMS. Except for claims arising from Landlord's
willful misconduct that are not covered by Tenant's insurance required
hereunder, Tenant waives all claims against Landlord for injury or death to
persons, damage to property or to any other interest of Tenant sustained by
Tenant or any party claiming, through Tenant resulting from: (i) any
occurrence in or upon the Premises; (ii) leaking of roofs, bursting, stoppage
or leaking of water, gas, sewer or steam pipes or equipment, including
sprinklers; (iii) wind, rain, snow, ice, flooding, freezing, fire, explosion,
earthquake, excessive heat or cold, or other casualty; (iv) the Building,
Premises, or the operating and mechanical systems or equipment of the
Building, being defective, or failing; and (v) vandalism, malicious mischief,
theft or other acts or omissions of any other parties including without
limitation, other tenants, contractors and invitees at the Building. Tenant
agrees that Tenant's property loss risks shall be borne by its insurance, and
Tenant agrees to look solely to and seek recovery only from its insurance
carriers in the event of such losses. For purposes hereof, any deductible
amount shall be treated as though it were recoverable under such policies.
ARTICLE 9.
INDEMNIFICATION
Tenant shall indemnify and hold harmless Landlord and its agents,
successors and assigns, including its Building Manager, from and against all
injury, loss, costs, expenses, claims or damage (including attorney's fees
and disbursements) to any person or property arising from, related to, or in
connection with any use or occupancy of the Premises by or any act or
omission (including, without limitation, construction and repair of the
Premises arising out of Tenant's Work or subsequent work) of Tenant, its
agents, contractors, employees, customers, and invitees, which indemnity
extends to any and all claims arising from any breach or default in the
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performance of any obligation on Tenant's part to be performed under the
terms of this Lease. This indemnification shall survive the expiration or
termination of the Lease Term.
Landlord shall not be liable to Tenant for any damage by or from any
act or negligence of any co-tenant or other occupant of the Building, or by
any owner or occupants of adjoining or contiguous property. Landlord shall
not be liable for any injury or damage to persons or property resulting in
whole or in part from the criminal activities or willful misconduct of
others. To the extent not covered by all risk property insurance, Tenant
agrees to pay for all damage to the Building, as well as all damage to
persons or property of other tenants or occupants thereof, caused by the
negligence, fraud or willful misconduct of Tenant or any of its agents,
contractors, employees, customers and invitees. Nothing contained herein
shall be construed to relieve Landlord from liability for any personal injury
resulting from its gross negligence, fraud or willful misconduct.
ARTICLE 10.
CASUALTY DAMAGE
Tenant shall promptly notify Landlord or the Building Manager of any
fire or other casualty to the Premises or to the extent it knows of damage,
to the Building. In the event the Premises or any substantial part of the
Building is wholly or partially damaged or destroyed by fire or other
casualty which is covered by Landlord's insurance, the Landlord will proceed
to restore the same to substantially the same condition existing immediately
prior to such damage or destruction unless such damage or destruction is
incapable of repair or restoration within one hundred eighty (180) days, in
which event Landlord may, at Landlord's option and by written notice given to
Tenant within sixty (60) days of such damage or destruction, declare this
Lease terminated as of the happening of such damage or destruction. If in
Landlord's sole opinion the net insurance proceeds recovered by reason of the
damage or destruction will not be adequate to complete the restoration of the
Building, Landlord shall have the right to terminate this Lease and all
unaccrued obligations of the parties hereto by sending a notice of such
termination to Tenant. To the extent after fire or other casualty that
Tenant shall be deprived of the use and occupancy of the Premises or any
portion thereof as a result of any such damage, destruction or the repair
thereof, providing Tenant did not cause the fire or other casualty, Tenant
shall be relieved of the same ratable portion of the Monthly Rent hereunder
as the amount of damaged or useless space in the Premises bears to the
rentable square footage of the Premises until such time as the Premises may
be restored. Landlord shall reasonably determine the amount of damaged or
useless space and the square footage of the Premises referenced in the prior
sentence.
ARTICLE 11.
CONDEMNATION
In the event of a condemnation or taking of the entire Premises by a
public or quasi-public authority, this Lease shall terminate as of the date
title vests in the public or
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quasi-public authority. In the event of a taking or condemnation of fifteen
percent (15%) or more (but less than the whole) of the Building, and without
regard to whether the Premises are part of such taking or condemnation,
Landlord may elect to terminate this Lease by giving notice to Tenant within
sixty (60) days of Landlord receiving notice of such condemnation. All
compensation awarded for any condemnation shall be the property of Landlord,
whether such damages shall be awarded as a compensation for diminution in the
value of the leasehold or to the fee of the Premises, and Tenant hereby
assigns to Landlord all of Tenant's right, title and interest in and to any
and all such compensation. Providing, however that in the event this Lease
is terminated, Tenant shall be entitled to make a separate claim for the
taking of Tenant's personal property (including fixtures paid for by Tenant),
and for costs of moving. Notwithstanding anything herein to the contrary, any
condemnation award to Tenant shall be available only to the extent such award
is payable separately to Tenant and does not diminish the award available to
Landlord or any Lender of Landlord and such award shall be limited to the
amount of Rent actually paid by Tenant to Landlord for the period of time for
which the award is given. Any additional portion of such award shall belong
to Landlord.
ARTICLE 12.
REPAIR AND MAINTENANCE
A. TENANT'S OBLIGATIONS. Tenant shall keep the Premises in good
working order, repair (and in compliance with all Laws now or hereafter
adopted) and condition (which condition shall be neat, clean and sanitary,
and free of pests and rodents) and shall make all necessary non-structural
repairs thereto and any repairs to non-Building standard mechanical, HVAC,
electrical and plumbing systems or components in or serving the Premises.
Tenant's obligations hereunder shall include but not be limited to Tenant's
trade fixtures and equipment, security systems, signs, interior decorations,
floor-coverings, wall-coverings, entry and interior doors, interior glass,
light fixtures and bulbs, keys and locks, and alterations to the Premises
whether installed by Tenant or Landlord.
B. LANDLORD'S OBLIGATIONS. Landlord shall make all necessary
structural repairs to the Building and any necessary repairs to the Building
standard mechanical, HVAC, electrical, and plumbing systems in or servicing
the Premises (the cost of which shall be included in Operating Expenses under
Article 4), excluding repairs required to be made by Tenant pursuant to this
Article. Landlord shall have no responsibility to make any repairs unless
and until Landlord receives written notice of the need for such repair.
Landlord shall not be liable for any failure to make repairs or to perform
any maintenance unless such failure shall persist for an unreasonable time
after written notice of the need for such repairs or maintenance is received
by landlord from Tenant. Landlord shall make every reasonable effort to
perform all such repairs or maintenance in such a mariner (in its judgment)
so as to cause minimum interference with Tenant and the Premises but Landlord
shall not be liable to Tenant for any interruption or loss of business
pertaining to such activities. Landlord shall have the right to require that
any damage caused by the willful misconduct of Tenant or any of Tenant's
agents, contractors, employees, invitees or customers, be paid for and
performed by the Tenant (without limiting Landlord's other remedies herein).
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C. SIGNS AND OBSTRUCTIONS. Tenant shall not obstruct or permit
the obstruction of light, halls, Common Areas, roofs, parapets, stairways or
entrances to the Building or the Premises and will not affix, paint, erect or
inscribe any sign, projection, awning, signal or advertisement of any kind to
any part of the Building or the Premises, including the inside or outside of
the windows or doors, without the written consent of Landlord. Landlord
shall have the right to withdraw such consent at any time and to require
Tenant to remove any sign, projection, awning, signal or advertisement to be
affixed to the Building or the Premises. If such work is done by Tenant
through any person, firm or corporation not designated by Landlord, or
without the express written consent of Landlord, Landlord shall have the
right to remove such signs, projections, awnings, signals or advertisements
without being liable to the Tenant by reason thereof and to charge the cost
of such removal to Tenant as Additional Rent, payable within ten (10) days of
Landlord's demand therefor.
D. OUTSIDE SERVICES. Tenant shall not permit, except by Landlord
or a person or company reasonably satisfactory to and approved by Landlord:
(i) the extermination of vermin in, on or about the Premises; (ii) the
servicing of heating, ventilating and air conditioning equipment; (iii) the
collection of rubbish and trash other than in compliance with local
government health requirements and in accordance with the rules and
regulations established by Landlord, which shall minimally provide that
Tenant's rubbish and trash shall be kept in containers located so as not to
be visible to members of the public and in a sanitary and neat condition; or
(iv) window cleaning, janitorial services or similar work in the Premises.
ARTICLE 13.
INSPECTION OF PREMISES
Tenant shall permit the Landlord, the Building Manager and its
authorized representatives to enter the Premises to show the Premises during
Normal Business Hours of Building and at other reasonable times to inspect
the Premises and to make such repairs, improvements, alterations or additions
in the Premises or in the Building of which they are a part as Landlord may
deem necessary or appropriate.
ARTICLE 14.
SURRENDER OF PREMISES
Upon the expiration of the Term, or sooner termination of the Lease,
Tenant shall quit and surrender to Landlord the Premises, broom clean, in
good order and condition, normal wear and tear and damage by fire and other
casualty excepted. All leasehold improvements and other fixtures, such as
light fixtures and HVAC equipment, wall coverings, carpeting and drapes, in
or serving the Premises, whether installed by Tenant or Landlord, shall be
Landlord's property and shall remain, all without compensation, allowance or
credit to Tenant. Any property not removed shall be deemed to have been
abandoned by Tenant and may be retained or disposed of
14
by Landlord at Tenant's expense free of any and all claims of Tenant, as
Landlord shall desire. All property not removed from the Premises by Tenant
may be handled or stored by Landlord at Tenant's expense and Landlord shall
not be liable for the value, preservation or safekeeping thereof. At
Landlord's option all or part of such property may be conclusively deemed to
have been conveyed by Tenant to Landlord as if by xxxx of sale without
payment by Landlord. The Tenant hereby waives to the maximum extent
allowable the benefit of all laws now or hereafter in force in this state or
elsewhere exempting property from liability for rent or for debt.
ARTICLE 15.
HOLDING OVER
Tenant shall pay Landlord 200% of the amount of Rent then applicable
prorated on a per them basis for each day Tenant shall retain possession of
the Premises or any part thereof after expiration or earlier termination of
this Lease, together with all damages sustained by Landlord on account
thereof. The foregoing provisions shall not serve as permission for Tenant
to hold-over, nor serve to extend the Term (although Tenant shall remain
bound to comply with all provisions of this Lease until Tenant vacates the
Premises) and Landlord shall have the right at any time thereafter to enter
and possess the Premises and remove all property and persons therefrom.
ARTICLE 16.
