Exhibit 10.6.3
Agreement of Lease
Between
Southborough/Westborough LLC, a Delaware limited liability company
AND
Cognistar Interactive Corporation, a Delaware corporation
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX
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TABLE OF CONTENTS
ARTICLE 1 BASIC LEASE PROVISIONS...........................................1
1.1 INTRODUCTION.........................................................1
1.2 BASIC DATA...........................................................1
1.3 ADDITIONAL DEFINITIONS...............................................2
ARTICLE 2 PREMISES AND APPURTENANT RIGHTS..................................3
2.1 LEASE OF PREMISES....................................................3
2.2 APPURTENANT RIGHTS AND RESERVATIONS..................................3
ARTICLE 3 BASIC RENT.......................................................4
3.1 PAYMENT..............................................................4
ARTICLE 4 COMMENCEMENT AND CONDITION.......................................5
4.1 COMMENCEMENT DATE....................................................5
4.2 PREPARATION OF THE PREMISES..........................................5
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE.............................6
4.4 TENANT'S DELAYS......................................................6
ARTICLE 5 USE OF PREMISES..................................................7
5.1 PERMITTED USE........................................................7
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT..............................8
ARTICLE 6 ASSIGNMENT AND SUBLETTING........................................9
6.1 PROHIBITION..........................................................9
ARTICLE 7 RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD........................................11
7.1 LANDLORD REPAIRS....................................................11
7.2 TENANT'S AGREEMENT..................................................11
7.3 FLOOR LOAD - HEAVY MACHINERY........................................12
7.4 BUILDING SERVICES...................................................12
7.5 ELECTRICITY.........................................................13
ARTICLE 8 REAL ESTATE TAXES...............................................15
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES............................15
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8.2 ABATEMENT...........................................................15
8.3 ALTERNATE TAXES.....................................................15
ARTICLE 9 OPERATING AND UTILITY EXPENSES..................................16
9.1 DEFINITIONS.........................................................16
9.2 TENANT'S PAYMENTS...................................................16
ARTICLE 10 INDEMNITY AND PUBLIC LIABILITY INSURANCE........................17
10.1 TENANT'S INDEMNITY..................................................17
10.2 PUBLIC LIABILITY INSURANCE..........................................17
10.3 TENANT'S RISK.......................................................18
10.4 INJURY CAUSED BY THIRD PARTIES......................................18
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ARTICLE 11 LANDLORD'S ACCESS TO PREMISES...................................18
11.1 LANDLORD'S RIGHTS...................................................18
ARTICLE 12 FIRE, EMINENT DOMAIN, ETC.......................................18
12.1 ABATEMENT OF RENT...................................................18
12.2 LANDLORD'S RIGHT OF TERMINATION.....................................18
12.3 RESTORATION.........................................................19
12.4 AWARD...............................................................19
ARTICLE 13 DEFAULT.........................................................19
13.1 TENANT'S DEFAULT....................................................19
13.2 LANDLORD'S DEFAULT..................................................24
ARTICLE 14 MISCELLANEOUS PROVISIONS........................................24
14.1 EXTRA HAZARDOUS USE.................................................24
14.2 WAIVER..............................................................24
14.3 COVENANT OF QUIET ENJOYMENT.........................................25
14.4 LANDLORD'S LIABILITY................................................25
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR................................25
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE...........................26
14.7 RULES AND REGULATIONS...............................................26
14.8 ADDITIONAL CHARGES..................................................26
14.9 INVALIDITY OF PARTICULAR PROVISIONS.................................26
14.10 PROVISIONS BINDING, ETC.............................................26
14.12 NOTICES.............................................................27
14.13 WHEN LEASE BECOMES BINDING; TENANT'S REPRESENTATION.................27
14.14 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS...................27
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR................................28
14.16 STATUS REPORT AND FINANCIAL STATEMENTS..............................28
14.17 SECURITY DEPOSIT....................................................28
14.18 REMEDYING DEFAULTS..................................................29
14.19 HOLDING OVER........................................................29
14.20 WAIVER OF SUBROGATION...............................................29
14.21 SURRENDER OF PREMISES...............................................29
14.22 SUBSTITUTE SPACE; DEMOLITION........................................30
14.23 BROKERAGE...........................................................30
14.24 GOVERNING LAW.......................................................30
14.25 ANTI-TERRORISM REPRESENTATIONS......................................30
EXHIBIT A PREMISES
EXHIBIT B RULES AND REGULATIONS OF BUILDING
EXHIBIT C ITEMS INCLUDED IN OPERATING EXPENSES
EXHIBIT D CONTRACTOR'S INSURANCE REQUIREMENTS
EXHIBIT E COMMENCEMENT LETTER
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L E A S E
THIS INSTRUMENT IS A LEASE, dated as of November 1, 2005 in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
space in the building (the "Building") located at 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx. The parties to this instrument hereby agree with
each other as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. The following set forth basic data and, where appropriate,
constitute definitions of the terms hereinafter listed.
1.2 BASIC DATA.
Landlord: Southborough/Westborough LLC, a Delaware limited liability
company.
Landlord's Original Address: c/o The Advance Group, 0000 Xxxxx Xxxxxxx
000, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000.
Tenant: Cognistar Interactive Corporation, a Delaware corporation.
Tenant's Original Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx,
XX 00000.
Guarantor: None.
Basic Rent: The sum of (A): (i) for the period commencing on the
Commencement Date and expiring on the day immediately preceding the first (1st)
anniversary of the Commencement Date, $33,448.00 ($18.50 per square foot of
Premises Rentable Area) per annum; (ii) for the period commencing on the first
(1st) anniversary of the Commencement Date and expiring on the day immediately
preceding the second (2nd) anniversary of the Commencement Date, $35,256.00
($19.50 per square foot of Premises Rentable Area) per annum; and (iii) for the
period commencing on the second (2nd) anniversary of the Commencement Date and
expiring on the on the expiration of the Initial Term of the Lease $37,064.00
($20.50 per square foot of Premises Rentable Area) per annum (the "Base Rent"),
and (B) $2,260.00 ($1.25 per square foot of Premises Rentable Area) per annum as
an allowance (the "Tenant Electricity Payment") toward the actual cost to be
paid by Landlord for electricity for lights and plugs used by Tenant in the
Premises ("Tenant Electric"), as all of the same may be adjusted and/or abated
pursuant to Sections 7.5 and 12.1.
Notwithstanding anything to the contrary herein or in the Lease contained,
other than the Tenant Electricity Payment, Tenant shall have no obligation to
pay Base Rent or Escalation Charges in respect of the first (1st) three (3) full
calendar months of the Initial Term.
Premises Rentable Area: Agreed to be 1,808 square feet located on the
second (2nd) floor of the Building.
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Permitted Uses: Executive or professional offices of the type generally
found in first-class office buildings in the suburban Boston area, subject to
the provisions of Section 5.1(a).
Escalation Factor: 0.027, as computed in accordance with the Escalation
Factor Computation.
Initial Term: Three (3) years and three (3) months commencing on the
Commencement Date and expiring at the close of the day on the last day of the
third (3rd) month following the third (3rd) anniversary of the Commencement
Date, except that if the Commencement Date shall be other than the first day of
a calendar month, the expiration of the Initial Term shall be at the close of
the day on the last day of the calendar month on which such anniversary shall
fall.
Security Deposit: $6,177.00
Base Operating Expenses: The actual Operating Expenses with respect to
the calendar year ending December 31, 2006.
Base Taxes: The actual Taxes assessed with respect to the calendar year
ending December 31, 2006.
Brokers: Xxxxxxx Xxxxx Xxxxx & Partners, LLC and The Staubach Company
1.3 ADDITIONAL DEFINITIONS.
Agent: Advance Realty Management, or such other person or entity from
time to time designated by Landlord.
Building Rentable Area: Agreed to be 71,658 square feet.
Business Days: All days except Saturday, Sunday, New Year's Day, Xxxxxx
Xxxxxx Xxxx Day, President's Day, Patriots Day, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day (and the
following day when any such day occurs on Sunday) and such other days that
tenants occupying at least 50% of Building Rentable Area now or in the future
recognize as holidays for their general office staff.
Commencement Date: As defined in Section 4.1.
Default of Tenant: As defined in Section 13.1.
Escalation Charges: The amounts prescribed in Sections 8.1 and 9.2.
Escalation Factor Computation: Premises Rentable Area divided by 93% of
Building Rentable Area.
Force Majeure: Collectively and individually, strike or other labor
trouble, fire or other casualty, governmental preemption of priorities or other
controls in connection with a national or other public emergency or shortages of
fuel, supplies or labor resulting therefrom, or any other cause, whether similar
or dissimilar, beyond Landlord's reasonable control.
Initial Public Liability Insurance: $4,000,000 combined single limit for
property damage, bodily injury or death.
Operating Expenses: As determined in accordance with Section 9.1.
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Operating Year: As defined in Section 9.1.
Park: The properties owned by Landlord at 110, 112 and 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx.
Premises: A portion of the Building as shown on Exhibit A annexed
hereto.
Property: The Building and the land parcels on which it is located
(including adjacent sidewalks and other portions of the Park).
Tax Year: As defined in Section 8.1.
Taxes: As determined in accordance with Section 8.1.
Tenant's Removable Property: As defined in Section 5.2.
Term of this Lease: The Initial Term and any extension thereof in
accordance with the provisions hereof.
ARTICLE 2
PREMISES AND APPURTENANT RIGHTS
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for the
Term of this Lease and upon the terms and conditions hereinafter set
forth, and Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
appurtenant to the Premises, the non-exclusive right to use, and permit
its invitees to use in common with others, public or common lobbies,
hallways, stairways, elevators and common walkways necessary for access
to the Building, and if the portion of the Premises on any floor
includes less than the entire floor, the common toilets, corridors and
elevator lobby of such floor; but such rights shall always be subject to
reasonable rules and regulations from time to time established by
Landlord pursuant to Section 14.7 and to the right of Landlord to
designate and change from time to time areas and facilities so to be
used, provided that Tenant's use of and access to the Premises and
Parking Areas shall not be materially adversely affected.
(b) Excepted and excluded from the Premises are the ceiling, floor,
perimeter walls and exterior windows (except the inner surface of each
thereof), and any space in the Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, but the entry doors (and related glass and finish
work) to the Premises are a part thereof. Landlord shall have the right
to place in the Premises (but in such manner as to reduce to a minimum
interference with Tenant's use of the Premises) interior storm windows,
sun control devices, utility lines, equipment, stacks, pipes, conduits,
ducts and the like. In the event that Tenant shall install any hung
ceilings or walls in the Premises, Tenant shall install and maintain, as
Landlord may require, proper access panels therein to afford access to
any facilities above the ceiling or within or behind the walls.
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(c) During the Term of this Lease, Tenant shall have the right to use,
on a non-exclusive first-come, first-served basis, the parking areas
located on the Property designated from time to time by Landlord for the
use of tenants of the Building (the "Parking Area") for the unreserved
parking of passenger automobiles. The Parking Area currently contains
approximately 3.96 spaces (inclusive of any handicap spaces required by
law) per 1,000 square feet of rentable area in the Park ("Parking
Ratio") and in no event shall Tenant have the right to use more than the
Parking Ratio (based on the Premises Rentable Area).
Tenant shall park and shall cause its employees to park only in the
Parking Area (and not in other parking areas of the Park). In order to
restrict the use by Tenant's employees of areas designated or which may
be designated by Landlord as handicapped, reserved or restricted parking
areas, or for any other business purpose, Tenant agrees that it will, at
any time and from time to time as requested by Landlord, furnish
Landlord with the owners' names and the license plate numbers of any
vehicle of Tenant and Tenant's employees.
Landlord reserves the right to institute a parking control system, and
to establish and modify or amend rules and regulations governing the use
thereof. Landlord shall have the right to revoke a user's parking
privileges in the event such user fails to abide by the rules and
regulations governing the use of the Parking Area. Tenant shall be
prohibited from using the Parking Area for purposes other than for
parking registered vehicles. The storage, repair or overnight parking of
vehicles in the Parking Area is strictly prohibited.
Tenant and its employees shall observe reasonable safety precautions in
the use of the Parking Area and shall at all times abide by all rules
and regulations governing the use of the Parking Area promulgated by
Landlord or the Parking Area operator (if any) and delivered to Tenant
in writing prior to the enforcement thereof. Landlord reserves the right
to temporarily close the Parking Area during periods of unusually
inclement weather, for repairs, or to prevent a dedication thereof, and
Tenant shall not be entitled to any abatement of Basic Rent or other
damages as a result thereof. Landlord does not assume any
responsibility, and shall not be held liable, for any damage or loss to
any automobile or personal property in or about the Parking Area, or for
any injury sustained by any person in or about the Parking Area.