SUBLETTING AND ASSIGNMENT
Tenant shall not, without the prior written consent of Landlord, list
the Premises or any part thereof as available for assignment or sublease with
any broker or agent or otherwise advertise, post, communicate or solicit
prospective assignees or subtenants through any direct or indirect means, nor
assign this Lease or any interest thereunder, or sublet Premises or any part
thereof, or permit the use of Premises by any party other than Tenant. In
the event that during the term of this Lease, Tenant desires; to sublease and
introduces Landlord to a proposed replacement tenant for Tenant, which
replacement tenant has a good reputation, is of financial strength at least
equal to that of Tenant (as determined by Landlord in its sole discretion)
and has a use for Premises and a number of employees reasonably consistent
with that of Tenant's operation, the Landlord may consider such replacement
tenant and notify Tenant with reasonable promptness as to Landlord's choice,
at Landlord's sole discretion, of the following:
(1) That Landlord consents to a subleasing of the Premises
or assignment of the lease to such replacement tenant provided that Tenant
shall remain fully liable for all of its obligations and liabilities under
this Lease and provided further that Landlord shall be entitled to any profit
obtained by Tenant from such subletting or assignment;
(2) That upon such replacement tenant's entering into a
mutually satisfactory new Lease for the Premises with Landlord, then Tenant
shall be released from all further
15
obligations and liabilities under this Lease (excepting only any unpaid
rentals or any unperformed covenants then past due under this Lease or any
guarantee by Tenant of replacement tenant's obligations);
(3) That Landlord declines to consent to such sublease or
assignment due to insufficient or unsatisfactory documentation furnished to
Landlord to establish Tenant's reputation, financial strength and proposed use
of and operations upon Premises; or
(4) That Landlord elects to cancel the Lease and recapture the
Premises (in the case of an assignment) or that Landlord elects to cancel the
Lease as to the portion thereof that Tenant had wished to sublease. In either
such event Tenant shall surrender possession of the Premises, or the portion
thereof which is the subject of Tenant's request on the date set forth in a
notice from Landlord in accordance with the provisions of this lease relating to
the surrender of the Premises. If this Lease shall be canceled as to a portion
of the Premises only, the Rent payable by Tenant hereunder shall be abated
proportionately according to the ratio that the area of the portion of the
Premises surrendered (as computed by Landlord) bears to the area of the Premises
immediately prior to such surrender. If Landlord shall cancel this Lease,
Landlord may relet the Premises, or the applicable portion of the Premises, to
any other party (including, without limitation, the proposed assignee or
subtenant of Tenant), without any liability to Tenant.
In no case may Tenant assign any options to sublessee(s) or assignee(s)
hereunder, all such options being deemed personal to Tenant only. Consent by
Landlord hereunder shall in no way operate as a waiver by Landlord of, or to
release or discharge Tenant from, any liability under this Lease or be construed
to relieve Tenant from obtaining Landlord's consent to any subsequent
assignment, subletting, transfer, use or occupancy.
ARTICLE 17.
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter
placed upon the Building, and all other encumbrances and matters of public
record applicable to the Building, including without limitation, any reciprocal
easement or operating agreements, covenants, conditions and restrictions and
Tenant shall not act or permit the Premises to be operated in violation thereof.
If any foreclosure or power of sale proceedings are initiated by any Lender or a
deed in lieu is granted (or if any ground lease is terminated), Tenant agrees,
upon written request of any such Lender or any purchaser at such foreclosure
sale, to attorn and pay Rent to such party and to execute and deliver any
instruments necessary or appropriate to evidence or effectuate such attornment.
In the event of attornment, no Lender shall be: (i) liable for any act or
omission of Landlord, or subject to any offsets or defenses which Tenant might
have against Landlord (prior to such Lender becoming Landlord under such
attornment); (ii) liable for any security deposit or bound by any prepaid Rent
not actually received by such Lender; or (iii) bound by any future modification
of this Lease not consented to by such Lender. Any Lender may elect to make
this Lease prior to the lien of its Mortgage, and if the Lender under any prior
Mortgage shall require, this Lease shall be prior to any subordinate Mortgage,
and such elections
16
shall be effective upon written notice to Tenant. Tenant agrees to give any
Lender by certified mail, return receipt requested, a copy of any notice of
default served by Tenant upon Landlord, provided that prior to such notice
Tenant has been notified in writing (by way of service on Tenant of a copy of
an assignment of leases, or otherwise) of the name and address of such
Lender. Tenant further agrees that if Landlord shall have failed to cure
such default within the time permitted Landlord for cure under this Lease,
any such Lender whose address has been so provided to Tenant shall have an
additional period of thirty (30) days in which to cure (or such additional
time as may be required due to causes beyond such Lender's control, including
time to obtain possession of the Building by power of sale or judicial action
or deed in lieu of foreclosure). The provisions of this Article shall be
self-operative; however, Tenant shall execute such documentation as Landlord
or any Lender may request from time to time in order to confirm the matters
set forth in this Article in recordable form. To the extent not expressly
prohibited by Law, Tenant waives the provisions of any Law now or hereafter
adopted which may give or purport to give Tenant any right or election to
terminate or otherwise adversely affect this Lease or Tenant's obligations
hereunder if such foreclosure or power of sale proceedings are initiated,
prosecuted or completed.
ARTICLE 18.
ESTOPPEL CERTIFICATE
Tenant shall from time to time, upon written request by Landlord or
Lender, deliver to Landlord or Lender, within ten (10) days after from receipt
of such request, a statement in writing certifying: (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
identifying such modifications and certifying that the Lease, as modified, is in
full force and effect); (ii) the dates to which the Rent has been paid; (iii)
that Landlord is not in default under any provision of this Lease (or if
Landlord is in default, specifying each such default); and (iv) the address to
which notices to Tenant shall be sent; it being understood that any such
statement so delivered may be relied upon in connection with any lease, mortgage
or transfer.
Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that: (i) this Lease is in full force and effect and not
modified except as Landlord may represent; (ii) not more than one month's Rent
has been paid in advance; (iii) there are no defaults by Landlord; and (iv)
notices to Tenant shall be sent to Tenant's Address as set forth in Article I of
this Lease. Notwithstanding the presumptions of this Article, Tenant shall not
be relieved of its obligation to deliver said statement.
ARTICLE 19.
DEFAULTS
If: (i) Tenant fails to pay when due any installment or other payment of
Rent, or to keep in effect any insurance required to be maintained; (ii) Tenant
vacates or abandons the Premises;
17
(iii) Tenant becomes insolvent, makes an assignment for the benefit of
creditors, files a voluntary bankruptcy or an involuntary petition in
bankruptcy is filed against Tenant which petition is not dismissed within
sixty (60) days of its filing; (iv) Tenant fails to perform or observe any of
the other covenants, conditions or agreements contained herein on Tenant's
part to be kept or performed and such failure shall continue for thirty (30)
days after notice thereof given by or on behalf of Landlord; (v) the interest
of Tenant shall be offered for sale or sold under execution or other legal
process; or (vi) if Tenant makes any transfer, assignment, conveyance, sale,
pledge, disposition of all or a substantial portion of Tenant's property,
then any such event or conduct shall constitute a "default" hereunder.
If Tenant shall file a voluntary petition pursuant to the United States
Bankruptcy Reform Act of 1978, as the same may be from time to time be amended
(the "Bankruptcy Code"), or take the benefit of any insolvency act or be
dissolved, or if an involuntary petition be filed against Tenant pursuant to the
Bankruptcy Code and said petition is not dismissed within thirty (30) days after
such filing, or if a receiver shall be appointed for its business or its assets
and the appointment of such receiver is not vacated within thirty (30) days
after such appointment, or if it shall make an assignment for the benefit of its
creditors, then Landlord shall have all of the rights provided for in the event
of nonpayment of the Rent.
If any alleged default on the part of the Landlord hereunder occurs,
Tenant shall give written notice to Landlord in the manner herein set forth and
shall afford Landlord a reasonable opportunity to cure any such default. In
addition, Tenant shall send notice of such default by certified or registered
mail, postage prepaid, to the holder of any Mortgage whose address Tenant has
been notified of in writing, and shall afford such Mortgage holder a reasonable
opportunity to cure any alleged default on Landlord's behalf. In no event will
Landlord be responsible for any damages incurred by Tenant, including but not
limited to, lost profits or interruption of business as a result of any alleged
default by Landlord hereunder.
ARTICLE 20.
REMEDIES OF LANDLORD
The following remedies provided Landlord under this Lease are cumulative:
(1) Upon the occurrence of any default, Landlord may serve
notice on Tenant that the Term and the estate hereby vested in Tenant and any
and all other rights of Tenant hereunder shall cease on the date specified in
such notice and on the specified date this Lease shall cease and expire as fully
and with the effect as if the Term had expired for passage of time.
(2) Without terminating this Lease in case of a default or if
this Lease shall be terminated for default as provided herein, Landlord may
re-enter the Premises, remove Tenant, or cause Tenant to be removed from the
Premises in such manner as Landlord may deem advisable, with or without legal
process, and using such reasonable force as may be necessary. In the event of
re-entry without terminating this Lease, Tenant shall continue to be liable for
all Rents and other charges accruing or coming due under this Lease.
18
(3) If Landlord, without tenninating this Lease, shall re-enter
the Premises or if this Lease shall be terminated as provided in paragraph (1)
above:
(a) All Rent due from Tenant to Landlord shall thereupon
become due and shall be paid up to the time of re-entry, dispossession or
expiration, together with reasonable costs and expenses (including,
without limitation, attorney's fees) of Landlord;
(b) Landlord, without any obligation to do so, may relet
the Premises or any part thereof for a term or terms which may at
Landlord's option be less than or exceed the period which would otherwise
have constituted the balance of the Term and may grant such concessions
in reletting as Landlord, in the exercise of its reasonable business
judgment, deems desirable. In connection with such reletting, Tenant
shall be liable for all costs of the reletting including, without
limitation, rent concessions, leasing commissions, legal fees and
alteration and remodeling costs; and
(c) If Landlord shall have terminated. this Lease,
Tenant shall also be liable to Landlord for all damages provided for in
law and under this Lease resulting from Tenant's breach including,
without limitation, the difference between the aggregate rentals reserved
under the terms of this Lease for the balance of the Term together with
all other sums payable hereunder as Rent for the balance of the Term,
less the fair rental value of the Premises for that period determined as
of the date of such termination. For purposes of this paragraph, Tenant
shall be deemed to include any guarantor or surety of the Lease.
(4) Tenant hereby waives all right to trial by jury in any
claim, action proceeding or counterclaim by either Landlord or Tenant against
each other or any matter arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant, and/or Tenant's use or occupancy or the
Premises.
(5) In addition to the above, Landlord shall have any and all
other rights provided a Landlord under law or equity for breach of a lease or
tenancy by a Tenant.
ARTICLE 21.
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays the
Rent and observes and performs all the terms, covenants, and conditions of this
Lease on Tenant's part to be observed and performed, Tenant may peaceably and
quietly enjoy the Premises subject, nevertheless, to the terms and conditions of
this Lease, and Tenant's possession will not be disturbed by anyone claiming by,
through, or under Landlord.
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ARTICLE 22.
ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of an amount less than full
payment of Rent then due and payable shall be deemed to be other than on account
of the Rent then due and payable, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided for in this Lease or available at law or in equity.
ARTICLE 23.
SECURITY DEPOSIT
To secure the faithful performance by Tenant of all of the covenants,
conditions and agreements set forth in this Lease to be performed by it,
including, without limitation, foregoing such covenants, conditions and
agreements in this Lease which become applicable upon its termination by
re-entry or otherwise, Tenant has deposited with Landlord the sum shown in
Article 1 as a "Security Deposit" on the understanding:
(1) that the Security Deposit or any portion thereof may be
applied to the curing of any default that may exist, without prejudice to any
other remedy or remedies which the Landlord may have on account thereof, and
upon such application Tenant shall pay Landlord on demand the amount so applied
which shall be added to the Security Deposit so the same will be restored to its
original amount;
(2) that should the Premises be conveyed by Landlord, the
Security Deposit or any balance thereof may be turned over to the Landlord's
grantee, and if the same be turned over as aforesaid, Tenant hereby releases
Landlord from any and all liability with respect to the Security Deposit and its
application or return, and Tenant agrees to look solely to such grantee for such
application or return;
(3) that Landlord may commingle the Security Deposit with other
funds and not be obligated to pay Tenant any interest;
(4) that the Security Deposit shall not be considered as
advance payment of Rent or a measure of damages for any default by Tenant, nor
shall it be a bar or defense to any actions by Landlord against Tenant; and
(5) that if Tenant shall faithfully perform all of the
covenants and agreements contained in this Lease on the part of the Tenant to be
performed, the Security Deposit or any then remaining balance thereof, shall be
returned to Tenant, without interest, within thirty (30) days after the
expiration of the Term. Tenant further covenants that it will not assign or
encumber the money deposited herein as a Security Deposit and that neither
Landlord nor its
20
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
ARTICLE 24.
BROKERAGE COMMISSION
Landlord and Tenant represent and warrant to each other that neither has
dealt with any broker, finder or agent except for the Broker(s) identified in
Article 1. Tenant represents and warrants to Landlord that (except with respect
to the Broker identified in Article 1 and with whom Landlord has entered into a
separate brokerage agreement) no broker, agent, commission salesperson, or other
person has represented Tenant in the negotiations for and procurement of this
Lease and of the Premises and that no commissions, fees, or compensation of any
kind are due and payable in connection herewith to any broker, agent commission
salesperson, or other person. Tenant agrees to indemnify Landlord and hold
Landlord harmless from any and all claims, suits, or judgments (including,
without limitation, reasonable attorneys' fees and court costs incurred in
connection with any such claims, suits, or judgments, or in connection with the
enforcement of this indemnity) for any fees, commissions, or compensation of any
kind which arise out of or are in any way connected with any claimed agency
relationship not referenced in Article 1.
ARTICLE 25.
FORCE MAJEURE
Landlord shall be excused for the period of any delay in the performance
of any obligation hereunder when prevented from so doing by a cause or causes
beyond its control, including all labor disputes, civil commotion, war, war-like
operations, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, fire or other casualty,
inability to obtain any material, services or financing, or through acts of God.
Tenant shall similarly be excused for delay in the performance of any obligation
hereunder; provided:
(1) nothing contained in this Section or elsewhere in this
Lease shall be deemed to excuse or permit any delay in the payment of the Rent,
or any delay in the cure of any default which may be cured by the payment of
money;
(2) no reliance by Tenant upon this Section shall limit or
restrict in any way Landlord's right of self-help as provided in this Lease; and
(3) Tenant shall not be entitled to rely upon this Section
unless it shall first have given Landlord notice of the existence of any force
majeure preventing the performance of an obligation of Tenant within five days
after the commencement of the force majeure.
21
ARTICLE 26.
PARKING
A. Landlord hereby grants to Tenant the right, in common with others
authorized by Landlord, to use the parking facilities owned by Landlord subject
to Article 1, and as shown on Exhibit A, if any. Landlord, at its sole
election, may designate the types and locations of parking spaces within the
parking facilities which Tenant shall be allowed to use. Landlord shall have
the right, at Landlord's sole election, to change said types and locations from
time to time; provided, however, such designation shall be uniformly applied and
shall not unfairly favor any tenant in the Building.
B. Commencing on the Commencement Date, Tenant shall pay Landlord the
Parking Fee, if any, shown in Article 1, as Additional Rent, payable monthly in
advance with the Monthly Rent. If there is a Parking Fee shown in Schedule 1,
then thereafter, and throughout the Term, the parking rate for each type of
parking space provided to Tenant hereunder shall be the prevailing parking rate,
as Landlord may designate from time to time, at Landlord's sole election, for
each such type of parking space. In addition to the right reserved hereunder by
Landlord to designate the parking rate from time to time, Landlord shall have
the right to change the parking rate at any time to include therein any amounts
levied, assessed, imposed or required to be paid to any governmental authority
on account of the parking of motor vehicles, including all sums required to be
paid pursuant to transportation controls imposed by the Environmental Protection
Agency under the Clean Air Act of 1970, as amended, or otherwise required to be
paid by any governmental authority with respect to the parking, use, or
transportation of motor vehicles, or the reduction or control of motor vehicle
traffic, or motor vehicle pollution.
C. If requested by Landlord, Tenant shall notify Landlord of the
license plate number, year, make and model of the automobiles entitled to use
the parking facilities and if requested by Landlord, such automobiles shall be
identified by automobile window stickers provided by Landlord, and only such
designated automobiles shall be permitted to use the parking facilities. If
Landlord institutes such an identification procedure, Landlord may provide
additional parking spaces for use by customers and invitees of Tenant on a daily
basis at prevailing parking rates, if any. At Landlord's sole election,
Landlord may make validation stickers available to Tenant for any such
additional parking spaces, provided, however, if Landlord makes validation
stickers available to any other tenant in the Building, Landlord shall make such
validation stickers available to Tenant.
D. The parking facilities provided for herein are provided solely for
the accommodation of Tenant and Landlord assumes no responsibility or liability
of any kind whatsoever from whatever cause with respect to the automobile
parking areas, including adjoining streets, sidewalks, driveways, property and
passageways, or the use thereof by Tenant or tenant's employees, customers,
agents, contractors or invitees.
22
ARTICLE 27.
HAZARDOUS MATERIALS
A. DEFINITION OF HAZARDOUS MATERIALS. The term "Hazardous Materials"
for purposes hereof shall mean any chemical, substance, materials or waste or
component thereof which is now or hereafter listed, defined or regulated as a
hazardous or toxic chemical, substance, materials or waste or component thereof
by any federal, state or local governing or regulatory body having jurisdiction,
or which would trigger any employee or community "right-to-know" requirements
adopted by any such body, or for which any such body has adopted any
requirements for the preparation or distribution of a materials safety data
sheet ("MSDS").
B. NO HAZARDOUS MATERIALS. Tenant shall not transport, use, store,
maintain, generate, manufacture, handle, dispose, release or discharge any
Hazardous Materials. However, the foregoing provisions shall not prohibit the
transportation to and from, and use, storage, maintenance and handling within
the Premises of Hazardous Materials customarily used in the business or activity
expressly permitted to be undertaken in the Premises under Article 6, provided:
(a) such Hazardous Materials shall be used and maintained only in such
quantities as are reasonably necessary for such permitted use of the Premises
and the ordinary course of Tenant's business therein, strictly in accordance
with applicable Law, highest prevailing standards, and the manufacturers'
instructions therefor; (b) such Hazardous Materials shall not be disposed of,
released or discharged in the Building, and shall be transported to and from the
Premises in compliance with all applicable Laws, and as Landlord shall
reasonably require; (c) if any applicable Law or Landlord's trash removal
contractor requires that any such Hazardous Materials be disposed of separately
from ordinary trash, Tenant shall make arrangements at Tenant's expense for such
disposal directly with a qualified and licensed disposal company at a lawful
disposal site (subject to scheduling and approval by Landlord); and (d) any
remaining such Hazardous Materials shall be completely, properly and lawfully
removed from the Building upon expiration or earlier termination of this Lease.
C. NOTICES TO LANDLORD. Tenant shall promptly notify Landlord of:
(i) any enforcement, cleanup or other regulatory action taken or threatened by
any governmental or regulatory authority with respect to the presence of any
Hazardous Materials on the Premises or the migration thereof from or to other
property; (ii) any demands or claims made or threatened by any party relating to
any loss or injury resulting from any Hazardous Materials on the Premises; (iii)
any release, discharge or non-routine, improper or unlawful disposal or
transportation of any Hazardous Materials on or from the Premises or in
violation of this Article; and (iv) any matters where Tenant is required by Law
to give a notice to any goverrunental or regulatory authority respecting any
Hazardous Materials on the Premises. Landlord shall have the right (but not the
obligation) to join and participate, as a party, in any legal proceedings or
actions affecting the Premises initiated in connection with any environmental,
health or safety law. At such times as Landlord may reasonably request, Tenant
shall provide Landlord with a written list, certified to be true and complete,
identifying any Hazardous Materials then used, stored, or maintained upon the
Premises, the use and approximate quantity of each such
23
materials, a copy of any MSDS issued by the manufacturer therefor, and such
other information as Landlord may reasonably require or as may be required by
Law.
D. INDEMNIFICATION OF LANDLORD. If any Hazardous Materials are
released, discharged or disposed of by Tenant or any other occupant of the
Premises, or their employees, agents, invitees or contractors, on or about the
Building in violation of the foregoing provisions, Tenant shall inunediately,
properly and in compliance with applicable Laws clean up, remediate and remove
the Hazardous Materials from the Building and any other affected property and
clean or replace any affected personal property (whether or not owned by
Landlord), at Tenant's expense (without limiting Landlord's other remedies
therefor). Tenant shall further be required to indemnify and hold Landlord,
Landlord's directors, officers, employees and agents harmless from and against
any and all claims, demands, liabilities, losses, damages, penalties and
judgments directly or indirectly arising out of or attributable to a violation
of the provisions of this Article by Tenant, Tenant's occupants, employees,
contractors or agents. Any clean up, remediation and removal work shall be
subject to Landlord's prior written approval (except in emergencies), and shall
include, without limitation, any testing, investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Landlord or any
Lender or governmental body arranges for any tests or studies showing that this
Article has been violated, Tenant shall pay for the costs of such tests. The
provisions of this Article shall survive the expiration or earlier termination
of this Lease.
ARTICLE 28.
ADDITIONAL RIGHTS RESERVED BY LANDLORD
In addition to any other rights provided for herein, Landlord reserves
the following rights, exercisable without liability to Tenant for damage or
injury to property, person or business and without effecting an eviction,
constructive or actual, or disturbance of Tenant's use or possession or giving
rise to any claim:
(1) To name the Building and to change the name or street
address of the Building;
(2) To install and maintain all signs on the exterior and
interior of the Building;
(3) To designate all sources furnishing sign painting or
lettering for use in the Building;
(4) During the last ninety (90) days of the Term, if Tenant has
vacated the Premises, to decorate, remodel, repair, alter or otherwise prepare
the Premises for occupancy, without affecting Tenant's obligation to pay Rent
for the Premises;
24
(5) To have pass keys to the Premises and all doors therein,
excluding Tenant's vaults and safes;
(6) On reasonable prior notice to Tenant, to exhibit the
Premises to any prospective purchaser, Lender, mortgagee, or assignee of any
mortgage on the Building or Land and to others having an interest therein at any
time during the Term, and to prospective tenants during the last six months of
the Term;
(7) To take any and all measures, including entering the
Premises for the purpose of making inspections, repairs, alterations, additions
and improvements to the Premises or to the Building (including for the purpose
of checking, calibrating, adjusting and balancing controls and other parts of
the Building Systems), as may be necessary or desirable for the operation,
improvement, safety, protection or preservation of the Premises or the Building,
or in order to comply with all Laws, orders and requirements of governmental or
other authority, or as may otherwise be permitted or required by this Lease;
provided, however, that during the progress of any work on the Premises or at
the Building, Landlord will attempt not to inconvenience Tenant, but shall not
be liable for inconvenience, annoyance, disturbance, loss of business, or other
damage to Tenant by reason of performing any work or by bringing or storing
materials, supplies, tools or equipment in the Building or Premises during the
performance of any work, and the obligations of Tenant under this Lease shall
not thereby be affected in any manner whatsoever;
(8) To relocate various facilities within the Building and on
the land of which the Building is a part if Landlord shall determine such
relocation to be in the best interest of the development of the Building and
Property, provided that such relocation shall not materially restrict access to
the Premises; and
(9) To install vending machines of all kinds in the Building
and to receive all of the revenue derived therefrom, provided, however, that no
vending machines shall be installed by Landlord in the Premises unless Tenant so
requests.