ARTICLE 3
BASIC RENT
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
Landlord, commencing on the Commencement Date without offset, abatement
(except as provided in Section 12.2), deduction or demand, the Basic
Rent. Such Basic Rent shall be payable in equal monthly installments, in
advance, on the first day of each and every calendar month during the
Term of this Lease, to Southborough/Westborough LLC, c/o Advance Realty
Management, Inc., X.X. Xxx 000000, Xxxxxx, XX 00000-0000, or at such
other place as Landlord shall from time to time designate by notice, in
lawful money of the United States. In the event that any installment of
Basic Rent is not paid when due, Tenant shall pay, in an addition to any
charges under Section 14.18, at Landlord's request an administrative fee
equal to 5% of the overdue payment. Landlord and Tenant agree that all
amounts due from Tenant under or in respect of this Lease, whether
labeled Basic Rent, Escalation Charges, additional charges or otherwise,
shall be considered as rental reserved under this Lease for all
purposes,
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including without limitation regulations promulgated pursuant to the
Bankruptcy Code, and including further without limitation Section 502(b)
thereof.
(b) Basic Rent for any partial month shall be pro-rated on a daily
basis, and if the first day on which Tenant must pay Basic Rent shall be
other than the first day of a calendar month, the first payment which
Tenant shall make to Landlord shall be equal to a proportionate part of
the monthly installment of Basic Rent for the partial month from the
first day on which Tenant must pay Basic Rent to the last day of the
month in which such day occurs, plus the installment of Basic Rent for
the succeeding calendar month.
ARTICLE 4
COMMENCEMENT AND CONDITION
4.1 4.1 COMMENCEMENT DATE. The Commencement Date shall be the last to occur
of:
(a) The day following the Substantial Completion Date, as defined in
Section 4.2(d); or
(b) November 1, 2005 ("Target Commencement Date").
Notwithstanding the foregoing, if (i) Tenant's personnel shall occupy
all or any part of the Premises for the conduct of its business prior to
the Commencement Date as determined pursuant to the preceding sentence,
such date of occupancy shall, for all purposes of this Lease, be the
Commencement Date, and (ii) if Landlord is unable to deliver possession
of the Premises on or before the date so specified, then the
Commencement Date shall be the first day thereafter that possession is
delivered. Promptly upon the occurrence of the Commencement Date,
Landlord and Tenant shall enter into a letter agreement substantially in
the form annexed hereto as Exhibit E but the failure by either party to
execute such a letter shall have no effect on the Commencement Date, as
hereinabove determined.
4.2 PREPARATION OF THE PREMISES. (a) Landlord has agreed to perform certain
work in the Premises to prepare the same for Tenant's occupancy.
Promptly upon the full execution of the Lease, Landlord will have
architectural and engineering plans and specifications (the "Plans") for
the Premises, which Plans shall be submitted to Tenant for its approval,
which shall not be unreasonably withheld or delayed. The Plans shall
reflect substantially the (i) configuration of the Premises shown on
Exhibit A, and (ii) the specifications detailed in Exhibit F on Schedule
I. Notwithstanding the foregoing, if Tenant requests that Landlord
incorporate revisions to the Plans which are not specified in Schedule I
hereto, such revisions shall be subject to the terms and conditions
provided for in Exhibit F. If Landlord approves such request, Tenant
shall pay for all costs associated therewith as provided for in Section
E of Exhibit F. Failure by Tenant to disapprove any submission of the
Plans in writing within (i) three (3) business days after the initial
submission and (ii) one (1) business day after any subsequent submission
shall constitute approval thereof. Any disapproval shall be accompanied
by a reasonably specific statement of reasons therefor.
(b) Promptly after approval of the Plans, the Landlord shall, at
Landlord's cost and expense, subject to clause (a) above, perform the
work ("Landlord's Work") as listed on Exhibit F attached hereto using
Building standard methods and materials. Landlord shall exercise all
reasonable efforts to complete "Landlord's Work" specified therein
necessary to prepare the Premises for Tenant's occupancy by the Target
Commencement Date, but Tenant shall have no claim against Landlord for
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failure so to complete Landlord's Work.
(c) At such time as Landlord's contractor determines that Tenant's
access will not unreasonably interfere with Landlord's Work, Landlord
shall allow Tenant access to the Premises for the sole purposes of
installation of its wiring, cabling, furniture, fixtures and equipment.
Tenant shall cause its contractors to cooperate with Landlord's
contractors to effect the prompt and efficient completion of work being
done by each.
(d) The Premises shall be deemed ready for occupancy on the first day
(the "Substantial Completion Date") as of which Landlord's Work has been
completed except for items of work (and, if applicable, adjustment of
equipment and fixtures) which can be completed after occupancy has been
taken without causing undue interference with Tenant's use of the
Premises (i.e. so-called "punch list" items), a temporary or permanent
certificate of occupancy has been issued by the appropriate governmental
authority if the nature of Landlord's Work requires the issuance
thereof, and Tenant has been given notice thereof. Landlord shall
complete as soon as conditions permit all "punch list" items and Tenant
shall afford Landlord access to the Premises for such purposes.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Except to the extent to which
Tenant shall have given Landlord notice, not later than the end of the
second full calendar month of the Term of this Lease next beginning
after the Substantial Completion Date, of respects in which Landlord has
not performed Landlord's Work, Tenant shall have no claim that Landlord
has failed to perform any of Landlord's Work. Notwithstanding anything
contained in this Section 4.3 to the contrary, the foregoing notice
period shall be extended by one (1) year from the Substantial Completion
Date with respect to defects relating to Landlord's Work that could not
reasonably have been discovered by a careful visual inspection or by
normal use and occupancy, after which time Tenant shall have no further
claim against Landlord for failure to perform Landlord's Work. Except
for Landlord's Work, the Premises are being leased in their condition AS
IS WITHOUT REPRESENTATION OR WARRANTY by Landlord. Tenant acknowledges
that it has inspected the Premises and common areas of the Building and,
except for Landlord's Work, have found the same satisfactory.
4.4 TENANT'S DELAYS. (a) If a delay shall occur in the Substantial
Completion Date as the result of:
(i) any request by Tenant that Landlord delay in the
commencement or completion of Landlord's Work for any reason;
(ii) any change by Tenant to Exhibit F;
(iii) any other act or omission of Tenant or its officers,
agents, servants or contractors;
(iv) any special requirement of Exhibit F not in accordance with
Landlord's building standards of which Landlord has given Tenant notice
at the time of Landlord's approval thereof; or
(v) any reasonably necessary displacement of any of Landlord's Work from
its place in Landlord's construction schedule resulting from any of the
causes for delay referred to in clauses (i), (ii), (iii) or (iv) of this
paragraph and the fitting of Landlord's Work back into such schedule;
then Tenant shall, from time to time and within ten (10) days after
demand therefor, pay to Landlord for each day of such delay the amount
of Basic Rent, Escalation Charges and other charges that would have been
payable hereunder had the Tenant's obligation to pay Basic Rent (without
regard to any period of free rent) commenced immediately prior to such
delay.
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(b) If a delay in the Substantial Completion Date, or if any substantial
portion of such delay, is the result of Force Majeure, and such delay
would not have occurred but for a delay described in paragraph (a), such
delay shall be deemed added to the delay described in that paragraph.
(c) The delays referred to in paragraphs (a) and (b) are herein referred
to collectively and individually as "Tenant's Delay."
(d) If, as a result of Tenant's Delay(s), the Substantial Completion
Date is delayed in the aggregate for more than sixty (60) days, Landlord
may (but shall not be required to) at any time thereafter terminate this
Lease by giving written notice of such termination to Tenant and
thereupon this Lease shall terminate without further liability or
obligation on the part of either party, except that Tenant shall pay to
Landlord the cost theretofore incurred by Landlord in performing
Landlord's Work, including any restoration of the Premises, plus an
amount equal to Landlord's out-of-pocket expenses reasonably incurred in
connection with this Lease, including, without limitation, brokerage and
legal fees, together with any amount required to be paid pursuant to
paragraph (a) through the effective termination date.
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
occupied by Tenant only for Permitted Uses specifically excluding,
without limitation, use for medical, dental, governmental, utility
company or employment agency offices.
(b) Tenant agrees to conform to the following provisions during the Term
of this Lease:
(i) Tenant shall cause all freight to be delivered to or removed
from the Building and the Premises in accordance with reasonable
rules and regulations established by Landlord therefor;
(ii) Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of doors and
interior surfaces of windows) or on any part of the Building
outside the Premises, any signs, symbol, advertisement or the
like visible to public view outside of the Premises. Landlord
will not withhold consent for signs or lettering on the entry
doors to the Premises provided such signs conform to building
standards adopted by Landlord in its sole discretion and Tenant
has submitted to Landlord a plan or sketch in reasonable detail
(showing, without limitation, size, color, location, materials
and method of affixation) of the sign to be placed on such entry
doors. Landlord agrees, however, to maintain a tenant directory
in the lobby of the Building (and, in the case of multi-tenant
floors, in that floor's elevator lobby) in which will be placed
Tenant's name and the location of the Premises in the Building;
(iii) Tenant shall not perform any act or carry on any practice
which may injure the Premises, or any other part of the
Building, or cause any offensive odors or loud noise or
constitute a nuisance or a menace to any other tenant or tenants
or other persons in the Building;
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(iv) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and
regulations, including without limitation the Americans With
Disabilities Act of 1990; and
(v) Tenant shall continuously throughout the Term of this Lease
occupy the Premises for Permitted Uses.
(c) Tenant shall not, at any time, bring any so called "Hazardous
Material" to the Premises or the Property, and shall never use the
Premises in such a way as could generate "Hazardous Material," in either
case except in strict accordance with all "Environmental Laws" and
requirements of federal, state or local government with respect to
"Hazardous Material" and other environmental matters at its sole cost
and expense. Tenant hereby indemnifies and agrees to defend and hold the
Landlord harmless from and against any and all liens, damages, losses,
liabilities, obligations, penalties, claims, litigation, demands,
judgments, suits, proceedings, costs, disbursements or expenses of any
kind or nature whatsoever (including, without limitation, attorneys' and
experts' fees and expenses) which may at any time be imposed upon,
incurred by or asserted or awarded against the Landlord, the Premises,
the Building or the Property arising from or out of (i) the release by
Tenant of any Hazardous Materials at any time during the Term of this
Lease on, in, under or affecting all or any portion of the Property,
(ii) the violation or alleged violation by Tenant during the term of
this Lease of any Environmental Law with respect to the Property or any
portion thereof, and (iii) any attempts by the Landlord to enforce the
foregoing rights. The foregoing indemnification shall include, without
limitation (x) the cost of removal of any and all Hazardous Materials
released by Tenant from all or any portion of the Property or any
surrounding areas, (y) additional costs required as a result of such
release or violation by Tenant to take necessary precautions to protect
against the discharge, spillage, emission, leakage, seepage or release
of Hazardous Materials on, in, under or affecting the Premises or the
Property or into the air, water or soil, and (z) costs incurred as a
result of such release or violation by Tenant to comply with
Environmental Laws in connection with all or any portion of the Premises
or any surrounding areas. In determining whether the Tenant is liable
under this paragraph (c), the term "Tenant" shall include Tenant and its
agents, employees and independent contractors. For purposes hereof,
"Hazardous Material" or "Hazardous Materials" means and includes
petroleum products, flammable explosives, radioactive materials,
asbestos or any material containing asbestos, polychlorinated biphenyls,
and/or any hazardous, toxic or dangerous waste, substance or material
now or hereafter defined as such, or as a hazardous substance, or any
similar term, by or in the Environmental Laws. For purposes of this
Lease, "Environmental Law" or "Environmental Laws" shall mean: (x) any
"Superfund" or "Super Lien" law, or any other federal, state or local
statute, law ordinance, code, rule, regulation, order or decree,
regulating, relating to or imposing liability or standards of conduct
concerning, any Hazardous Materials as may now or at any time hereafter
be in effect, including without limitation, the following as the same
may be amended or replaced from time to time, and all regulations
promulgated thereunder or in connection therewith: the Super Fund
Amendments and Reauthorization Act of 1986, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Clean Air Act, the Clean Water Act, the Toxic Substances Control Act,
the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act, the Hazardous Waste Management System, and the
Occupational Safety and Health Act of 1970; and (y) any law, ordinance
or regulation the primary purpose of which is to protect the quality of
the environment.
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions (including, for the purposes hereof, wall-to-wall
carpeting), or improvements in or to the
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Premises (including any improvements other than Landlord's Work
necessary for Tenant's initial occupancy of the Premises) without
Landlord's prior written consent. Any such alterations, additions or
improvements shall be in accordance with complete plans and
specifications meeting the requirements set forth in the rules and
regulations from time to time in effect and approved in advance by
Landlord. Such work shall (i) be performed in a good and workmanlike
manner and in compliance with all applicable laws, (ii) be made at
Tenant's sole cost and expense and at such times and in such a manner as
Landlord may from time to time designate, (iii) be made only in
accordance with the rules and regulations from time to time in effect
with respect thereto, and (iv) become part of the Premises and the
property of Landlord. If any alterations or improvements shall involve
the removal of fixtures, equipment or other property in the Premises
which are not Tenant's Removable Property, such fixtures, equipment or
property shall be promptly replaced by Tenant at its expense with new
fixtures, equipment or property of like utility and of at least equal
quality.
(b) All articles of personal property and all business fixtures,
machinery and equipment and furniture owned or installed by Tenant
solely at its expense in the Premises ("Tenant's Removable Property")
shall remain the property of Tenant and may be removed by Tenant at any
time prior to the expiration of this Lease, provided that Tenant, at its
expense, shall repair any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit,
and that no mechanic's or other lien for any such labor or materials
shall attach to or affect the reversion or other estate or interest of
Landlord in and to the Premises. To the maximum extent permitted by law,
before such time as any contractor commences to perform work on behalf
of Tenant, such contractor (and any subcontractors) shall furnish a
written statement acknowledging the provisions set forth in the prior
clause. Whenever and as often as any mechanic's lien shall have been
filed against the Property based upon any act or interest of Tenant or
of anyone claiming through Tenant, Tenant shall forthwith take such
action by bonding, deposit or payment as will remove or satisfy the
lien.
(d) In the course of any work being performed by Tenant (including
without limitation the "field installation" of any Tenant's Removable
Property), Tenant agrees to use labor compatible with that being
employed by Landlord for work in or to the Building or other buildings
owned by Landlord or its affiliates (which term, for purposes hereof,
shall include, without limitation, entities which control or are under
common control with Landlord, or which are controlled by Landlord or, if
Landlord is a partnership, by any partner of Landlord) and not to employ
or permit the use of any labor or otherwise take any action which might
result in a labor dispute involving personnel providing services in the
Building pursuant to arrangements made by Landlord.
ARTICLE 6
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise neither this Lease nor
the term and estate hereby granted, nor any interest herein or therein,
will be assigned, mortgaged, pledged, encumbered or otherwise
transferred and that neither the Premises nor any part thereof will be
encumbered in any manner by reason of any act or omission on the part of
Tenant, or used or occupied or permitted to be used or occupied, by
anyone other than Tenant, or for any use or purpose other than a
Permitted Use, or be sublet (which term, without limitation, shall
include granting of concessions, licenses and the like) in whole or in
part, or be offered or advertised for
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assignment or subletting. Without limiting the foregoing, any agreement
pursuant to which: (x) Tenant is relieved from the obligation to pay, or
a third party agrees to pay on Tenant's behalf, all or any portion of
Basic Rent, Escalation Charges or other charges due under this Lease;
and/or (y) a third party undertakes or is granted the right to assign or
attempt to assign this Lease or sublet or attempt to sublet all or any
portion of the Premises, shall for all purposes hereof be deemed to be
an assignment of this Lease and subject to the provisions of this
Article 6. The provisions of this paragraph (a) shall apply to a
transfer (by one or more transfers) of a majority of the stock or
partnership interests or other evidences of ownership of Tenant as if
such transfer were an assignment of this Lease. Notwithstanding anything
to the contrary herein contained, provided that Tenant notifies Landlord
prior to advertising or offering all or any portion of the Premises for
assignment or subletting, Landlord agrees that it will not unreasonably
withhold its consent to any such assignment or subletting. No such
assignment or subletting shall relieve Tenant of its primary obligation
as party-Tenant hereunder, nor shall it reduce or increase Landlord's
obligations under the Lease.
(b) The provisions of paragraph (a) shall not apply to either:
transactions with an entity into or with which Tenant is merged or
consolidated, or to which substantially all of Tenant's assets are
transferred; or transactions with any entity which controls or is
controlled by Tenant or is under common control with Tenant; provided
that in either such event:
(i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles
consistently applied at least equal to the greater of (1) the
net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of Tenant herein
named on the date of this Lease,
(ii) proof satisfactory to Landlord of such net worth shall have
been delivered to Landlord at least 10 days prior to the
effective date of any such transaction, and
(iii) the assignee agrees directly with Landlord, by written
instrument in form satisfactory to Landlord, to be bound by all
the obligations of Tenant hereunder including, without
limitation, the covenant against further assignment and
subletting.
(c) If, in violation of this Article 6, this Lease be assigned, or if
the Premises or any part thereof be sublet or occupied by anyone other
than Tenant, Landlord may, at any time and from time to time, collect
rent and other charges from the assignee, subtenant or occupant, and
apply the net amount collected to the rent and other charges herein
reserved, but no such assignment, subletting, occupancy, collection or
modification of any provisions of this Lease shall be deemed a waiver of
this covenant, or the acceptance of the assignee, subtenant or occupant
as a tenant or a release of Tenant from the further performance of
covenants on the part of Tenant to be performed hereunder. Any consent
by Landlord to a particular subletting or occupancy shall not in any way
diminish the prohibition stated in paragraph (a) of this Section 6.1 or
the continuing liability of the original named Tenant. No assignment or
subletting hereunder shall relieve Tenant from its obligations hereunder
and Tenant shall remain fully and primarily liable therefor. No such
assignment, subletting, or occupancy shall affect or be contrary to
Permitted Uses. Any consent by Landlord to a particular assignment,
subletting or occupancy shall be revocable, and any assignment,
subletting or occupancy shall be void AB INITIO, if the same shall fail
to require that such assignee, subtenant or occupant agree therein to be
independently bound by and upon all of the covenants, agreements, terms,
provisions and conditions set forth in this Lease on the part of Tenant
to be kept and performed.
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ARTICLE 7
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
Landlord agrees to keep in good order, condition and repair the roof,
public areas, exterior walls (including exterior glass) and structure of
the Building (including all plumbing, mechanical and electrical systems
installed by Landlord, but specifically excluding any supplemental
heating, ventilation or air conditioning equipment or systems installed
at Tenant's request or as a result of Tenant's requirements in excess of
building standard design criteria), all insofar as they affect the
Premises, except that Landlord shall in no event be responsible to
Tenant for the repair of glass in the Premises, the doors (or related
glass and finish work) leading to the Premises, or any condition in the
Premises or the Building caused by any act or neglect of Tenant, its
invitees or contractors. Landlord shall not be responsible to make any
improvements or repairs to the Building other than as expressly in this
Section 7.1 provided, unless expressly provided otherwise in this Lease.
(b) Landlord shall never be liable for any failure to make repairs which
Landlord has undertaken to make under the provisions of this Section 7.1
or elsewhere in this Lease, unless Tenant has given notice to Landlord
of the need to make such repairs, and Landlord has failed to commence to
make such repairs within a reasonable time after receipt of such notice,
or fails to proceed with reasonable diligence to complete such repairs.
7.2 TENANT'S AGREEMENT. (a) Tenant will keep neat and clean and maintain in
good order, condition and repair the Premises and every part thereof,
excepting only those repairs for which Landlord is responsible under the
terms of this Lease, reasonable wear and tear of the Premises, and
damage by fire or other casualty or as a consequence of the exercise of
the power of eminent domain; and shall surrender the Premises, at the
end of the Term, in such condition. Without limitation, Tenant shall
continually during the Term of this Lease maintain the Premises in
accordance with all laws, codes and ordinances from time to time in
effect and all directions, rules and regulations of the proper officers
of governmental agencies having jurisdiction, and the standards
recommended by the Boston Board of Fire Underwriters, and shall, at
Tenant's expense, obtain all permits, licenses and the like required by
applicable law. To the extent that the Premises constitute a "Place of
Public Accommodation" within the meaning of the Americans With
Disabilities Act of 1990, Tenant shall be responsible, subject to the
requirements of Section 5.2, for making the Premises comply with such
Act. Notwithstanding the foregoing or the provisions of Article 12, to
the maximum extent this provision may be enforceable according to law,
Tenant shall be responsible for the cost of repairs which may be made
necessary by reason of damage to the Building caused by any act or
neglect of Tenant, or its contractors or invitees (including any damage
by fire or other casualty arising therefrom) and, if the premium or
rates payable with respect to any policy or policies of insurance
purchased by Landlord or Agent with respect to the Property increases as
a result of payment by the insurer of any claim arising from the any act
or neglect of Tenant, or its contractors or invitees, Tenant shall pay
such increase, from time to time, within fifteen (15) days after demand
therefor by Landlord, as an additional charge.
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the
same with reasonable dispatch, after such demand (except in the case of
an emergency, in
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which event Landlord may make such repairs immediately), Landlord may
(but shall not be required to do so) make or cause such repairs to be
made (the provisions of Section 14.18 being applicable to the costs
thereof), and shall not be responsible to Tenant for any loss or damage
whatsoever that may accrue to Tenant's stock or business by reason
thereof.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon any
floor in the Premises exceeding the floor load per square foot of area
which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all
business machines and mechanical equipment, including safes, which shall
be placed so as to distribute the weight. Business machines and
mechanical equipment shall be placed and maintained by Tenant at
Tenant's expense in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance. Tenant shall not move
any safe, heavy machinery, heavy equipment, freight, bulky matter or
fixtures into or out of the Building without Landlord's prior consent,
which consent may include a requirement to provide insurance, naming
Landlord as an insured, in such amounts as Landlord may deem reasonable.
(b) If any such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons
holding a Master Rigger's License to do such work, and that all work in
connection therewith shall comply with applicable laws and regulations.
Any such moving shall be at the sole risk and hazard of Tenant, and
Tenant will exonerate, indemnify and save Landlord harmless against and
from any liability, loss, injury, claim or suit resulting directly or
indirectly from such moving.
7.4 BUILDING SERVICES. (a) Landlord shall, on Business Days from 8:00 a.m.
to 6:00 p.m. and on Saturdays from 8:00 a.m. to 1:00 p.m., furnish
heating and cooling as normal seasonal changes may require to provide
reasonably comfortable space temperature and ventilation for occupants
of the Premises under normal business operation at an occupancy of not
more than one person per 150 square feet of Premises Rentable Area and
an electrical load not exceeding 3.0 xxxxx per square foot of Premises
Rentable Area. If Tenant shall require air conditioning, heating or
ventilation outside the hours and days above specified, Landlord may
furnish such service and Tenant shall pay therefor such charges as may
from time to time be in effect. The charge for such after-hours air
conditioning, heating or ventilation presently in effect is Thirty-Five
($35.00) Dollars per hour. In the event Tenant introduces into the
Premises personnel or equipment which overloads the capacity of the
Building system or in any other way interferes with the system's ability
to perform adequately its proper functions, supplementary systems may,
if and as needed, at Landlord's option, be provided by Landlord, at
Tenant's expense.
(b) Landlord shall also provide:
(i) Passenger elevator service from the existing passenger
elevator system in common with Landlord and other tenants in the
Building.
(ii) Warm water for lavatory purposes and cold water (at
temperatures supplied by the city in which the Property is
located) for drinking, lavatory and toilet purposes. If Tenant
uses water for any purpose other than for ordinary lavatory and
drinking purposes, Landlord may assess a reasonable charge for
the additional water so used, or install a water meter and
thereby measure Tenant's water consumption for all purposes. In
the latter event, Tenant shall pay the cost of the meter and the
cost of installation thereof and shall keep such meter and
installation equipment in good working order and repair.
-12-
Tenant agrees to pay for water consumed, as shown on such meter,
together with the sewer charge based on such meter charges, as
and when bills are rendered, and in default in making such
payment Landlord may pay such charges and collect the same from
Tenant as an additional charge.
(iii) Cleaning and janitorial services to the Premises, provided
the same are kept in order by Tenant, substantially in
accordance with the cleaning standards from time to time in
effect for the Building.
(iv) Free access to the Premises on Business Days from 8:00 a.m.
to 6:00 p.m., and at all other times subject to security
precautions from time to time in effect, and subject always to
restrictions based on emergency conditions.