ARTICLE 29.
DEFINED TERMS
A. "Building" shall refer to the Building named in Article 1 of which
the leased Premises are a part (including all modifications, additions and
alterations made to the Building during the term of this Lease), the real
property on which the same is located, all plazas, common areas and any other
areas located on said real property and designated by Landlord for use by all
tenants in the Building. A plan showing the Building is attached hereto as
Exhibit A and made a part hereof and the Premises is defined in Article 2 and
shown on said Exhibit A by cross-hatched lines.
B. "Common Areas" shall mean and include all areas, facilities,
equipment, directories and signs of the Building (exclusive of the Premises and
areas leased to other
25
Tenants) made available and designated by Landlord for the common and joint
use and benefit of Landlord, Tenant and other tenants and occupants of the
Building including, but not limited to, lobbies, public washrooms, hallways,
sidewalks, parking areas, landscaped areas and service entrances. Common
Areas may further include such areas in adjoining properties under reciprocal
easement agreements, operating agreements or other such agreements now or
hereafter in effect and which are available to Landlord, Tenant and Tenant's
employees and invitees. Landlord reserves the right in its sole discretion
and from time to time, to construct, maintain, operate, repair, close, limit,
take out of service, alter, change, and modify all or any part of the Common
Areas.
C. "Default Rate" shall mean eighteen percent (18%) per annum, or the
highest rate permitted by applicable law, whichever shall be less. If the
application of the Default Rate causes any provision of this Lease to be
usurious or unenforceable, the Default Rate shall automatically be reduced so as
to prevent such result.
D. "Hazardous Materials" shall have the meaning set forth in Article
27.
E. "Landlord" and "Tenant" shall be applicable to one or more parties
as the case may be, and the singular shall include the plural, and the neuter
shall include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
F. "Law" or "Laws" shall mean all federal, state, county and local
governmental and municipal laws, statutes, ordinances, rules, regulations,
codes, decrees, orders and other such requirements, applicable equitable
remedies and decisions by courts in cases where such decisions are binding
precedents in the state in which the Building is located, and decisions of
federal courts applying the Laws of such state.
G. "Lease" shall mean this lease executed between Tenant and
Landlord, including any extensions, amendments or modifications and any Exhibits
attached hereto.
H. "Lease Year" shall mean each calendar year or portion thereof
during the Term.
I. "Lender" shall mean the holder of a Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessee.
J. "Mortgage" shall mean all mortgages, deeds of trust, ground leases
and other such encumbrances now or hereafter placed upon the Building or any
part thereof with the written consent of Landlord, and all renewals,
modifications, consolidations, replacements or extensions thereof, and all
indebtedness now or hereafter secured thereby and all interest thereon.
K. "Operating Expenses" shall mean all operating expenses of any kind
or nature which are necessary, ordinary or customarily incurred in connection
with the operation,
26
maintenance or repair of the Building as determined by Landlord. Operating
Expenses shall include, but not be limited to:
(1) costs of supplies, including, but not limited to, the cost
of relamping all Building standard lighting as the same may be required from
time to time;
(2) costs incurred in connection with obtaining and providing
energy for the Building, including, but not limited to, costs of propane,
butane, natural gas, steam, electricity, solar energy and fuel oils, coal or any
other energy sources;
(3) costs of water and sanitary and storm drainage services;
(4) costs of janitorial and security services;
(5) costs of general maintenance and repairs, including costs
under HVAC and other mechanical maintenance contracts and maintenance, repairs
and replacement of equipment and tools used in connection with operating the
Building;
(6) costs of maintenance and replacement of landscaping;
(7) insurance premiums, including fire and all-risk coverage,
together with loss of rent endorsements, the part of any claim required to be
paid under the deductible portion of any insurance policies carried by Landlord
in connection with the Building (where Landlord is unable to obtain insurance
without such deductible from a major insurance carrier at reasonable rates),
public liability insurance and any other insurance carried by Landlord on the
Building, or any component parts thereof (all such insurance shall be in such
amounts as may be required by any holder of a Mortgage or as Landlord may
reasonably determine);
(8) labor costs, including wages and other payments, costs to
Landlord of worker's compensation and disability insurance, payroll taxes,
welfare fringe benefits, and all legal fees and other costs or expenses incurred
in resolving any labor dispute;
(9) professional building management fees required for
management of the Building;
(10) legal, accounting, inspection, and other consultation fees
(including, without limitation, fees charged by consultants retained by Landlord
for services that are designed to produce a reduction in Operating Expenses or
to reasonably improve the operation, maintenance or state of repair of the
Building) incurred in the ordinary course of operating the Building or in
connection with making the computations required hereunder or in any audit of
operations of the Building;
(11) the costs of capital improvements or structural repairs or
replacements made in or to the Building in order to conform to changes,
subsequent to the date of this Lease, in any applicable laws, ordinances, rules,
regulations or orders of any governmental or quasigovernmental authority having
jurisdiction over the Building (herein "Required Capital
27
Improvements") or the costs incurred by Landlord to install a new or
replacement capital item for the purpose of reducing Operating Expenses
(herein "Cost Savings Improvements"), and a reasonable reserve for all other
capital improvements and structural repairs and replacements reasonably
necessary to permit Landlord to maintain the Building in its current class.
The expenditures for Required Capital Improvements and Cost Savings
Improvements shall be amortized over the useful life of such capital
improvement or structural repair or replacement (as determined by Landlord).
All costs so amortized shall bear interest on the amortized balance at the
rate of twelve percent (12%) per annum or such higher rate as may have been
paid by Landlord on funds borrowed for the purpose of constructing these
capital improvements.
In making any computations contemplated hereby, Landlord shall also be
permitted to make such adjustments and modifications to the provisions of this
paragraph and Article 4 as shall be reasonable and necessary to achieve the
intention of the parties hereto.
L. "Rent" shall have the meaning specified therefor in Article 3.
M. "Tax" or "Taxes" shall mean:
(1) all real property taxes and assessments levied against the
Building by any governmental or quasi-governmental authority. The foregoing
shall include all federal, state, county, or local governmental, special
district, improvement district, municipal or other political subdivision taxes,
fees, levies, assessments, charges or other impositions of every kind and
nature, whether general, special, ordinary or extraordinary, respecting the
Building, including without limitation, real estate taxes, general and special
assessments, interest on any special assessments paid in installments, transit
taxes, water and sewer rents, taxes based upon the receipt of rent, personal
property taxes imposed upon the fixtures, machinery, equipment, apparatus,
appurtenances, furniture and other personal property used in connection with the
Building which Landlord shall pay during any calendar year, any portion of which
occurs during the Term (without regard to any different fiscal year used by such
government or municipal authority except as provided below). Provided, however,
any taxes which shall be levied on the rentals of the Building shall be
determined as if the Building were Landlord's only property, and provided
further that in no event shall the term "taxes or assessment," as used herein,
include any net federal or state income taxes levied or assessed on Landlord,
unless such taxes are a specific substitute for real property taxes. Such term
shall, however, include gross taxes on rentals. Expenses incurred by Landlord
for tax consultants and in contesting the amount or validity of any such taxes
or assessments shall be included in such computations.
(2) all "assessments", including so-called special assessments,
license tax, business license fee, business license tax, levy, charge, penalty
or tax imposed by any authority having the direct power to tax, including any
city, county, state or federal government, or any school, agricultural,
lighting, water, drainage, or other improvement or special district thereof,
against the Premises of the Building or any legal or equitable interest of
Landlord therein. For the purposes of this lease, any special assessments shall
be deemed payable in such number of installments as is permitted by law, whether
or not actually so paid. If as of the Commencement Date the Building has not
been fully assessed as a completed project, for the purpose of computing, the
Operating Expenses for any adjustment required herein or under Article 4, the
28
Tax shall be adjusted by Landlord, as of the date on which the adjustment is
to be made, to reflect full completion of the Building including all standard
Tenant finish work. If the method of taxation of real estate prevailing to
the time of execution hereof shall be, or has been altered, so as to cause
the whole or any part of the taxes now, hereafter or theretofore levied,
assessed or imposed on real estate to be levied, assessed or imposed on
Landlord, wholly or partially, as a capital levy or otherwise, or on or
measured by the rents received therefrom, then such new or altered taxes
attributable to the Building shall be included within the term real estate
taxes, except that the same shall not include any enhancement of said tax
attributable to other income of Landlord. All of the preceding clauses M (1)
and (2) are collectively referred to as the "Tax" or "Taxes".
All other capitalized terms shall have the definition set forth in the Lease.
ARTICLE 30.
MISCELLANEOUS PROVISIONS
A. RULES AND REGULATIONS. Tenant shall comply with all of the rules
and regulations promulgated by Landlord from time to time for the Building. A
copy of the current rule and regulations is attached hereto as Exhibit D.
B. EXECUTION OF LEASE. If more than one person or entity executes
this Lease as Tenant, each such person or entity shall be jointly and severally
liable for observing and performing each of the terms, covenants, conditions and
provisions to be observed or performed by Tenant.
C. NOTICES. All notices under this Lease shall be in writing and
will be deemed sufficiently given for all purposes if, to Tenant, by delivery to
Tenant at the Premises during the hours the Building is open for business or by
certified mail, return receipt requested or by overnight delivery service (with
one acknowledged receipt), to Tenant at the address shown in Article 1, with a
copy as provided in Article 1, and if to Landlord, by certified mail, return
receipt requested or by overnight delivery service (with one acknowledged
receipt), at the address shown in Article 1, with a copy to the Building Manager
at address shown in Article 1.
D. TRANSFERS. The term "Landlord" appearing herein shall mean only
the owner of the Building from time to time and, upon a sale or transfer of its
interest in the Building, the then Landlord and transferring party shall have no
further obligations or liabilities for matters accruing after the date of
transfer of that interest and Tenant, upon such sale or transfer, shall look
solely to the successor owner and transferee of the Building for performance of
Landlord's obligations hereunder.
E. RELOCATION. Landlord shall be entitled during the Lease Term to
cause Tenant to relocate from the Premises to a comparable space within the
Building (a "Relocation Space") at any time after reasonable notice, which
notice shall give Tenant no less than sixty (60) days advance notice. Landlord
or the third party tenant replacing Tenant shall pay the expense of
29
moving Tenant to a space within the Building comparable to the Premises and
providing comparable leasehold improvements. Such a relocation shall not
terminate, modify or otherwise affect the Lease, except with respect to the
location of the Premises from and after the date of such relocation.
"Premises", shall, thereafter, refer to the Relocation Space into which
Tenant has been moved, rather than the original Premises as herein defined.
F. TENANT FINANCIAL STATEMENTS. Upon the written request of
Landlord, Tenant shall submit financial statements for its most recent financial
reporting period and for the prior Lease Year. Landlord shall make such request
no more than twice during any Lease Year. All such financial statements shall
be certified as true and correct by the responsible officer or partner of Tenant
and if Tenant is then in default hereunder, the financial statements shall be
certified by an independent certified public accountant.
G. RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease
shall be construed by the parties hereto, or by any third party, as constituting
the parties as principal and agent, partners or joint venturers, nor shall
anything herein render either party (other than a guarantor) liable for the
debts and obligations of any other party, it being understood and agreed that
the only relationship between Landlord and Tenant is that of Landlord and
Tenant.
H. ENTIRE AGREEMENT; MERGER. This Lease embodies the entire
agreement and understanding between the parties respecting the Lease and the
Premises and supersedes all prior negotiations, agreements and understandings
between the parties, all of which are merged herein. No provision of this Lease
may be modified, waived or discharged except by an instrument in writing signed
by the party against which enforcement of such modification, waiver or discharge
is sought.
I. NO REPRESENTATION BY LANDLORD. Neither Landlord nor any agent of
Landlord has made any representations, warranties, or promises with respect to
the Premises or the Building except as expressly set forth herein.
J. LIMITATION OF LIABILITY. Notwithstanding any provision in this
Lease to the contrary, under no circumstances shall Landlord's liability or that
of its directors, officers, employees and agents for failure to perform any
obligations arising out of or in connection with the Lease or for any breach of
the terrns or conditions of this Lease (whether written or implied) exceed
Landlord's equity interest in the Building. Any judgments rendered against
Landlord shall be satisfied solely out of proceeds of sale of Landlord's
interest in the Building. No personal judgment shall lie against Landlord upon
extinguishment of its rights in the Building and any judgments so rendered shall
not give rise to any right of execution or levy against Landlord's assets. The
provisions hereof shall inure to Landlord's successors and assigns including any
Lender. The foregoing provisions are not intended to relieve Landlord from the
performance of any of Landlord's obligations under this Lease, but only to limit
the personal liability of Landlord in case of recovery of a judgment against
Landlord; nor shall the foregoing be deemed to limit Tenant's rights to obtain
injunctive relief or specific performance or other remedy which may be accorded
Tenant by law or under this Lease. If Tenant claims or asserts that Landlord
has violated or failed to perform a covenant under the Lease, Tenant's sole
remedy shall be an action for specific performance, declaratory judgment or
injunction and in no event
30
shall Tenant be entitled to any money damages in any action or by way of set
off, defense or counterclaim and Tenant hereby specifically waives the right
to any money damages or other remedies for any such violation or failure.
K. MEMORANDUM OF LEASE. Neither party, without the written consent
of the other, will execute or record any this Lease or any sununary or
memorandum of this Lease in any public recorders office.
L. NO WAIVERS: AMENDMENTS. Failure of Landlord to insist upon strict
compliance by Tenant of any condition or provision of this Lease shall not be
deemed a waiver by Landlord of that condition. No waiver shall be effective
against Landlord unless in writing and signed by Landlord. Similarly, this
Lease cannot be amended except by a writing signed by Landlord and Tenant.
M. SUCCESSORS AND ASSIGNS. The conditions, covenants and agreements
contained herein shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
assigns.
N. GOVERNING LAW. This Lease shall be governed by the law of the
State where the Building is located.
O. EXHIBITS. All exhibits attached to this Lease are a part hereof
and are incorporated herein by reference and all provisions of such exhibits
shall constitute agreements, promises and covenants of this Lease.
P. CAPTIONS. The captions and headings used in this Lease are for
convenience only and in no way define or limit the scope, interpretation or
content of this Lease.
Q. COUNTERPARTS. This Lease may be executed in one (1) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
31
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have duty executed this Lease with the Exhibits and Rider attached hereto, as of
the date first written above.
Attest or Witness: LANDLORD:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: CORNERSTONE REAL ESTATE
ADVISERS, INC., its agent
By:
--------------------------------
Name Typed:
---------------------
Title:
--------------------------
Attest or Witness: TENANT:
AUTHORISZOR INC.
By:
-------------------------------------
Name Typed:
--------------------------
Title:
-------------------------------
32
CERTIFICATE OF TENANT
(If A Corporation, Partnership or Limited Liability Company)
I, _____________________, Secretary / General Partner / Managing Member
of ________________________, Tenant, hereby certify that the officers executing
the foregoing Lease on behalf of Tenant is/are duly authorized to act on behalf
of and bind the Tenant.
(Corporate Seal)
Secretary or General Partner or Managing Member
------------------------------------------------
Date:
--------------------
33
EXHIBIT A
Plan Showing Property and Premises
[FLOOR PLAN OF LANDMARK ONE, BURLINGTON, MA, 5TH FLOOR]
1
EXHIBIT A
Plan Showing Property and Premises
2
EXHIBIT B
Landlord's Work Letter
WORK LETTER AGREEMENT
April ___, 2000
TO:
Authoriszor Inc.
Xxx Xxx xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
RE: PREMISES LOCATED AT XXX XXX XX XXXXXX XXXXX,
XXXXXX 000 & 503, BURLINGTON, M 01863
Simultaneously with the execution of this Work Letter Agreement, you ("Tenant")
and Massachusetts Mutual Life Insurance Company ("Landlord") are entering into a
lease (the "Lease") pertaining to the space referred to above (the "Premises").
In consideration of the covenants contained in this Work Letter Agreement and in
the Lease, Landlord and Tenant agree as follows:
TENANT'S PLANS
1. Tenant desires Landlord to perform certain leasehold
improvement work (the "Work") in the Premises pursuant to a
space plan (the "Plan") for the Work prepared by __________
dated __________, a copy of which is attached hereto as
Schedule 1. Not later than __________, Tenant shall
furnish to Landlord such additional plans, drawings,
specifications and finish details in sufficient detail to
enable Landlord's architects and engineers to prepare the
Working Drawings (as defined in Paragraph 2 below),
including a final telephone layout and special electrical
connection requirements, if any. The Work and all plans,
drawings and specifications to be furnished by Tenant shall
be subject to Landlord's approval. Approval by Landlord of
the Work and the Plan shall not constitute any warranty by
Landlord to Tenant of the adequacy of the design for
Tenant's intended use of the Premises nor shall Landlord's
approval of the Plan create any liability or responsibility
on the part of Landlord for compliance with applicable
statutes, ordinances, regulations, laws, codes and industry
standards relating to handicap discrimination (including,
without limitation, the Americans with Disabilities Act).
1
WORKING DRAWINGS
2. If necessary for the performance of the Work, Landlord
shall prepare final Working Drawings and specifications for
the Work (the "Working Drawings") based upon and consistent
with the Plan and the plans, drawings, specifications,
finish details and other information furnished by Tenant to
Landlord under Paragraph 1 above. Tenant shall approve the
Working Drawings within three (3) days after receipt of
same from Landlord.
PERFORMANCE OF THE WORK
3. Except as hereinafter provided to the contrary, Landlord
shall perform the Work shown on the Plan and Working
Drawings using (except as may be stated or shown in the
Plan or the Working Drawings) building standard materials
and quantities ("Building Standards"). Landlord shall pay
for a portion of the cost of the Work in an amount not to
exceed $60,500.00 (the "Allowance") and Tenant shall pay
for any and all costs and expenses associated with the Work
(including, without limitation, such additional expenses
which result from any special work, materials, finishes or
installations required by Tenant, unforeseen field
conditions, or from any delays in the Work occasioned by
Tenant) in excess of the Allowance. Tenant shall not be
entitled to any credit or payment from Landlord for any
portion of the Allowance not utilized by Tenant.
PAYMENT
4. Prior to commencing the Work, Landlord will submit to
Tenant a written statement of the cost of the entire
portion of the Work shown on the Plan and Working Drawings,
which cost shall include a 15% add-on charge for Landlord's
field supervision, administration and overhead. Tenant
agrees, within three (3) days after submission to it of such
statement of cost, to execute and deliver to Landlord, in the
form then in use by Landlord, an authorization to proceed with
that portion of the Work to be paid for by Tenant, and Tenant
shall also then pay to Landlord the amount set forth in
Landlord's statement. Delays in the performance of the Work
resulting from the failure of Tenant to comply with the
provisions of the preceding sentence shall be deemed to be
delays caused by Tenant. No Work shall be commenced until
Tenant has fully complied with the preceding portions of this
Paragraph 4.
SUBSTANTIAL COMPLETION
5. Landlord shall cause the Work to be "substantially
completed" as soon as reasonably possible, subject to
delays described in Articles 2 and 25 of the Lease and
delays described in Paragraph 6 of this Work Letter
Agreement.
2
The Work shall be considered "substantially completed" for all
purposes under this Work Letter Agreement and the Lease if and
when Landlord's architect issues a written certificate to
Landlord and Tenant, certifying that the Work has been
completed (except for minor finish-out and "punchlist" terms)
in substantial compliance with the Plans and, if applicable,
the Working Drawings, or when Tenant first takes occupancy of
the Premises, whichever first occurs. If the Work is
substantially completed prior to the Commencement Date as set
forth in Article I.H. of the Lease, then the Commencement Date
of the Lease shall be advanced to the date on which the Work
is substantially completed, and the Expiration Date shall be
similarly advanced for a number of days equal to the number of
days the Commencement Date is advanced.
TENANT DELAYS
6. There shall be no extension of the date described in Item
11 of the Schedule in the Lease (as permissibly extended
under Paragraph 5 above) if the Work has not been
substantially completed on said date by reason of any delay
attributable to Tenant, including without limitation:
(i) the failure of Tenant to furnish all plans, drawings,
specifications, finish details or the other information
required under Paragraph 1 above on or before the date
stated in Paragraph 1;
(ii) the failure of Tenant to comply with the requirements of
Paragraph 4 above;
(iii) Tenant's requirements for special work or materials,
finishes, or installations other than the Building
Standards;
(iv) the performance of any other work in the Premises by any
person, firm or corporation employed by or on behalf of
Tenant, or any failure to complete or delay in completion
of such work; or
(v) any other act or omission of Tenant.
ADDITIONAL WORK
7. Upon Tenant's request and submission by Tenant (at Tenant's
sole cost and expense) of the necessary information and/or
plans and specifications for work other than the Work
specified in the Plan and Working Drawings (the "Additional
Work"), Landlord may, at its election, perform the
Additional Work, at Tenant's sole cost and expense. Prior
to commencing any Additional Work requested by Tenant,
Landlord shall submit to Tenant a written statement of the
cost of such Additional Work which cost shall include a 15%
add-on Charge for Landlord's field supervision,
3
administration and overhead and a proposed Tenant Extra
Order (the "TEO") for Additional Work in the standard form
then in use by Landlord. If Tenant shall fail to enter into
said TEO within one (1) week after Tenant's receipt
thereof, Landlord shall proceed to do only the Work
specified in the Plan and Working Drawings. Tenant agrees
to pay to Landlord, concurrently with its execution of the
TEO, the entire cost of the Additional Work as shown in the
statement delivered by Landlord.