(c) Landlord or Agent may from time to time, but shall not be obligated
to, provide one or more uniformed attendants in or about the lobby of
the Building. Unless Landlord expressly agrees otherwise in writing,
such attendant(s) shall serve functions such as assisting visitors and
invitees of tenants and others in the Building, monitoring fire control
and alarm equipment, and summoning emergency services to the Building as
and when needed. Tenant expressly acknowledges and agrees that: (i) such
attendants shall not serve as police officers, and will be unarmed, and
will not be trained in situations involving potentially physical
confrontation; and (ii) if provided, such attendants will be provided
solely as an amenity to tenants of the Building for the sole purposes
set forth above, and not for the purpose of securing any individual
tenant premises or guaranteeing the physical safety of Tenant's Premises
or of Tenant's employees, agents, contractors or invitees. If and to the
extent that Tenant desires to provide security for the Premises or for
such persons or their property, Tenant shall be responsible for so
doing, after having first consulted with Landlord and after obtaining
Landlord's consent, which shall not be unreasonably withheld. Landlord
expressly disclaims any and all responsibility and/or liability for the
physical safety of Tenant's property, and for that of Tenant's
employees, agents, contractors and invitees, and, without in any way
limiting the operation of Article 10 hereof, Tenant, for itself and its
agents, contractors, invitees and employees, hereby expressly waives any
claim, action, cause of action or other right which may accrue or arise
as a result of any damage or injury to the person or property of Tenant
or any such agent, invitee, contractor or employee. Tenant agrees that,
as between Landlord and Tenant, it is Tenant's responsibility to advise
its employees, agents, contractors and invitees as to necessary and
appropriate safety precautions.
7.5 ELECTRICITY. (a) Landlord shall supply Tenant Electric to the Premises
to meet a demand requirement not to exceed 3.0 xxxxx per square foot of
Premises Rentable Area for standard single-phase 120 volt alternating
current and Tenant agrees in its use of the Premises (i) not to exceed
such requirements and (ii) that its total connected lighting load will
not exceed the maximum from time to time permitted under applicable
governmental regulations. If, without in any way derogating from the
foregoing limitation, Tenant shall require Tenant Electric in excess of
the requirements set forth above, Tenant shall notify Landlord and
Landlord may (without being obligated to do so) supply such additional
service or equipment at Tenant's sole cost and expense. Landlord shall
purchase and install, at Tenant's expense, all lamps, tubes, bulbs,
starters and ballasts. In order to assure that the foregoing
requirements are not exceeded and to avert possible adverse affect on
the Building's electric system, Tenant shall not, without Landlord's
prior consent, connect any fixtures, appliances or equipment to the
Building's electric distribution system other than personal computers,
facsimile transceivers, typewriters, pencil sharpeners, adding machines,
photocopiers, word and data processors, clocks, radios, hand-held or
desk top calculators, dictaphones, desktop computers and other similar
small electrical equipment normally found in business offices and not
drawing more than 15 amps at 120/208 volts.
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(b) From time to time during the Term of this Lease, Landlord shall have
the right to have an electrical consultant selected by Landlord make a
survey of Tenant's electric usage, the result of which survey shall be
conclusive and binding upon Landlord and Tenant. In the event that such
survey shows that Tenant has exceeded the limits set forth in paragraph
(a), in addition to any other rights Landlord may have hereunder, Tenant
shall, upon demand, reimburse Landlord for the cost of such survey and
the cost, as determined by such consultant, of electricity usage in
excess of such limits as an additional charge.
(c) Landlord shall have the right to discontinue furnishing Tenant
Electric to the Premises at any time upon not less than thirty (30)
days' notice to Tenant provided Landlord shall, at Tenant's expense,
separately meter the Premises directly to the applicable public utility
company. If Landlord exercises such right, from and after the effective
date of such discontinuance, Landlord shall not be obligated to furnish
electricity to the Premises, and
(i) Tenant shall no longer be required to pay the Tenant
Electricity Payment or costs of Tenant Electric to Landlord (it
being understood that Tenant shall be solely responsible for
paying the cost of furnishing electricity to the Premises
directly to the applicable utility company); and
(ii) Landlord shall permit Landlord's existing wires, risers,
conduits and other electrical equipment of Landlord to be used
to supply electricity to Tenant provided that the limits set
forth in paragraph (a) shall not be exceeded, and Tenant shall
be responsible for payment of all electricity charges directly
to such utility.
(d) If the public utility rate for the supply of electric energy to the
Building shall be increased from the rate that is in effect as of the
Commencement Date, then the Tenant Electricity Payment shall be
increased in the same proportion as the increase to Landlord. It is
understood that, as used in this subparagraph, the term "rate" shall
include any surcharges which Landlord is required to pay in connection
with obtaining electrical energy for the Building and any other
additional charges now or hereafter in effect.
(e) Tenant shall not at any time contract to purchase electricity from
any provider (an "ASP") other than the service provider from whom
Landlord from time to time shall purchase electricity for the common
areas of the Building, or give any such ASP permission to install lines
or other equipment, without in each case obtaining the Landlord's prior
written consent. Such consent shall not be unreasonably withheld,
provided that it shall not be unreasonable in any case for Landlord to
require: (i) that Landlord shall not be required to incur any expense in
connection with any aspect of the service to be provided by Tenant's
ASP, including without limitation, the cost of installation, service
and/or removal of equipment, fixtures or materials associated therewith;
(ii) that prior to the commencement of any work in the Building by the
ASP, Landlord shall have been furnished with information (acceptable to
Landlord in its sole discretion) as to the ASP's financial condition,
business reputation and insurance coverage; (iii) that Landlord shall
have determined that there is sufficient space in the Premises and in
any common electrical closets (for which Landlord may charge a
reasonable fee) or other facilities for the ASP to install, maintain and
repair its equipment, and that the installation, maintenance and repair
of such equipment shall not have any detrimental effect on the Building,
the Property or on the property or facilities of any other tenant or
occupant of any part thereof; (iv) that Tenant and/or the ASP shall have
obtained all necessary permits, licenses and approvals; (v) that
Landlord shall have the right to have access to any equipment placed in
the Building for purposes of inspection and ensuring compliance
herewith; and (vi) that Tenant's agreement with the ASP shall not result
in any adverse financial impact on Landlord or the other tenants in the
Building. Tenant shall be
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solely responsible for any and all costs and expenses incurred in
connection with the installation, use, maintenance, repair and removal
of such equipment and shall indemnify, defend and hold Landlord harmless
from and against any loss, cost, damage or expense suffered by Landlord
as a result of Tenant's arrangements with its ASP (except to the extent
arising from Landlord's grossly negligent acts or omissions). Landlord
shall have no liability for the service to be provided by any ASP,
including without limitation any loss or interruption of service or any
damages to Tenant or its business arising therefrom.
ARTICLE 8
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this
Article, the term "Tax Year" shall mean each calendar year in which any
part of the Term of this Lease shall fall; and the term "Taxes" shall
mean the actual real estate taxes assessed with respect to the Property
for any Tax Year.
(b) In the event that for any reason, Taxes during any Tax Year shall
exceed Base Taxes, Tenant shall pay to Landlord, as an Escalation
Charge, an amount equal to (i) the excess of Taxes over Base Taxes for
such Tax Year, multiplied by (ii) the Escalation Factor, such amount to
be apportioned for any portion of a Tax Year in which the Commencement
Date falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of Taxes shall be made on
the first day of each and every calendar month during the Term of this
Lease, in the fashion herein provided for the payment of Basic Rent. The
monthly amount so to be paid to Landlord shall be sufficient to provide
Landlord by the time real estate tax payments are due with a sum equal
to Tenant's required payments, as estimated by Landlord from time to
time, on account of Taxes for the then current Tax Year. Promptly after
receipt by Landlord of bills for such Taxes, Landlord shall advise
Tenant of the amount thereof and the computation of Tenant's payment on
account thereof. If estimated payments theretofore made by Tenant for
the Tax Year covered by such bills exceed the required payments on
account thereof for such Tax Year, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant on account of Taxes
(or refund such overpayment if the Term of this Lease has ended and
Tenant has no further obligation to Landlord); but if the required
payments on account thereof for such Tax Year are greater than estimated
payments theretofore made on account thereof for such Tax Year, Tenant
shall make payment to Landlord within 30 days after being so advised by
Landlord.
8.2 ABATEMENT. If Landlord shall receive any tax refund or reimbursement of
Taxes or sum in lieu thereof with respect to any Tax Year, then out of
any balance remaining thereof after deducting Landlord's expenses
reasonably incurred in obtaining such refund, Landlord shall pay to
Tenant, provided there does not then exist a Default of Tenant, an
amount equal to such refund or reimbursement or sum in lieu thereof
multiplied by the Escalation Factor; provided, that in no event, shall
Tenant be entitled to receive more than the payments made by Tenant on
account of Taxes for such Tax Year pursuant to paragraph (b) of Section
8.1 or to receive any payments or abatement of Basic Rent if Taxes for
any Tax Year are less than Base Taxes or Base Taxes are abated.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall replace
the current method of assessment of real estate taxes in whole or part,
or the type thereof, or if additional types of taxes are imposed upon
the Property or Landlord, Tenant agrees that such taxes or other charges
shall be deemed
-15-
to be, and shall be, Taxes hereunder and Tenant shall pay an equitable
share of the same as an additional charge computed in a fashion
consistent with the method of computation herein provided, to the end
that Tenant's share thereof shall be, to the maximum extent practicable,
comparable to that which Tenant would bear under the foregoing
provisions.
(b) If a tax (other than a Federal or State net income tax) is assessed
on account of the rents or other charges payable by Tenant to Landlord
under this Lease, Tenant agrees to pay the same as an additional charge
within ten (10) days after billing therefor, unless applicable law
prohibits the payment of such tax by Tenant.
ARTICLE 9
OPERATING AND UTILITY EXPENSES
9.1 DEFINITIONS. For the purposes of this Article, the following terms shall
have the following respective meanings:
Operating Year: Each calendar year in which any part of the Term of this
Lease shall fall.
Operating Expenses: aggregate costs or expenses reasonably incurred by
Landlord with respect to the operation, administration, cleaning,
repair, maintenance and management of the Property all as set forth in
Exhibit C annexed hereto, provided that, if during any portion of the
Operating Year for which Operating Expenses are being computed, less
than all of Building Rentable Area was occupied by tenants or if
Landlord was not supplying all tenants with the services being supplied
hereunder, actual Operating Expenses incurred shall be reasonably
extrapolated by Landlord on an item by item basis to the estimated
Operating Expenses that would have been incurred if the Building were
fully occupied for such Year and such services were being supplied to
all tenants, and such extrapolated amount shall, for the purposes
hereof, be deemed to be the Operating Expenses for such Year. Without
limitation of the foregoing, Tenant acknowledges that the Building is a
portion of the Park, and that under certain circumstances, Landlord will
have services performed or materials supplied to one or more buildings
or common areas in the Park. Landlord shall allocate the cost of such
services and materials among one, two or all three buildings in the
Park, as Landlord shall deem reasonably appropriate (Landlord's
allocation being conclusive and binding) and, to the extent that any
such cost would be included in Operating Expenses if supplied only to
the Building, the Building's reasonable share of any such costs provided
to the Park shall likewise be included in Operating Expenses.
9.2 TENANT'S PAYMENTS. (a) In the event that for any Operating Year
Operating Expenses shall exceed Base Operating Expenses, Tenant shall
pay to Landlord, as an Escalation Charge, an amount equal to (i) such
excess Operating Expenses multiplied by (ii) the Escalation Factor, such
amount to be apportioned for any portion of an Operating Year in which
the Commencement Date falls or the Term of this Lease ends. Base
Operating Expenses shall not include market-wide cost increases due to
weather and/or extraordinary circumstances, including but not limited
to, Force Majeure, boycotts, strikes, conservation surcharges, embargoes
or shortages.
(b) Estimated payments by Tenant on account of Operating Expenses shall
be made on the first day of each and every calendar month during the
Term of this Lease, in the fashion herein provided for the payment of
Basic Rent. The monthly amount so to be paid to Landlord shall be
sufficient to provide Landlord by the end of each Operating Year a sum
equal to Tenant's required payments, as estimated
-16-
by Landlord from time to time during each Operating Year, on account of
Operating Expenses for such Operating Year. After the end of each
Operating Year, Landlord shall submit to Tenant a reasonably detailed
accounting of Operating Expenses for such Operating Year, and Landlord
shall certify to the accuracy thereof. If estimated payments theretofore
made for such Operating Year by Tenant exceed Tenant's required payment
on account thereof for such Operating Year, according to such statement,
Landlord shall credit the amount of overpayment against subsequent
obligations of Tenant with respect to Operating Expenses (or refund such
overpayment if the Term of this Lease has ended and Tenant has no
further obligation to Landlord); but, if the required payments on
account thereof for such Operating Year are greater than the estimated
payments (if any) theretofore made on account thereof for such Operating
Year, Tenant shall make payment to Landlord within 30 days after being
so advised by Landlord. Landlord shall have the same rights and remedies
for the nonpayment by Tenant of any payments due on account of Operating
Expenses as Landlord has hereunder for the failure of Tenant to pay
Basic Rent.
ARTICLE 10
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. Except to the extent that such claims arise from the
negligent acts or omissions of Landlord or its agents or employees,
Tenant agrees to indemnify and save harmless Landlord from and against
all claims, loss, cost, damage or expense of whatever nature arising:
(i) from any accident, injury or damage whatsoever to any person, or to
the property of any person, occurring in or about the Premises; (ii)
from any accident, injury or damage occurring outside of the Premises
but on the Property where such accident, damage or injury results or is
claimed to have resulted from an act or omission on the part of Tenant
or Tenant's agents or employees or independent contractors; or (iii) in
connection with the conduct or management of the Premises or of any
business therein, or any thing or work whatsoever done, or any condition
created (other than by Landlord) in or about the Premises; and, in any
case, occurring after the date of this Lease until the end of the Term
of this Lease and thereafter so long as Tenant is in occupancy of any
part of the Premises. This indemnity and hold harmless agreement shall
include indemnity against all losses, costs, damages, expenses and
liabilities incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof, including, without
limitation, reasonable attorneys' fees and costs at both the trial and
appellate levels.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force from
the date upon which Tenant first enters the Premises for any reason,
throughout the Term of this Lease, and thereafter so long as Tenant is
in occupancy of any part of the Premises, a policy of commercial general
liability and property damage insurance (including broad form
contractual liability, independent contractor's hazard and completed
operations coverage) under which Tenant is named as an insured and
Landlord, Agent (and such other persons as are in privity of estate with
Landlord as may be set out in a notice from time to time) are named as
additional insureds, and under which the insurer agrees to indemnify and
hold Landlord, Agent and those in privity of estate with Landlord,
harmless from and against all cost, expense and/or liability arising out
of or based upon any and all claims, accidents, injuries and damages set
forth in Section 10.1. Each such policy shall be non-cancelable and
non-amendable with respect to Landlord, Agent and Landlord's said
designees without thirty (30) days' prior notice, shall be written on an
"occurrence" basis, and shall be in at least the amounts of the Initial
Public Liability Insurance specified in Section 1.3 or such greater
amounts as Landlord shall from time to time request, and a duplicate
original thereof shall be delivered to Landlord.
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10.3 TENANT'S RISK. Tenant agrees to use and occupy the Premises and to use
such other portions of the Property as Tenant is herein given the right
to use at Tenant's own risk. Neither Landlord nor Landlord's insurers
shall have any responsibility or liability for any loss of or damage to
Tenant's Removable Property. Tenant shall carry "all-risk" property
insurance on a "replacement cost" basis, insuring Tenant's Removable
Property and any alterations, additions or improvements installed by
Tenant pursuant to Section 5.2, to the extent that the same have not
become the property of Landlord, and other so-called improvements and
betterments. The provisions of this Section 10.3 shall be applicable
from and after the execution of this Lease and until the end of the Term
of this Lease, and during such further period as Tenant may use or be in
occupancy of any part of the Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. Except to the extent that such claims
arise from the negligent acts or omissions of Landlord or its agents or
employees, Tenant agrees that Landlord shall not be responsible or
liable to Tenant, or to those claiming by, through or under Tenant, for
any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying adjoining premises or any part of the
premises adjacent to or connecting with the Premises or any part of the
Property or otherwise.
ARTICLE 11
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. Landlord and Agent shall have the right to enter the
Premises at all reasonable hours for the purpose of inspecting or making
repairs to the same, and Landlord and Agent shall also have the right to
make access available at all reasonable hours to prospective or existing
mortgagees, purchasers or tenants of any part of the Property.
ARTICLE 12
FIRE, EMINENT DOMAIN, ETC
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or casualty,
Basic Rent and Escalation Charges payable by Tenant shall xxxxx
proportionately for the period in which, by reason of such damage, there
is substantial interference with Tenant's use of the Premises, having
regard for the extent to which Tenant may be required to discontinue
Tenant's use of all or a portion of the Premises, but such abatement or
reduction shall end if and when Landlord shall have substantially
restored the Premises (excluding any alterations, additions or
improvements made by Tenant pursuant to Section 5.2) to the condition in
which they were prior to such damage. If the Premises shall be affected
by any exercise of the power of eminent domain, Basic Rent and
Escalation Charges payable by Tenant shall be justly and equitably
abated and reduced according to the nature and extent of the loss of use
thereof suffered by Tenant. In no event shall Landlord have any
liability for damages to Tenant for inconvenience, annoyance, or
interruption of business arising from such fire, casualty or eminent
domain.
12.2 LANDLORD'S RIGHT OF TERMINATION. If the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially
damaged" meaning damage of such a character that
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the same cannot, in ordinary course, reasonably be expected to be
repaired within sixty (60) days from the time that repair work would
commence), or if any part of the Building is taken by any exercise of
the right of eminent domain, then Landlord shall have the right to
terminate this Lease (even if Landlord's entire interest in the Premises
may have been divested) by giving notice of Landlord's election so to do
within 90 days after the occurrence of such casualty or the effective
date of such taking, whereupon this Lease shall terminate 30 days after
the date of such notice with the same force and effect as if such date
were the date originally established as the expiration date hereof.
12.3 RESTORATION. If this Lease shall not be terminated pursuant to Section
12.2, Landlord shall thereafter use due diligence to restore the
Premises (excluding any alterations, additions or improvements made by
Tenant pursuant to Section 5.2) to proper condition for Tenant's use and
occupation, provided that Landlord's obligation shall be limited to the
amount of insurance proceeds available therefor. If, for any reason,
such restoration shall not be substantially completed within six months
after the expiration of the 90-day period referred to in Section 12.2
(which six-month period may be extended for such periods of time as
Landlord is prevented from proceeding with or completing such
restoration for any cause beyond Landlord's reasonable control, but in
no event for more than an additional three months), Tenant shall have
the right to terminate this Lease by giving notice to Landlord thereof
within thirty (30) days after the expiration of such period (as so
extended) provided that such restoration is not completed within such
period. This Lease shall cease and come to an end without further
liability or obligation on the part of either party thirty (30) days
after such giving of notice by Tenant unless, within such 30-day period,
Landlord substantially completes such restoration. Such right of
termination shall be Tenant's sole and exclusive remedy at law or in
equity for Landlord's failure so to complete such restoration, and time
shall be of the essence with respect thereto.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages
to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, and by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and
assign to Landlord, all rights to such damages or compensation, and
covenants to deliver such further assignments and assurances thereof as
Landlord may from time to time request, and Tenant hereby irrevocably
appoints Landlord its attorney-in-fact to execute and deliver in
Tenant's name all such assignments and assurances. Nothing contained
herein shall be construed to prevent Tenant from prosecuting in any
condemnation proceedings a claim for the value of any of Tenant's
Removable Property installed in the Premises by Tenant at Tenant's
expense and for relocation expenses, provided that such action shall not
affect the amount of compensation otherwise recoverable by Landlord from
the taking authority.
ARTICLE 13
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this
Lease any one or more of the following events (herein referred to as a
"Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation Charges
or additional charges hereunder when due and such failure shall
continue for three (3) Business Days after notice to Tenant from
Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be performed
or observed and Tenant shall fail to remedy the same within
thirty (30) days after notice to Tenant specifying
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such neglect or failure, or if such failure is of such a nature
that Tenant cannot reasonably remedy the same within such thirty
(30) day period, Tenant shall fail to commence promptly to
remedy the same and to prosecute such remedy to completion with
diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be taken
on execution or by other process of law directed against Tenant;
or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall be adjudicated insolvent, or shall file any
petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief for itself under any present or future Federal, State or
other statute, law or regulation for the relief of debtors
(other than the Bankruptcy Code, as hereinafter defined), or
shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit in writing
its inability to pay its debts generally as they become due; or
(v) An Event of Bankruptcy (as hereinafter defined) shall occur
with respect to Tenant; or
(vi) A petition shall be filed against Tenant under any law
(other than the Bankruptcy Code) seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future
Federal, State or other statute, law or regulation and shall
remain undismissed or unstayed for an aggregate of sixty (60)
days (whether or not consecutive), or if any trustee,
conservator, receiver or liquidator of Tenant or of all or any
substantial part of its properties shall be appointed without
the consent or acquiescence of Tenant and such appointment shall
remain unvacated or unstayed for an aggregate of sixty (60) days
(whether or not consecutive); or
(vii) If: (x) Tenant shall fail to pay the Basic Rent,
Escalation Charges, additional charges or other charges
hereunder when due or shall fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or
observed and Tenant shall fail to cure any such failure within
the applicable grace period set forth in clauses (i) or (ii)
above; or (y) a Default of Tenant of the kind set forth in
clauses (i) or (ii) above shall occur and Landlord shall, in its
sole discretion, permit Tenant to cure such Default after the
applicable grace period has expired; AND a similar failure or
Default shall occur more than twice within the next 365 days
(whether or not such similar failure is cured within the
applicable grace period);
then in any such case Landlord may terminate this Lease by notice to
Tenant, specifying a date not less than five (5) days after the giving
of such notice on which this Lease shall terminate and this Lease shall
come to an end on the date specified therein as fully and completely as
if such date were the date herein originally fixed for the expiration of
the Term of this Lease, and Tenant will then quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
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(b) For purposes of clause (a)(v) above, an "Event of Bankruptcy" means
the filing of a voluntary petition by Tenant, or the entry of an order
for relief against Tenant, under Chapter 7, 11, or 13 of the Bankruptcy
Code, and the term "Bankruptcy Code" means 11 U.S.C ss.101, ET SEQ.. If
an Event of Bankruptcy occurs, then the trustee of Tenant's bankruptcy
estate or Tenant as debtor-in-possession may (subject to final approval
of the court) assume this Lease, and may subsequently assign it, only if
it does the following within 60 days after the date of the filing of the
voluntary petition, the entry of the order for relief (or such
additional time as a court of competent jurisdiction may grant, for
cause, upon a motion made within the original 60-day period):
(i) file a motion to assume the Lease with the appropriate court;
(ii) satisfy all of the following conditions, which Landlord and
Tenant acknowledge to be commercially reasonable:
(A) cure all Defaults of Tenant under this Lease or provide
Landlord with Adequate Assurance (as defined below) that
it will (x) cure all monetary Defaults of Tenant
hereunder within 10 days from the date of the
assumption; and (y) cure all nonmonetary Defaults of
Tenant hereunder within 30 days from the date of the
assumption;
(B) compensate Landlord and any other person or entity, or
provide Landlord with Adequate Assurance that within 10
days after the date of the assumption, it will
compensate Landlord and such other person or entity, for
any pecuniary loss that Landlord and such other person
or entity incurred as a result of any Default of Tenant,
the trustee, or the debtor-in-possession;
(C) provide Landlord with Adequate Assurance of Future
Performance (as defined below) of all of Tenant's
obligations under this Lease; and
(D) deliver to Landlord a written statement that the
conditions herein have been satisfied.