TENANT ACCESS
8. Landlord, in Landlord's discretion and upon request by
Tenant, may grant to Tenant and Tenant's agents a license
to enter the Premises prior to the date designated in the
Lease for the commencement of the Term in order that Tenant
may do other work required by Tenant to make the Premises
ready for Tenant's use and occupancy. It shall be a
condition to the grant by Landlord and continued
effectiveness of such license that:
(a) Tenant shall give to Landlord not less than five (5) days'
prior written notice of its request to have such access to
the Premises, which notice shall contain and/or shall be
accompanied by: (i) a description of and schedule for the
work to be performed by those persons and entities for whom
and which such access is being requested; (ii) the names
and addresses of all contractors, subcontractors and
material suppliers for whom and which such early access is
being requested and the approximate number of individuals,
itemized by trade, who will be present in the Premises;
(iii) copies of all contracts pertaining to the performance
of the work for which such early access is being requested;
(iv) copies of all plans and specifications pertaining to
the work for which such access is being requested; (v)
copies of all licenses and permits required in connection
with the performance of the work for which such access is
being requested; (vi) certificates of insurance (in amounts
and with insured parties satisfactory to Landlord) and
instruments of indemnification against all claims, costs,
expenses, damages and liabilities which may arise in
connection with such work; and (vii) assurances of the
availability of funds sufficient to pay for all such work.
All of the foregoing shall be subject to Landlord's
approval, which shall not be unreasonably withheld.
(b) Such early access shall be subject to scheduling by
Landlord.
(c) Tenant's agents, contractors, workmen, mechanics, suppliers
and invitees shall work in harmony and not interfere with
Landlord and Landlord's agents in performing the Work any
Additional Work in the Premises, Landlord's work in other
premises and in common areas of the Building, or the
general operation of the Building. If at any time such
entry shall cause or threaten to cause such disharmony,
Landlord may withdraw such license upon twenty-four (24)
hours' prior written notice to Tenant.
4
Any such entry into and occupation of the Premises by
Tenant shall be deemed to be under all of the terms,
covenants, conditions and provisions of the Lease,
excluding only the covenant to pay Rent and specifically
including the provisions of Section 11 thereof. Landlord
shall not be liable for any injury, loss or damage which
may occur to any of Tenant's work or installations made in
the Premises or to property placed therein prior to the
commencement of the Term, the same being at Tenant's sole
risk and liability. Tenant shall be liable to Landlord for
any damage to the Premises or to any portion of the Work
caused by Tenant or any of Tenant's employees, agents,
contractors, workmen or suppliers. In the event the
performance of the work by Tenant, its agents, employees or
contractors causes extra costs to Landlord or requires the
use of elevators during hours other than 8:00 a.m. to 4:30
p.m. on Monday through Friday (except holidays), Tenant
shall reimburse Landlord for the entire extra cost and the
cost incurred by Landlord for the engineers or operators
under applicable union regulations or contracts.
9. The terms and provisions of the Lease, insofar as they are
applicable to this Work Letter Agreement, are hereby
incorporated herein by reference.
10. All amounts payable by Tenant to Landlord hereunder shall
be deemed to be Rent under the Lease and upon any default
in the payment of same, Landlord shall have all of the
rights and remedies provided for in the Lease.
5
[AUTHORIZOR LOGO]
EXHIBIT B
LANDLORD'S WORK LETTER
WORK LETTER AGREEMENT - PLANNED RENOVATIONS TO SUITE 502
Following are the leasehold improvements that the Tenant requires for the
premises. As all of these renovations will not be completed prior to the
Tenant's planned May 1, 2000 occupancy, the Tenant agrees to work with the
Landlord's construction team to allow renovations to occur, provided that the
renovations do not disrupt normal working requirements of the Tenant.
Refer to the attached floor plan diagram for a reference of the indicated
renovations.
The following leasehold improvements that are to be completed prior the Tenant's
occupancy:
1. All carpets will be cleaned and disinfected;
2. Kitchen area will be thoroughly cleaned, floor waxed and walls painted.
The following renovations are to be done, as soon as possible, after the Tenant
takes occupancy:
1. Relocate front glass door [1] from to the front entry [2] off of the
common area hallway.
2. Remove dark paneling [4] from main entrance area, and refinish wall (i.e.
paint or wallpaper, to be determined).
3. Modify coat closets [3] in the entrance to one larger closet with double
doors.
4. Move reception desk [5] out to the modified reception area [6] under the
vaulted ceiling. Build wall [6A].
5. Install internet, phone and electrical power to the new reception area
[6].
6. Remove red wall [7] in former reception area. Also remove closets in
areas [7A].
7. Remove wall [8] that has shelving on it. Install shelving to new
copy/mail room [9].
8. Remove walls of the old mail room area [10].
9. Remove carpet in new, mail room [9] and install tile floor.
10. Square off computer room [11] eliminating area [11A]. Build a wall [12],
installing a sidelight door (from office [13]) that will be removed with
the removal of wall [7], and creating a walk way [14]. Install security
lock on the door.
11. Remove office wall [15].
12. In area [16], remove the wall to create one large office, with a
sidelight door entrance. Install a security lock.
13. Install electrical outlets on the exterior wall of area [17].
14. New conference room is be built out in a designated area, either area
[17] or [18].
15. Replace all carpeting.
16. Modify ceiling, lighting and sprinkler system to conform with office
renovations.
17. Paint or wallpaper all interior walls.
[FLOOR PLAN OF LANDMARK ONE, BURLINGTON, MA, 5TH FLOOR, 11,950 RSF]
TENANT:
AUTHORISZOR INC.
By:
----------------------
Title:
-------------------
LANDLORD:
MASSACHUSETI'S MUTUAL
LIFE INSURANCE COMPANY, a Massachusetts corporation
By: CORNERSTONE REAL ESTATE
ADVISERS, INC., its agent
By:
----------------------
Title:
-------------------
6
EXHIBIT C
Tenant's Work - None
7
EXHIBIT D
BUILDING'S RULES AND REGULATIONS AND JANITORIAL SPECIFICATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the
premises demised to any tenant or occupant.
2. No awnings or other projection shall be attached to the outside walls or
windows of the Building without the prior consent of Landlord. No curtains,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of the premises demised to any tenant or
occupant, without the prior consent of Landlord. Such awnings, projections,
curtains, blinds, shades, screens or other fixtures must be of a quality, type,
design and color, and attached in a manner, approved by Landlord.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside of
the premises demised to any tenant or occupant of the Building without the prior
consent of Landlord. Interior signs on doors and directory tables, if any, shall
be of a size, color and style approved by Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed, nor shall any bottles, parcels, or
other articles be placed on any window xxxxx.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other public parts of the Building.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. No
tenant shall bring or keep, or permit to be brought or kept, any inflammable,
combustible, explosive or hazardous fluid, materials, chemical or substance in
or about the premises demised to such tenant.
7. No tenant or occupant shall xxxx, paint, drill into, or in any way deface
any part of the Building or the premises demised to such tenant or occupant. No
boring, cutting or stringing of wires shall be permitted, except with the prior
consent of Landlord, and as Landlord may direct. No tenant or occupant shall
install any resilient tile or similar floor covering in the premises demised to
such tenant or occupant except in a manner approved by Landlord.
8. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the premises demised to any tenant. No cooking shall be done
or permitted in the Building by any tenant without the approval of the Landlord.
No tenant shall cause or permit any unusual or objectionable odors to emanate
from the premises demised to such tenant.
8
9. No space in the Building shall be used for manufacturing, for the storage
of merchandise, or for the sale of merchandise, goods, or property of any kind
at auction, without the prior consent of Landlord.
10. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set or other audio device, unmusical noise,
whistling, singing, or in any other way. Nothing shall be thrown out of any
doors or window.
11. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows, nor shall any changes be made in locks or the mechanism
thereof. Each tenant must, upon the termination of its tenancy, restore to
Landlord all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such tenant.
12. All removals from the Building, or the carrying in or out of the Building
or the premises demised to any tenant, of any safes, freight, furniture or bulky
matter of any description must take place at such time and in such manner as
Landlord or its agents may determine, from time to time. Landlord reserves the
right to inspect all freight to be brought into the Building and to exclude from
the Building all freight which violates any of the Rules and Regulations or the
provisions of such tenant's lease.
13. No tenant shall use or occupy, or permit any portion of the premises
demised to such tenant to be used or occupied, as an office for a public
stenographer or typist, or to a xxxxxx or manicure shop, or as an employment
bureau. No tenant or occupant shall engage or pay any employees in the
Building, except those actually working for such tenant or occupant in the
Building, nor advertise for laborers giving an address at the Building.
14. No tenant or occupant shall purchase spring water, ice, food, beverage,
lighting maintenance, cleaning towels or other like service, from any company or
person not approved by Landlord. No vending machines of any description shall
be installed, maintained or operated upon the premises demised to any tenant
without the prior consent of Landlord.
15. Landlord shall have the right to prohibit any advertising by any tenant
or occupant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon notice from
Landlord, such tenant or occupant shall refrain from or discontinue such
advertising.
16. Landlord reserves the right to exclude from the Building, between the
hours of 6:00 P.M. and 8:00 A.M. on business days and at all hours on Saturdays,
Sundays and holidays, all persons who do not present a pass to the Building
signed by Landlord. Landlord will furnish passes to persons for whom any tenant
requests such passes. Each tenant shall be responsible for all persons for whom
it requests such passes and shall be liable to Landlord for all acts of such
persons.
9
17. Each tenant, before closing and leaving the premises demised to such
tenant at any time, shall see that all entrance doors are locked and all windows
closed. Corridor doors, when not in use, shall be kept closed.
18. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Landlord's agents, contractors and employees
while performing janitorial or other cleaning services and making repairs or
alterations in said premises.
19. No premises shall be used, or permitted to be used for lodging or
sleeping, or for any immoral or illegal purposes.
20. The requirements of tenants will be attended to only upon application at
the office of Landlord. Building employees shall not be required to perform,
and shall not be requested by any tenant or occupant to perform, and work
outside of their regular duties, unless under specific instructions from the
office of Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
22. There shall not be used in the Building, either by any tenant or occupant
or by their agents or contractors, in the delivery or receipt of merchandise,
freight, or other matter, any hand trucks or other means of conveyance except
those equipped with rubber tires, rubber side guards and such other safeguards
as Landlord may require.
23. If the Premises demised to any tenant become infested with vermin, such
tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
24. No premises shall be used, or permitted to be used, at any time, without
the prior approval of Landlord, as a store for the sale or display of goods,
wares or merchandise of any kind, or as a restaurant, shop, booth, bootblack or
other stand, or for the conduct of any business or occupation which
predominantly involves direct patronage of the general public in the premises
demised to such tenant, or for manufacturing or for other similar purposes.
25. No tenant shall clean any window in the Building from the outside.
26. No tenant shall move, or permit to be moved, into or out of the Building
or the premises demised to such tenant, any heavy or bulky matter, without the
specific approval of Landlord. If any such matter requires special handling,
only a qualified person shall be employed to perform such special handling. No
tenant shall place, or permit to be placed, on any part of the floor or floors
of the premises demised to such tenant, a load exceeding the floor load per
square foot which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of safes and
other heavy matter, which must be placed so as to distribute the weight.
10
27. Landlord shall provide and maintain an alphabetical directory board in
the first floor (main lobby) of the Building and no other directory shall be
permitted without the prior consent of Landlord. Each tenant shall be allowed
one line on such board unless otherwise agreed to in writing.