(c) For purposes only of the foregoing paragraph (b), and in addition to
any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "Adequate Assurance" means at
least meeting the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:
(i) entering an order segregating sufficient cash to pay Landlord
and any other person or entity under paragraph (b) above, and
(ii) granting to Landlord a valid first lien and security interest
(in form acceptable to Landlord) in all property comprising the
Tenant's "property of the estate," as that term is defined in
Section 541 of the Bankruptcy Code, which lien and security
interest secures the trustee's or debtor-in-possession's
obligation to cure the monetary and nonmonetary defaults under
the Lease within the periods set forth in paragraph (b) above;
(d) For purposes only of paragraph (b), and in addition to any other
requirements under the Bankruptcy Code, any future federal bankruptcy
law and applicable case law, "Adequate Assurance of Future
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Performance" means at least meeting the following conditions, which
Landlord and Tenant acknowledge to be commercially reasonable:
(i) the trustee or debtor-in-possession depositing with Landlord, as
security for the timely payment of rent and other monetary
obligations, an amount equal to the sum of two (2) months' Basic
Rent plus an amount equal to two (2) months' installments on
account of Operating Expenses and Taxes, computed in accordance
with Articles 8 and 9;
(ii) the trustee or the debtor-in-possession agreeing to pay in
advance, on each day that the Basic Rent is payable, the monthly
installments on account of Operating Expenses and Taxes,
computed in accordance with Articles 8 and 9 hereof;
(iii) the trustee or debtor-in-possession providing adequate assurance
of the source of the rent and other consideration due under this
Lease;
(iv) Tenant's bankruptcy estate and the trustee or
debtor-in-possession providing Adequate Assurance that the
bankruptcy estate (and any successor after the conclusion of the
Tenant's bankruptcy proceedings) will continue to have
sufficient unencumbered assets after the payment of all secured
obligations and administrative expenses to assure Landlord that
the bankruptcy estate (and any successor after the conclusion of
the Tenant's bankruptcy proceedings) will have sufficient funds
to fulfill Tenant's obligations hereunder; and
(e) If the trustee or the debtor-in-possession assumes the Lease under
paragraph (b) above and applicable bankruptcy law, it may assign its
interest in this Lease only if the proposed assignee first provides
Landlord with Adequate Assurance of Future Performance of all of
Tenant's obligations under the Lease, and if Landlord determines, in the
exercise of its reasonable business judgment, that the assignment of
this Lease will not breach any other lease, or any mortgage, financing
agreement, or other agreement relating to the Property by which Landlord
or the Property is then bound (and Landlord shall not be required to
obtain consents or waivers from any third party required under any
lease, mortgage, financing agreement, or other such agreement by which
Landlord is then bound).
(f) For purposes only of paragraph (e) above, and in addition to any
other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "Adequate Assurance of Future
Performance" means at least the satisfaction of the following
conditions, which Landlord and Tenant acknowledge to be commercially
reasonable:
(i) the proposed assignee submitting a current financial statement,
audited by a certified public accountant, that allows a net
worth and working capital in amounts determined in the
reasonable business judgment of Landlord to be sufficient to
assure the future performance by the assignee of Tenant's
obligation under this Lease; and
(ii) if requested by Landlord in the exercise of its reasonable
business judgment, the proposed assignee obtaining a guarantee
(in form and substance satisfactory to Landlord) from one or
more persons who satisfy Landlord's standards of
creditworthiness;
(g) If this Lease shall have been terminated as provided in this
Article, or if any execution or attachment shall be issued against
Tenant or any of Tenant's property whereupon the Premises shall be taken
or occupied by someone other than Tenant, then Landlord may re-enter the
Premises, either by
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summary proceedings, ejectment or otherwise, and remove and dispossess
Tenant and all other persons and any and all property from the same, as
if this Lease had not been made.
(h) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of
such termination, and thereafter Tenant, until the end of what would
have been the Term of this Lease in the absence of such termination, and
whether or not the Premises shall have been relet, shall be liable to
Landlord for, and shall pay to Landlord, as liquidated current damages:
(x) the Basic Rent, Escalation Charges and other sums that would be
payable hereunder if such termination had not occurred, less the net
proceeds, if any, of any reletting of the Premises, after deducting all
expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, advertising, expenses of employees,
alteration costs and expenses of preparation for such reletting; and (y)
if, in accordance with Section 3.1(a), Tenant commenced payment of the
full amount of Basic Rent on any day other than the Commencement Date,
the amount of Basic Rent that would have been payable during the period
beginning on the Commencement Date and ending on the day Tenant
commenced payment of the full amount of Basic Rent under such Section
3.1(a). Tenant shall pay the portion of such current damages referred to
in clause (x) above to Landlord monthly on the days which the Basic Rent
would have been payable hereunder if this Lease had not been terminated,
and Tenant shall pay the portion of such current damages referred to in
clause (y) above to Landlord upon such termination.
(i) At any time after such termination, whether or not Landlord shall
have collected any such current damages, as liquidated final damages and
in lieu of all such current damages beyond the date of such demand, at
Landlord's election Tenant shall pay to Landlord an amount equal to the
excess, if any, of the Basic Rent, Escalation Charges and other sums as
hereinbefore provided which would be payable hereunder from the date of
such demand assuming that, for the purposes of this paragraph, annual
payments by Tenant on account of Taxes and Operating Expenses would be
the same as the payments required for the immediately preceding
Operating or Tax Year for what would be the then unexpired Term of this
Lease if the same remained in effect, over the then fair net rental
value of the Premises for the same period.
(j) In case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord may (i)
re-let the Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms which may at Landlord's
option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term of this Lease and may
grant concessions or free rent to the extent that Landlord considers
advisable and necessary to re-let the same and (ii) may make such
reasonable alterations, repairs and decorations in the Premises as
Landlord in its sole judgment considers advisable and necessary for the
purpose of reletting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in no event
be liable in any way whatsoever for failure to re-let the Premises, or,
in the event that the Premises are re-let, for failure to collect the
rent under such re-letting. Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed, or in the event of
Landlord obtaining possession of the Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this
Lease.
(k) If a Guarantor of this Lease is named in Section 1.2, the happening
of any of the events described in paragraphs (a)(iv)-(a)(vi) of this
Section 13.1 with respect to the Guarantor shall constitute a Default of
Tenant hereunder.
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(l) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to
which Landlord may at any time be entitled lawfully, and Landlord may
invoke any remedy (including the remedy of specific performance) allowed
at law or in equity as if specific remedies were not herein provided
for.
(m) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses at both the
trial and appellate levels) in enforcing its rights hereunder or
occasioned by any Default of Tenant shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty
(30) days, or if such failure is of such a nature that Landlord cannot
reasonably remedy the same within such thirty (30) day period, Landlord
shall fail to commence promptly (and in any event within such thirty
(30) day period) to remedy the same and to prosecute such remedy to
completion with diligence and continuity. Except as otherwise expressly
provided in this Lease, in no event shall Tenant have the right to
terminate the Lease nor shall Tenant's obligation to pay Basic Rent or
other charges under this Lease xxxxx based upon any default by Landlord
of its obligations under the Lease.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do
or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall increase the rate of
property or liability insurance on the Premises or the Property above
the standard rate applicable to Premises being occupied for Permitted
Uses; and Tenant further agrees that, in the event that Tenant shall do
any of the foregoing, Tenant will promptly pay to Landlord, on demand,
any such increase resulting therefrom, which shall be due and payable as
an additional charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long the
same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of the other's rights hereunder. Further, no waiver
at any time of any of the provisions hereof by Landlord or Tenant shall
be construed as a waiver of any of the other provisions hereof, and a
waiver at any time of any of the provisions hereof shall not be
construed as a waiver at any subsequent time of the same provisions. The
consent or approval of Landlord or Tenant to or of any action by the
other requiring such consent or approval shall not be construed to waive
or render unnecessary Landlord's or Tenant's consent or approval to or
of any subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account of the earliest installment of any payment
due from Tenant under the provisions hereof. The acceptance by Landlord
of a check for a lesser amount with an endorsement or statement thereon,
or upon any letter accompanying such check, that such lesser amount is
payment in full, shall be given no effect, and Landlord may accept such
check without prejudice to any other rights or remedies which Landlord
may have against Tenant.
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14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and provisions
of this Lease, on payment of the Basic Rent and Escalation Charges and
observing, keeping and performing all of the other terms and provisions
of this Lease on Tenant's part to be observed, kept and performed, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the
Premises during the term hereof, without hindrance or ejection by any
persons lawfully claiming under Landlord to have title to the Premises
superior to Tenant; the foregoing covenant of quiet enjoyment is in lieu
of any other covenant, express or implied.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically agreed
that Landlord (original or successor) shall never be personally liable
for any such judgment, or for the payment of any monetary obligation to
Tenant. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise
have to obtain injunctive relief against Landlord or Landlord's
successors in interest, or to take any action not involving the personal
liability of Landlord (original or successor) to respond in monetary
damages from Landlord's assets other than Landlord's equity interest in
the Property.
(b) With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to
furnish the same when prevented from doing so by strike, lockout,
breakdown, accident, order or regulation of or by any governmental
authority, or failure of supply, or failure whenever and for so long as
may be necessary by reason of the making of repairs or changes which
Landlord is required or is permitted by this Lease or by law to make or
in good xxxxx xxxxx necessary, or inability by the exercise of
reasonable diligence to obtain supplies, parts or employees necessary to
furnish such services, or because of war or other emergency, or for any
other cause beyond Landlord's reasonable control, or for any cause due
to any act or neglect of Tenant or Tenant's servants, agents, employees,
licensees or any person claiming by, through or under Tenant, nor shall
any such failure give rise to any claim in Tenant's favor that Tenant
has been evicted, either constructively or actually, partially or
wholly.
(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by
Tenant from whatever cause.
(d) Where provision is made in this Lease for Landlord's consent and
Tenant shall request such consent and Landlord shall fail or refuse to
give such consent, Tenant shall not be entitled to any damages for any
withholding by Landlord of its consent, it being intended that Tenant's
sole remedy shall be an action for specific performance or injunction,
and that such remedy shall be available only in those cases where
Landlord has expressly agreed in writing not to unreasonably withhold
its consent. Furthermore, whenever Tenant requests Landlord's consent or
approval (whether or not provided for herein), Tenant shall pay to
Landlord, on demand, as an additional charge, any expenses incurred by
Landlord (including without limitation legal fees and costs, if any) in
connection therewith.
(e) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same may be made during normal
business hours and Landlord shall have no liability for damages to
Tenant for inconvenience, annoyance or interruption of business arising
therefrom.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. No notice from Tenant to Landlord
alleging any default by Landlord shall be effective unless and until a
copy of the same is given to any person, firm or other entity that holds
a mortgage or a ground lease which includes the Premises (provided
Tenant shall have been furnished with the name and address of such
holder or ground lessor), and the curing of any of Landlord's defaults
by such holder or ground lessor shall be treated as performance by
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Landlord. Landlord hereby gives Tenant notice that the holder of a
mortgage on the Property as of the date hereof is Nationwide Life
Insurance Company, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000,
Attention: Real Estate Investments.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
assignment by Landlord of Landlord's interest in this Lease, or the
rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage on property which
includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage
shall never be treated as an assumption by such holder of any of the
obligations of Landlord hereunder unless such holder shall, by notice
sent to Tenant, specifically otherwise elect and that, except as
aforesaid, such holder shall be treated as having assumed Landlord's
obligations hereunder only upon foreclosure of such holder's mortgage
and the taking of possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases
Landlord's entire interest in the Property back to the seller thereof be
treated as an assumption by operation of law or otherwise, of Landlord's
obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title, for
performance of Landlord's obligations hereunder. In any such event, this
Lease shall be subject and subordinate to the lease to such purchaser.
For all purposes, such seller-lessee, and its successors in title, shall
be the Landlord hereunder unless and until Landlord's position shall
have been assumed by such purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in the event of
any transfer of title to the Property by Landlord, Landlord shall
thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder.
14.7 RULES AND REGULATIONS. Tenant shall abide by rules and regulations from
time to time established by Landlord, it being agreed that such rules
and regulations will be established and applied by Landlord in a
non-discriminatory fashion, such that all rules and regulations shall be
generally applicable to other tenants, of similar nature to the Tenant
named herein, of the Building. Landlord agrees to use reasonable efforts
to insure that any such rules and regulations are uniformly enforced,
but Landlord shall not be liable to Tenant for violation of the same by
any other tenant or occupant of the Building, or persons having business
with them. In the event that there shall be a conflict between such
rules and regulations and the provisions of this Lease, the provisions
of this Lease shall control. Rules and Regulations currently in effect
are set forth in Exhibit B.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums under
this Lease designated as an Escalation Charge or additional charge,
Landlord shall have the same rights and remedies as Landlord has
hereunder for failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
14.10 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms
hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant (except in
the case of Tenant, ONLY such assigns as may be permitted hereunder)
and, if Tenant
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shall be an individual, upon and to his heirs, executors,
administrators, successors and permitted assigns. Each term and each
provision of this Lease to be performed by Tenant shall be construed to
be both a covenant and a condition. The reference contained to
successors and assigns of Tenant is not intended to constitute a consent
to assignment by Tenant, but has reference only to those instances in
which Landlord may later give consent to a particular assignment as
required by those provisions of Article 6 hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but, if the Term of
this Lease (including any extended term) is seven (7) years or longer,
each party hereto agrees, on the request of the other, to execute a
so-called notice of lease in recordable form and complying with
applicable law and reasonably satisfactory to Landlord's attorneys. In
no event shall such document set forth the rent or other charges payable
by Tenant under this Lease; and any such document shall expressly state
that it is executed pursuant to the provisions contained in this Lease,
and is not intended to vary the terms and conditions of this Lease.