28. With respect to work being performed by a tenant in its premises with the
approval of Landlord, the tenant shall refer all contractors, contractors'
representatives and installation technicians to Landlord for its supervision,
approval and control prior to the performance of any work or services. This
provision shall apply to all work performed in the Building including
installation of telephones, telegraph equipment, electrical devices and
attachments, and installations of every nature affecting floors, walls,
woodwork, trim, ceilings, equipment and any other physical portion of the
Building.
29. Landlord shall not be responsible for lost or stolen personal property,
equipment, money, or jewelry from the premises of tenants or public rooms
whether or not such loss occurs when the Building or the premises are locked
against entry.
30. Landlord shall not permit entrance to the premises of tenants by use of
pass keys controlled by Landlord, to any person at any time without written
permission from such tenant, except employees, contractors, or service personnel
directly supervised by Landlord and employees of the United States Postal
Service.
31. Each tenant and all of tenant's employees and invitees shall observe and
comply with the driving and parking signs and markers on the Land surrounding
the Building, and Landlord shall not be responsible for any damage to any
vehicle towed because of noncompliance with parking regulations.
32. Without Landlord's prior approval, no tenant shall install any radio or
television antenna, loudspeaker, music system or other device on the roof or
exterior walls of the Building or on common walls with adjacent tenants.
33. Each tenant shall store all trash and garbage within its premises or in
such other areas specifically designated by Landlord. No materials shall be
placed in the trash boxes or receptacles in the Building unless such materials
may be disposed of in the ordinary and customary manner of removing and
disposing of trash and garbage and will not result in a violation of any law or
ordinance governing such disposal. All garbage and refuse disposal shall be
only through entryways and elevators provided for such purposes and at such
times as Landlord shall designate.
34. No tenant shall employ any persons other than the janitor or Landlord for
the purpose of cleaning its premises without the prior consent of Landlord. No
tenant shall cause any unnecessary labor by reason of its carelessness or
indifference in the preservation of good order and cleanliness. Janitor service
shall include ordinary dusting and cleaning by the janitor assigned to such work
and shall not include beating of carpets or rugs or moving of furniture or other
special services. Janitor service shall be furnished Mondays through Fridays,
legal holidays excepted; janitor service will not be furnished to areas which
are occupied after 9:30
11
P.M. Window cleaning shall be done only by Landlord, and only between 6:00
A.M. and 5:00 P.M.
JANITORIAL SPECIFICATION
XXX XXX XX XXXXXX XXXXX, XXXXXXXXXX, XX
GENERAL OFFICE AREAS
FREQUENCY:
DAILY - FIVE DAYS PER WEEK
1. Empty all trash receptacles and remove collected waste to dumpster.
Replace plastic liners as needed - liners to be furnished by Framingham
Corporate Center.
2. Empty and damp wipe ashtrays. Clean sand urns.
3. Dust and spot clean all horizontal surfaces of furniture, fixtures,
equipment and accessories.
4. Clean and polish all drinking fountains.
5. Spot clean by damp wiping fingerprints and smudges on walls, partitions,
doors, door frames, and light switches.
6. Vacuum clean all traffic lanes and obviously soiled carpeted surfaces.
7. Vacuum clean all carpeted floor surfaces, including edges, comers, and
under easily moved furniture.
8. Inspect carpet for spots and stains, removing where possible.
9. Dust all surfaces above normal reach including xxxxx ledges, moldings,
shelves, door frames, pictures and vents.
10. Spot clean partition and door glass.
11. Dust all chair and table legs and rungs, baseboards, ledges, moldings and
other low reach areas.
12. Clean and sanitize all telephones.
12
FREOUENCY:
WEEKLY
13. Vacuum all fabric office furniture, including chairs and couches.
FREOUENCY:
MONTHLY
14. Dust or vacuum clean all ceiling diffusers.
15. Buff VCT flooring.
13
EXHIBIT E
COMMENCEMENT DATE CONFIRMATION
DECLARATION BY LANDLORD AND TENANT AS TO DATE OF DELIVERY AND
ACCEPTANCE OF POSSESSION OF PREMISES
Attached to and made a part of the Lease dated the ___ day of _______________,
2000, entered into and by MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY as
LANDLORD, and AUTHORISZOR INC. as TENANT.
LANDLORD AND TENANT do hereby declare that possession of the Premises was
accepted by TENANT on the ___ day of _____________, 2000. The Premises required
to be constructed and finished by LANDLORD in accordance with the provisions of
the Lease have been satisfactorily completed by LANDLORD and accepted by TENANT,
the Lease is now in full force and effect, and as of the date hereof, LANDLORD
has fulfilled all of its obligations under the Lease. The Lease Commencement
Date is hereby established as _______________, 2000. The Term of this Lease
shall terminate on _________________, 2000.
LANDLORD:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: CORNERSTONE REAL ESTATE
ADVISERS, INC., its agent
By:
--------------------------------
Name Typed:
---------------------
Title:
--------------------------
Date:
--------------------------
TENANT:
AUTHORISZOR INC.
By:
--------------------------------
Name Typed:
---------------------
Title:
--------------------------
Date:
--------------------------
14
EXHIBIT F
FORM OF LETTER OF CREDIT
[LETTERHEAD OF ISSUING BANK]
April ___, 2000
Cornerstone Real Estate Advisers, Inc. Letter of Credit No._______
Xxx Xxxxxxxxx Xxxxx xxxxx 0000
Xxxxxxxx, XX 00000-0000
Attn: Regional Director
Sir or Madam:
We hereby open this Irrevocable Documentary Standby Letter of Credit
(this "Credit") in favor of Cornerstone Real Estate Advisers, Inc., agent for
Massachusetts Mutual Life Insurance Company ("Beneficiary"), for the account of
Authoriszor Inc. ("Applicant") for the aggregate total sum of One Hundred and
Eighty-three Thousand and 00/100 U.S. Dollars ($183,000) available by your sight
draft(s) drawn on _____________________________ ("Bank"), _________________,
Pennsylvania.
This Credit is subject to the following terms and conditions:
1 . Effective Date: _____[COMMENCEMENT DATE OF LEASE]_____
2. Expiry Date: ____[TERMINATION DATE OF LEASE, PLUS SIX MONTHS]_____,
unless otherwise extended so herein provided.
3. Except as stated herein, Beneficiary's ability to draw under this Credit
shall not be subject to any additional conditions or qualifications. Our
obligation under this Credit shall be our individual obligation and in no
way contingent upon reimbursement with respect thereto.
4. Sight draft(s) drawn under this Credit must bear the clause "Drawn under
_____[BANK]____ Letter of Credit No. _______ dated _____________________"
and must be signed by an authorized representative of Beneficiary.
5. This Credit must accompany any drawing hereunder for endorsement of the
drawing amount and shall be returned to Beneficiary unless it is fully
utilized.
6. The expiry of this Credit shall be extended without amendment for an
additional period of one year from the Expiry Date set forth above and
for additional one year periods from
15
each anniversary of such expiry date, unless at least thirty (30) calendar
days prior to such expiry date of any anniversary of such date, Bank
notifies Beneficiary in writing by registered or certified mail that Bank
has elected not to so renew this Credit. Each such extension shall be
measured from the then relevant expiry date even though such date may not
be a business day in ______________, Pennsylvania, for Bank. In the event
Bank elects not to renew this Credit and upon receipt of such notice,
Beneficiary may draw under this Credit in accordance with the terms hereof.
Notwithstanding the foregoing, in no event will the expiry date of this
Credit be extended beyond ____[TERMINATION DATE OF LEASE, ASSUMING
EXERCISE OF ANY EXTENSION OPTIONS, PLUS SIX MONTHS_____.
7. Partial drawings shall be permitted.
8. This Credit sets forth in full the terms of our undertaking, and such
undertaking shall not in any way be modified, amended or amplified by
reference to any document, instrument or agreement referred to herein or
in which this Credit is referred to or to which this Credit is related,
and any such reference shall not be deemed to incorporate herein by
reference any document, instrument or agreement.
9. We hereby agree with you that the sight draft(s) drawn in compliance with
this Credit shall be duly honored upon presentation to us at ____[BANK'S
ADDRESS]_____, on or before the Expiry Date or any extensions thereof as
above provided.
10. In the event of a transfer or assignment by Beneficiary of this Credit,
Beneficiary shall provide Bank with written notice designating any such
transferee or assignee. Upon receipt of such notice by Bank, Bank will
reissue a new letter of credit upon the same terms and conditions
contained herein to such transferee or assignee less the amount of any
draws previously made by Beneficiary prior to such time (the "Reissued
Credit"), and Beneficiary shall return this original Credit to Bank for
cancellation. Applicant shall pay any fees incurred in connection with
the Reissued Credit, and in no event shall the payment of such fees be a
condition to the reissue of the Reissued Credit by Bank to any transferee
or assignee.
11. This Credit shall be governed by and constructed in accordance with the
Laws of the Commonwealth of Pennsylvania and shall also, to the extent
not inconsistent with such code, by subject to the International Standby
Practices 1998, International Chamber of Commerce Publication No. 590.
Very truly yours,
[BANK]
----------------------------------
By:
-------------------------------
Name:
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16
RIDER TO OFFICE LEASE
DATED APRIL ___, 2000, BY AND BETWEEN
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
AND AUTHORISZOR INC. (THE "LEASE")
This Rider is incorporated in and made a part of the Lease. In the event
of a conflict between a provision of this Rider and the terms of another
provision of the Lease, this Rider shall govern. Each capitalized term used and
not defined in this Rider shall have the meaning ascribed such term in the
Lease.
1. RENT. In the fourth line of Article 3D, insert the clause
"(except as otherwise herein specified)" after the word "therefor".
2. TAXES AND OPERATING EXPENSES. In the first line of the second
paragraph of Article 4A, delete the clause "As soon as practicable following the
end of each Lease Year", and insert the clause "use commercially reasonable
efforts to" after the word "shall", and the clause "within ninety (90) days
following the end of each Lease Year" after the word "any" in the second line of
the second paragraph of Article 4A. Delete the clause "be permitted to" in the
sixteenth line of the second paragraph of Article 4A.
3. ALTERATIONS. In the third line of Article 5C, delete the clause
"grant or withhold in its sole discretion" and insert in its stead "not
unreasonably withhold or delay".
4. SERVICES. Insert the following sentence at the end of the first
paragraph of Article 7A:
Landlord's current charge to provide HVAC (as hereinafter defined) to the
Premises at times other than Normal Business Hours is $30 per hour for
each single zone unit in operation. Landlord may adjust such charge from
time to time.
5. INSURANCE. Insert the clause "on the comprehensive general
liability insurance policy" after the word "insureds" in the fourth line of the
second paragraph of Article 8A. Insert the sentence "Tenant's obligations
contained in this paragraph shall be subject to Article 12." at the end of the
third paragraph of Article 8A.
In Article 8C, insert the clause "gross negligence or" in the first line
after the word "Landlord's".
Insert the following at the end of Article 8:
D. LANDLORD INSURANCE. Landlord shall procure and maintain in
full force and effect All-Risk or Special Form casualty insurance
(including vandalism and malicious mischief coverage) on the Building in
an amount not less than one hundred percent (100%) of the full insurable
replacement cost thereof (excluding foundations and excavations).
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6. INDEMNIFICATION. In the third line of the first paragraph of
Article 9, insert the word "reasonable" prior to the word "attorney's".