14.12 NOTICES. Whenever, by the terms of this Lease, notices shall or may be
given either to Landlord or to Tenant, such notice shall be in writing
and shall be sent by overnight courier with postage prepaid, signature
of recipient requested, or by registered or certified mail, with postage
prepaid, return receipt requested:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address and marked: "Attention: SVP Asset Management" with a copy to
Xxxxxx X. Xxxxxxxxxx, Esq., Goulston & Storrs, 000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX 00000 (or to such other address or addresses as may from time
to time hereafter be designated by Landlord by like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original Address
until the Commencement Date and thereafter to the Premises, (or to such
other address or addresses as may from time to time hereafter be
designated by Tenant by like notice)("Tenant's Notice Address").
All such notices shall be deemed to have been received or given on the
earlier to occur of actual delivery or the date on which delivery is
refused, or, if Tenant has vacated Tenant's Notice Address without
providing a new notice address, three (3) days after notice is deposited
in the U.S. mail or with a courier service in the manner described
above.
14.13 WHEN LEASE BECOMES BINDING; TENANT'S REPRESENTATION. The submission of
this document for examination and negotiation does not constitute an
offer to lease, or a reservation of, or option for, the Premises, and
this document shall become effective and binding only upon the execution
and delivery hereof by both Landlord and Tenant. All negotiations,
considerations, representations and understandings between Landlord and
Tenant are incorporated herein and this Lease expressly supersedes any
proposals or other written documents relating hereto. This Lease may be
modified or altered only by written agreement between Landlord and
Tenant, and no act or omission of any employee or agent of Landlord
shall alter, change or modify any of the provisions hereof.
14.14 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS. The paragraph
headings throughout this instrument are for convenience and reference
only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Lease. The provisions of this Lease
shall be construed as a whole, according to their common meaning (except
where a precise legal interpretation is clearly evidenced), and not for
or against either party. Use in this Lease of the words "including,"
"such as" or words of similar import, when followed by any general term,
statement or matter, shall not be construed to limit such term,
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statement or matter to the specified item(s), whether or not language of
non-limitation, such as "without limitation" or "including, but not
limited to," or words of similar import, are used with reference
thereto, but rather shall be deemed to refer to all other terms or
matters that could fall within a reasonably broad scope of such term,
statement or matter.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate to
any mortgage or ground lease from time to time encumbering the Premises,
whether executed and delivered prior to or subsequent to the date of
this Lease, if the holder of such mortgage or ground lease shall so
elect. If this Lease is subordinate to any mortgage or ground lease and
the holder thereof (or successor) shall succeed to the interest of
Landlord, at the election of such holder (or successor) Tenant shall
attorn to such holder and this Lease shall continue in full force and
effect between such holder (or successor) and Tenant. Tenant agrees to
execute such instruments of subordination or attornment in confirmation
of the foregoing agreement as such holder may request, and Tenant hereby
appoints such holder as Tenant's attorney-in-fact to execute such
subordination or attornment agreement upon default of Tenant in
complying with such holder's request. In no event shall the holder of
any mortgage or ground lease ever: (A) be liable for any act or omission
of Landlord hereunder occurring prior to such holder's succession to
Landlord's interest hereunder; or (B) be subject to any defense or
offset accruing in favor of the Tenant against Landlord prior to such
holder's succession to Landlord's interest hereunder; or (C) be bound by
any modification of this Lease made without such holder's written
consent or by any prepayment of more than one month's rent.
14.16 STATUS REPORT AND FINANCIAL STATEMENTS. Recognizing that Landlord may
find it necessary to establish to third parties, such as accountants,
banks, potential or existing mortgagees, potential purchasers or the
like, the then current status of performance hereunder, Tenant, within
ten (10) days after the request of Landlord made from time to time, will
furnish to Landlord, or any existing or potential holder of any mortgage
encumbering the Premises, the Building or any potential purchaser of the
Premises or the Building (each an "Interested Party"), a statement of
the status of any matter pertaining to this Lease, including, without
limitation, acknowledgments that (or the extent to which) each party is
in compliance with its obligations under the terms of this Lease. In
addition, Tenant shall deliver to Landlord, or any Interested Party
designated by Landlord, financial statements of Tenant, and any
guarantor of Tenant's obligations under this Lease, as reasonably
requested by Landlord including, but not limited to, financial
statements for the past three (3) years. Any such status statement or
financial statement delivered by Tenant pursuant to this Section 14.16
may be relied upon by any Interested Party.
14.17 SECURITY DEPOSIT. If, in Section 1.2 hereof, a security deposit is
specified, Tenant agrees that the same will be paid upon execution and
delivery of this Lease, and that Landlord shall hold the same throughout
the Term of this Lease as security for the performance by Tenant of all
obligations on the part of Tenant hereunder. Landlord shall have the
right from time to time without prejudice to any other remedy Landlord
may have on account thereof, to apply such deposit, or any part thereof,
to Landlord's damages arising from, or to cure, any Default of Tenant.
If Landlord shall so apply any or all of such deposit, Tenant shall
immediately deposit with Landlord the amount so applied to be held as
security hereunder. There then existing no Default of Tenant (nor any
circumstance which, with the passage of time or the giving of notice, or
both, would constitute a Default of Tenant), Landlord shall return the
deposit, or so much thereof as shall have theretofore not been applied
in accordance with the terms of this Section 14.17, to Tenant on the
expiration or earlier termination of the Term of this Lease and
surrender of possession of the Premises by Tenant to Landlord at such
time. While Landlord holds such deposit, Landlord shall have no
obligation to pay interest on the same and shall have the right to
commingle the same with Landlord's other funds. If Landlord conveys
Landlord's interest under this Lease, the deposit, or any part thereof
not previously applied, may be turned over by Landlord to
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Landlord's grantee, and, if so turned over, Tenant agrees to look solely
to such grantee for proper application of the deposit in accordance with
the terms of this Section 14.17, and the return thereof in accordance
herewith. The holder of a mortgage shall not be responsible to Tenant
for the return or application of any such deposit, whether or not it
succeeds to the position of Landlord hereunder, unless such deposit
shall have been received in hand by such holder.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
required, to pay such sums or do any act which requires the expenditure
of monies which may be necessary or appropriate by reason of the failure
or neglect of Tenant to perform any of the provisions of this Lease, and
in the event of the exercise of such right by Landlord, Tenant agrees to
pay to Landlord forthwith upon demand all such sums, together with
interest thereon at a rate equal to 5% over the base rate in effect from
time to time at Bank of America, N.A., or its successor, as an
additional charge. Any payment of Basic Rent, Escalation Charges or
other sums payable hereunder not paid when due shall, at the option of
Landlord, bear interest at a rate equal to 5% over the base rate in
effect from time to time at Bank of America, N.A., or its successor from
the due date thereof and shall be payable forthwith on demand by
Landlord, as an additional charge.
14.19 HOLDING OVER. Any holding over by Tenant after the expiration of the
term of this Lease shall be treated as a daily tenancy at sufferance at
a rate equal to 1.5 times the Basic Rent then in effect plus Escalation
Charges and other charges herein provided (prorated on a daily basis).
Tenant shall also pay to Landlord all damages, direct and/or indirect,
sustained by reason of any such holding over. Otherwise, such holding
over shall be on the terms and conditions set forth in this Lease as far
as applicable. The Landlord may, but shall not be required to, and only
on written notice to Tenant after the expiration of the Term hereof,
elect to treat such holding over as a renewal of one (1) year, to be on
the terms and conditions set forth in this Section 14.19.
14.20 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the following
provision shall not make it impossible to secure insurance coverage
obtainable from responsible insurance companies doing business in the
locality in which the Property is located (even though extra premium may
result therefrom) Landlord and Tenant: (i) mutually agree that, with
respect to any damage to property, the loss from which is covered by
insurance then being carried by them, respectively, the one carrying
such insurance and suffering such loss releases the other of and from,
and forever waives, any and all claims with respect to such loss, but
only to the extent of the limits of insurance carried with respect
thereto, less the amount of any deductible; and (ii) mutually agree that
any property damage insurance carried by either shall provide for the
waiver by the insurance carrier of any right of subrogation against the
other.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of the
Term of this Lease, Tenant shall peaceably quit and surrender to
Landlord the Premises in neat and clean condition and in good order,
condition and repair, together with all alterations, additions and
improvements which may have been made or installed in, on or to the
Premises prior to or during the Term of this Lease, excepting only
ordinary wear and use and damage by fire or other casualty for which,
under other provisions of this Lease, Tenant has no responsibility of
repair or restoration. Tenant shall remove all of Tenant's Removable
Property and, to the extent specified by Landlord, (i) all alterations
and additions made by Tenant and all partitions wholly within the
Premises unless installed initially by Landlord in preparing the
Premises for Tenant's occupancy, and (ii) any wiring, cables or other
installations appurtenant thereto for Tenant's computer, telephone and
other communication systems and equipment whether located in the
Premises or in any other portion of the Building, including all risers.
Upon such removal, Tenant shall restore the Premises to their condition
prior to such alterations, additions and improvements and shall repair
any damages to the Premises or the Building caused by
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such removal and restoration. Any Tenant's Removable Property which
shall remain in the Building or on the Premises after the expiration or
termination of the Term of this Lease shall be deemed conclusively to
have been abandoned, and either may be retained by Landlord as its
property or may be disposed of in such manner as Landlord may see fit,
at Tenant's sole cost and expense.
14.22 SUBSTITUTE SPACE; DEMOLITION. If Landlord so requests, Tenant shall
vacate the Premises and relinquish its rights with respect to the same
provided that Landlord shall provide to Tenant substitute space in the
Building, such space to be reasonably comparable in size, layout, finish
and utility to the Premises, and further provided that Landlord shall,
at its sole cost and expense, move Tenant and its Removable Property
from the Premises to such new space in such manner as will minimize, to
the greatest extent practicable, undue interference with the business or
operations of Tenant. Any such substitute space shall, from and after
such relocation, be treated as the Premises demised under this Lease,
and shall be occupied by Tenant under the same terms, provisions and
conditions as are set forth in this Lease.
14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
broker in connection with the consummation of this Lease other than
Broker, and, in the event of any brokerage claims against Landlord
predicated upon prior dealings with Tenant, Tenant agrees to defend the
same and indemnify Landlord against any such claim (except any claim by
Broker).
14.24 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts
as the same may from time to time exist.
14.25 ANTI-TERRORISM REPRESENTATIONS
Tenant represents and warrants to Landlord that:
(a) Tenant is not, and shall not during the Term of this Lease become, a
person or entity with whom Landlord is restricted from doing business
under the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R.
3162, Public Law 107-56 (commonly known as the "USA Patriot Act") and
Executive Order Number 13224 on Terrorism Financing, effective September
24, 2001 and regulations promulgated pursuant thereto, including,
without limitation, persons and entities named on the Office of Foreign
Asset Control Specially Designated Nationals and Blocked Persons List
(collectively, "Prohibited Persons"); and
(b) Tenant is not currently conducting any business or engaged in any
transactions or dealings, or otherwise associated with, any Prohibited
Persons in connection with the use or occupancy of the Premises; and
(c) Tenant will not in the future during the Term of this Lease engage
in any transactions or dealings, or be otherwise associated with, any
Prohibited Persons in connection with the use or occupancy of the
Premises.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in
multiple copies, each to be considered an original hereof, as of the
date first set forth above.
LANDLORD: Southborough/Westborough LLC, a
Delaware limited liability company
By: ARI Ventures I, LLC, a
Delaware limited liability
company, its managing member
By: Advance Realty Investors,
LLC, its sole member
By: Advance Realty Group, LLC,
its managing member
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
TENANT: Cognistar Interactive Corporation,
a Delaware corporation
By: /s/ Xxxxxxx Xxxx
-------------------------------
President
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EXHIBIT A
PREMISES
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EXHIBIT B
RULES AND REGULATIONS OF BUILDING
I. The following regulations are generally applicable:
1. The public sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant (except as necessary for deliveries) or used for any purpose other
than ingress and egress to and from the Premises. The halls, passages, exits,
entrances, elevators, and stairways are not for the general public, and Landlord
shall in all cases retain the right to control and prevent access thereto of all
persons whose presence in the judgment of Landlord would be prejudicial to the
safety, character, reputation and interests of the Building and its tenants,
provided that nothing herein contained shall be construed to prevent such access
to persons with whom Tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities.