In the fifth line of the second paragraph of Article 9, insert the clause
"required to be maintained hereunder" after the word "insurance".
7. CONDEMNATION. Insert the following sentence in the sixth line of
Article 11 prior to the word "All":
If twenty (20%) percent or more of the Premises shall be taken and the
remaining area of the Premises shall not be reasonably sufficient for
Tenant to continue operation of its business, Tenant may terminate this
Lease by notice to Landlord within sixty (60) days after the date of
taking.
8. REPAIR AND MAINTENANCE. Insert the clause "installed as a result
of Tenant's use of the Premises or otherwise by or at the request of Tenant"
after the word "Premises" in the fifth line of Article 12A.
9. INSPECTION OF PREMISES. Insert the clause "to prospective tenants
during the last six months of the Term" prior to the word "during" in the second
line of Article 13. Insert the clause "upon reasonable prior notice to Tenant
except in the case of emergency," after the word "times" in the third line of
Article 13.
10. SURRENDER OF PREMISES. Insert the following sentence at the end
of Article 14:
Notwithstanding anything contained in this Article to the contrary, all
movable partitions, other business and trade fixtures, furnishings,
furniture, machinery and equipment, communications equipment and other
personal property located in the Premises and acquired by or for the
account of Tenant, without expense to Landlord, shall be and shall remain
the property of Tenant and, except as otherwise prohibited by this Lease,
shall be removed by Tenant prior to Tenant's surrender of the Premises;
provided that Tenant shall pay the cost of repairing any damage to the
Premises or to the Building resulting from such removal.
11. SUBLETTING AND ASSIGNMENT. In the first line of the first
paragraph of Article 16, insert the clause ", which consent shall not be
unreasonably withheld, delayed or conditioned," prior to the word "list". In
the seventh line of the first paragraph of Article 16, delete the clause "at
least equal to that of Tenant" and insert in its stead "acceptable to Landlord".
Insert the following at the end of Article 16:
Notwithstanding anything contained in this Lease to the contrary,
Landlord's consent shall not be withheld for assignments of this Lease or
subletting of any part(s) of the Premises by Tenant to a business entity
which shall control, be controlled by, or be under common control or
affiliated with, Tenant ("Successor Entity"), provided such Successor
Entity has a net worth and business reputation reasonably satisfactory to
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Landlord. In addition, Landlord's consent shall not be withheld in the
event of an assignment or transfer of this Lease resulting from a
consolidation or merger of Tenant into a entity into which all or
substantially all of Tenant's stock or assets may be transferred, or the
acquisition by Tenant of all or substantially all of the stock or assets
together with the assumption of all or substantially all of the
obligations and liabilities of another business entity, provided such
entity has a net worth and business reputation reasonably satisfactory to
Landlord. Any such assignment or subletting permitted pursuant to this
paragraph is hereby conditioned upon Landlord receiving prior written
notice of such assignment or subletting, and the assignee or sublessee
and Tenant promptly executing, acknowledging and delivering to Landlord
an agreement in form and substance reasonably satisfactory to Landlord
whereby the assignee or sublessee shall agree to be bound by and upon all
the covenants, agreements, terms, provisions and conditions set forth in
this Lease on the part of Tenant to be performed. Notwithstanding
anything contained herein to the contrary, Tenant shall remain fully
liable for all of its obligations and liabilities under this Lease in the
event of an assignment or subletting permitted without Landlord consent
pursuant to this paragraph, and in no case may Tenant assign any options
to sublessee(s) or assignee(s) hereunder, all such options being deemed
personal to Tenant only. Any such assignment or subletting permitted
pursuant to this paragraph shall in no way operate as a waiver b Landlord
of, or to release or discharge Tenant from, any liability under this
Lease or be construed to relieve Tenant from obtaining Landlord's consent
to any subsequent assignment, subletting, transfer, use or occupancy.
12. SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION. In the ninth
line of Article 17 after the clause "such attornment", insert the clause
"subject to recognition by any such Lender of the validity and continuance of
this Lease and such Lender's agreement not to disturb Tenant's possession of the
Premises so long as Tenant shall not be in default of this Lease".
Insert the following at the end of Article 17:
If Tenant is required to deliver any documentation to any Lender
to confirm the matters set forth in this Article 17, then Landlord shall
use commercially reasonable efforts to obtain an agreement of
non-disturbance as to Tenant's possession of the Premises, in form
acceptable to Landlord, from any such Lender.
13. ESTOPPEL CERTIFICATE. In the second line of the first paragraph
of Article 18, insert the word "business" prior to the word "days". In the
fifth line of the first paragraph of Article 18 after the word "that", insert
the clause ", to the best of Tenant's knowledge,".
14. DEFAULTS. In the first line of the first paragraph of Article 19,
insert the following clause after the word "Rent":
(and such failure continues for more than three (3) business days after
notice from Landlord; provided, however, Landlord shall not be obligated
to provide more than two (2) such notices in any rolling twelve (12)
month period).
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15. REMEDIES OF LANDLORD. Insert the clause "in accordance with all
Laws" after the word "necessary" in the fourth line of subparagraph (2) of
Article 20.
16. SECURITY DEPOSIT. Insert the following paragraphs at the end of
Article 23:
In order to secure the faithful performance by Tenant of all of
the covenants, conditions and agreements set forth in this Lease to be
performed by it including, without limitation, such covenants, conditions
and agreements in this Lease which become applicable upon its termination
by re-entry or otherwise, Tenant may, upon the full execution of this
Lease or at any time thereafter during the Term of this Lease, deposit
with Landlord an irrevocable letter of credit (the "Letter of Credit") in
the form attached hereto and incorporated herein as EXHIBIT F (and
modifications thereto as required below), in lieu of the Security
Deposit, from such bank which may be reasonably acceptable to Landlord on
the understanding:
(1) that the Letter of Credit will have an expiration
date which is two months following the Expiration Date of the Lease and
the Letter of Credit will be in the amount of not less than $220,000.00;
(2) that upon the occurrence of a default under this
Lease which continues beyond any applicable cure period, if any, the
Letter of Credit may be drawn upon by Landlord in its full amount, and
the amount drawn may be applied to the curing of any default under this
Lease that may exist without prejudice to any other remedy or remedies
which the Landlord may have on account thereof, with any excess cash
amount held as a Security Deposit hereunder, and upon such application
Tenant shall pay to Landlord on demand the amount so applied which shall
be held together with the balance of the funds drawn on the Letter of
Credit as a Security Deposit. If a subsequent default under this Lease
should occur, the Security Deposit may be applied to the curing of such
default, without prejudice to any other remedy or remedies which the
Landlord may have on account thereof and upon such application, Tenant
shall pay to Landlord on demand the amount so applied in order to
replenish the Security Deposit to the amount held prior to the occurrence
of any default under this Lease;
(3) that should a default under this Lease occur and the
Letter of Credit be drawn upon, Tenant will only be entitled to a return
of the Security Deposit upon the fulfillment (by performance or by the
curing of any failure to perform) of all of the covenants and agreements
contained in this Lease on the part of Tenant to be performed. Tenant
further covenants that it will not assign or encumber the Letter of
Credit or the money deposited herein as a Security Deposit and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignments or attempted encumbrance.
Notwithstanding anything contained herein to the contrary, Landlord shall
return any remaining balance of the Security Deposit to Tenant, without
interest, within five (5) business days following the sixtieth (60th) day
after the expiration or earlier termination of the Term, provided there
exists no uncured default by Tenant under the Lease as of the sixtieth
(60th) day after the expiration of the Term;
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(4) that should the Premises or the property of which
they are a part be conveyed by Landlord, the Letter of Credit and the
Security Deposit or any balance thereof may be turned over or assigned to
the Landlord's grantee, and if the same be turned over as aforesaid,
Tenant hereby releases Landlord from any and all liability with respect
to the Letter of Credit or the Security Deposit and their application or
return, and Tenant agrees to look solely to such grantee for such
application or return; if Landlord fails to turn over the Letter of
Credit, the Security Deposit or any balance thereof to Landlord's
grantee, then Landlord shall remain liable to Tenant for the return
thereof. Should the bank issuing the Letter of Credit require the payment
of a fee to allow the assignments of the Letter of Credit to the party to
whom the Premises or the property of which they are a part, then Tenant
agrees to pay such fee; and
(5) that Landlord may commingle any cash held as a
Security Deposit with other funds and shall not be obligated to pay
Tenant any interest. The Security Deposit shall not be considered as
advance payment of rent or a measure of damages for any default under
this Lease by Tenant, nor shall it be a bar to defense of any actions by
Landlord against Tenant.
In the event Tenant elects to exercise its rights in accordance
with this Article to substitute the Letter of Credit for the Security
Deposit, Landlord shall return the Security Deposit to Tenant within ten
days of receipt of the Letter of Credit in form and substance acceptable
to Landlord.
17. FORCE MAJEURE. Insert the following sentence prior to word
"Tenant" in the sixth line of Article 25:
Landlord shall notify Tenant of the existence of any force majeure
preventing the performance of an obligation of Landlord within ten
business days after Landlord becomes aware of the commencement of the
force majeure.
18. ADDITIONAL RIGHTS RESERVED BY LANDLORD. In Article 28, insert the
clause "(but not within the interior of the Premises)" after the word "Building"
in subparagraphs (2) and (3).
19. DEFINED TERMS. In the tenth line of Article 29K(11), insert the
clause "and billed" after the word "amortized".
In the second line of Article 29M(2), insert the clause "(except
penalties assessed as a result of Landlord's failure to make timely payments,
which failure is not caused by Tenant)" after the word "penalty".
20. MISCELLANEOUS PROVISIONS. Insert the following sentence at the
end of Article 30A:
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Although Landlord shall not be responsible for the violation by anyone of
any of the rules and regulations, Landlord shall use reasonable efforts
to enforce the rules and regulations in a non-discriminatory manner.
Insert the clause "or at such other address as any of the parties hereto
may hereafter specify in writing" at the end of Article 30C.
Delete the first two sentences of Article 30L, and insert the following
in their stead:
Failure of either party hereto to insist upon strict compliance of the
other party of any condition or provision of this Lease shall not be
deemed a waiver of that condition by the party failing to insist upon
strict compliance of that condition. No waiver shall be effective
against either party unless in writing and signed by the party waiving
the condition.
Insert the following paragraph at the end of Article 30:
R. SIGNAGE. Tenant shall be entitled to its proportionate
share of lineage on tenant directories in the Building and, subject to
Landlord approval, to appropriate signage at the entrance to the
Premises. Any additional signage consented to by Landlord shall be
installed by Tenant at Tenant's sole cost and expense and shall be
removed prior to the expiration or earlier termination of this Lease, and
Tenant shall repair and restore any damage to the Premises or Building
resulting from Tenant's installation or removal of such signage.
21. EXHIBIT B - LANDLORD'S WORK LETTER. In the caption to the Work
Letter delete "01863", and insert in its stead "01803".
22. EXHIBIT F - FORM OF LETTER OF CREDIT. In paragraph 2 of the Form
of Letter of Credit, delete "six months" and insert in its stead "two months".
Insert the following at the end of paragraph 4 of the Form of Letter of
Credit:
Sight draft(s) drawn under this Credit must also contain a certification
by an authorized representative of Beneficiary that a tenant default has
occurred under that certain Office Lease dated as of ____________, 2000
by and between Beneficiary and Applicant.
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