2. No awnings, curtains, blinds shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
Premises or any outside wall of the Building. Such awnings, curtains, blinds,
shades, screens or other projections must be of a quality, type, design and
color, and attached in the manner, approved by Landlord.
3. No show cases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor places in the halls, corridors
or vestibules. Corridor doors, when not in use, shall be kept closed. Nothing
shall be swept or thrown into the corridors, halls, elevator shafts or
stairways.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or like substances shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by the Tenant.
5. Tenant shall not use the Premises or any part thereof, or permit the
Premises or any part thereof to be used, for manufacturing. Tenant shall not use
the Premises or any part thereof or permit the Premises or any part thereof to
be used as a public employment bureau or for the sale of property of any kind at
auction, except in connection with Tenant's business.
6. The Landlord reserves the right to exclude from the Building between
the hours of 6 p.m. and 8 a.m. and at all hours on Sunday and holidays all
persons connected with or calling upon the Tenant who do not present a pass to
the Building signed by the Tenant. Tenant shall be responsible for all persons
for whom it issues any such pass and shall be liable to the Landlord for all
wrongful acts of such persons.
7. The requirements of Tenant will be attended to only upon application
at the Building Manager's Office (Phone: 000-000-0000 and Fax: 000-000-0000).
Employees of Landlord shall not perform any work or do anything outside of their
regular duties, unless under special instructions from the office of the
Landlord.
8. No bicycles, vehicles or animals of any kind (except those seeing-eye
dogs which are for the direct purpose of aiding and assisting the visually
impaired) shall be brought into or kept in or about the Premises.
9. No Tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
building or premises or those having business with them whether by use of any
musical instrument, radio, talking machine, unmusical noise, whistling, singing,
or in any other way. No Tenant shall throw anything out of the doors, windows or
skylights or down the passageways.
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10. Tenant shall not allow the Premises to be used for lodging or
sleeping or for any immoral or illegal purpose, nor shall cooking be done or
permitted by Tenant on or about the Premises, except the use by the Tenant of
Underwriters' Laboratory approved equipment for brewing coffee, tea, hot
chocolate and similar beverages and microwave ovens shall be permitted, provided
that such use is in accordance with all applicable federal, state and city laws,
codes, ordinances, rules and regulations.
11. Tenants shall co-operate with Landlord in obtaining maximum
effectiveness of the cooling system by closing draperies when sun's rays fall
directly on windows of Premises.
12. Landlord shall have the right, exercisable without notice and
without liability to any tenant, to change the name and street address of the
Building.
13. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises and providing related
cleaning supplies, unless otherwise agreed to by Landlord in writing or as
specifically provided for in the Lease. Except with the written consent of
Landlord, no person or persons other than those approved by Landlord shall be
permitted to enter the Building for the purpose of cleaning or supplying
cleaning supplies. Tenant shall not cause any unnecessary janitorial labor
requirements by reason of Tenant's, its agents', employees' or contractors'
carelessness or indifference in the preservation of good order and cleanliness
of the Building.
14. Landlord shall provide all door locks in the Premises at the cost of
the Tenant. Tenant shall not alter any lock or install a new or additional lock
or any bolt on any door of the Premises without the prior written consent of the
Landlord, which shall not be unreasonably withheld. The modification of locks
shall be coordinated through the Landlord's Building Manager (at Tenant's
reasonable expense) and Tenant shall in each case furnish Landlord with a key,
access card, or combination for any such lock. Building card access keys shall
be provided to Tenant, at no charge, according to the Parking Ratio. Additional
or replacement Building card access keys shall be provided at Tenant's expense
according to the then current charge for the same. The current charge for
Building access keys is ten ($10.00) dollars per key. Tenant, upon the
termination of its tenancy, shall deliver to Landlord all keys and key cards to
doors in the Building which have been furnished to the Tenant.
15. Hand trucks shall not be used in any space or public halls of the
Building, either by Tenant or any other occupant of the Building, except those
equipped with rubber tires and side guards or such other material-handling
equipment as Landlord may approve. No other vehicles of any kind shall be
brought by Tenant into the Building or kept in or about the Premises.
16. Tenant agrees to coordinate all moving activity of office equipment,
furniture, and any other bulky or heavy items in and out of the Building with
Landlord or Landlord's agent, and to use the services of an insured professional
moving company.
17. In the case of a bona fide invasion, mob, riot, public excitement or
other circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Building during the
continuance of the same by such action as Landlord may deem appropriate,
including closing access to the Building.
18. Tenant shall ensure the doors of the Premises are closed and locked
an that all water faucets, water apparatus and utilities are shut off before
Tenant or Tenant's employees leave the Premises, so as to prevent waste or
damage.
19. No vending or dispensing machines of any kind may be maintained in
the Premises unless such vending or dispensing machine is not provided in the
common area of Building in which case the same shall be permitted subject to the
prior written consent of the Landlord, which shall not be unreasonably withheld,
conditioned or delayed.
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20. All vehicles are to be properly licensed and parked for business
relating to the Permitted Use. Each vehicle shall be parked within designated
parking spaces, one vehicle to each space. No vehicle shall be parked as a
"billboard" vehicle. Any vehicle improperly parked may be towed away at the
expense of the owner or driver. Tenant shall indemnify, hold and save harmless
Landlord of any liability arising from the towing of any vehicle belonging to
Tenant's employees, agents, contractors or invitees.
21. The Building is a smoke-free environment. There shall be no smoking
permitted anywhere in the Building within and including the Premises, common
areas, bathrooms, hallways, stairwells and lobbies.
II. The following regulations are applicable to any additions, alterations
or improvements being undertaken by or for Tenant in the Premises:
A. GENERAL
1. All alterations, installations or improvements ("Alterations") to be
made by Tenant in, to or about the Premises shall be made in accordance with the
requirements of this Exhibit and by contractors or mechanics approved by
Landlord.
2. Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, complete plans for the Alterations. Drawings are to
be complete with full details and specifications for all of the Alterations.
3. Alterations must comply with the Building Code applicable to the
Property and the requirements, rules and regulations and any other governmental
agencies having jurisdiction.
4. No work shall be permitted to commence without the Landlord being
furnished with a valid permit and all other necessary approvals from agencies
having jurisdiction.
5. All demolition, removals or other categories of work that may
inconvenience other tenants or disturb Building operations, must be scheduled
and performed before or after normal working hours and Tenant shall provide the
Building manager with at least 24 hours' notice prior to proceeding with such
work.
6. All inquiries, submissions, approvals and all other matters shall be
processed through the Building manager.
B. PRIOR TO COMMENCEMENT OF WORK
1. Tenant shall submit to the Building manager a request to perform the
work. The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors for Landlord's
approval.
(ii) Four complete sets of plans and specifications properly stamped by
a registered architect or professional engineer.
(iii) A properly executed building permit application form.
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(iv) Four executed copies of the Insurance Requirements agreement in the
form attached to these Tenant's Work Requirements as Exhibit D from
Tenant's contractor and if requested by Landlord from the contractor's
subcontractors.
(v) Contractor's and subcontractor's insurance certificates including an
indemnity in accordance with the Insurance Requirements agreement.
2. Landlord will return the following to Tenant:
(i) Two sets of plans approved or a disapproval with specific comments
as to the reasons therefor (such approval or comments shall not
constitute a waiver of approval of governmental agencies).
(ii) Two fully executed copies of the Insurance Requirements agreement.
3. Tenant shall obtain a building permit from the Building Department
and necessary permits from other governmental agencies. Tenant shall be
responsible for keeping current all permits. Tenant shall submit copies
of all approved plans and permits to Landlord and shall post the
original permit on the Premises prior to the commencement of any work.
All work, if performed by a contractor or subcontractor, shall be
subject to reasonable supervision and inspection by Landlord's
representative. Such supervision and inspection shall be at Tenant's
sole expense and Tenant shall pay Landlord's reasonable charges for such
supervision and inspection.
C. REQUIREMENTS AND PROCEDURES
1. All structural and floor loading requirements shall be subject to the
prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical
and electrical engineers and all mechanical and electrical work shall be
performed by contractors who are engaged by Landlord in constructing the
Building. When necessary, Landlord will require engineering and shop
drawings, which drawings must be approved by Landlord before work is
started. Drawings are to be prepared by Tenant and all approvals shall
be obtained by Tenant.
3. Elevator service for construction work shall be charged to Tenant at
standard Building rates. Prior arrangements for elevator use shall be
made with Building manager by Tenant. No material or equipment shall be
carried under or on top of elevators. If an operating engineer is
required by any union regulations, such engineer shall be paid for by
Tenant.
4. If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative. No work will be performed in Building mechanical
equipment rooms without Landlord's approval and under Landlord's
supervision.
5. Tenant's contractor shall:
(i) have a superintendent or xxxxxxx on the Premises at all times;
(ii) police the job at all times, continually keeping the Premises
orderly;
(iii) maintain cleanliness and protection of all areas, including
elevators and lobbies.
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(iv) protect the front and top of all peripheral HVAC units and
thoroughly clean them at the completion of work;
(v) block off supply and return grills, diffusers and ducts to keep dust
from entering into the Building air conditioning system; and
(vi) avoid the disturbance of other tenants.
6. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for corrective work.
7. All equipment and installations must be equal to the standards
generally in effect with respect to the remainder of the Building. Any
deviation from such standards will be permitted only if indicated or
specified on the plans and specifications and approved by Landlord.
8. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC
work.
9. Upon completion of the Alterations, Tenant shall submit to Landlord a
permanent certificate of occupancy and final approval by the other
governmental agencies having jurisdiction.
10. Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
11. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
III. The following regulations shall be effective with respect to any plans
or specifications that Tenant is required to prepare under the Lease:
Whenever Tenant shall be required by the terms of the Lease to submit
plans to Landlord in connection with any improvement or alteration to the
Premises, such plans shall include at least the following:
1. Floor plan indicating location of partitions and doors (details
required of partition and door types).
2. Location of standard electrical convenience outlets and telephone
outlets.
3. Location and details of special electrical outlets; E.G.,
photocopiers, etc.
4. Reflected ceiling plan showing layout of standard ceiling and
lighting fixtures. Partitions to be shown lightly with switches
located indicating fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting
fixtures, speakers, etc.
6. Location and specifications of floor covering, paint or paneling
with paint colors referenced to standard color system.
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7. Finish schedule plan indicating wall covering, paint, or paneling
with paint colors referenced to standard color system.
8. Details and specifications of special millwork, glass partitions,
rolling doors and grilles, blackboards, shelves, etc.
9. Hardware schedule indicating door number keyed to plan, size,
hardware required including butts, latchsets or locksets, closures,
stops, and any special items such as thresholds, soundproofing, etc.
Keying schedule is required.
10. Verified dimensions of all built-in equipment (file cabinets,
lockers, plan files, etc.)
11. Location and weights of storage files.
12. Location of any special soundproofing requirements.
13. Location and details of special floor areas exceeding 50 pounds of
live load per square foot.
14. All structural, mechanical, plumbing and electrical drawings, to be
prepared by the base building consulting engineers, necessary to
complete the Premises in accordance with Tenant's Plans.
15. All drawings to be uniform size (30" x 46") and shall incorporate
the standard project electrical and plumbing symbols and be at a
scale of 1/8" = 1' or larger.
16. All drawings shall be stamped by an architect (or, where applicable,
an engineer) licensed in the jurisdiction in which the Property is
located and without limiting the foregoing, shall be sufficient in
all respects for submission to applicable authorization in
connection with a building permit application.
17. Landlord's approval of the plans, drawings, specifications or other
submissions in respect of any work, addition, alteration or
improvement to be undertaken by or on behalf of Tenant shall create
no liability or responsibility on the part of Landlord for their
completeness, design sufficiency or compliance with requirements of
any applicable laws, rules or regulations of any governmental or
quasi-governmental agency, board or authority.
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EXHIBIT C
[ITEMS INCLUDED IN OPERATING EXPENSES]
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social security,
unemployment and similar taxes, workmen's compensation insurance, disability
benefits, pensions, hospitalization, retirement plans and group insurance,
uniforms and working clothes and the cleaning thereof, and expenses imposed on
Landlord or Landlord's agents pursuant to any collective bargaining agreement
for the services of employees of Landlord or Landlord's agents in connection
with the operation, repair, maintenance, cleaning, management and protection of
the Property, and its mechanical systems including, without limitation, day and
night supervisors, property manager, accountants, bookkeepers, janitors,
carpenters, engineers, mechanics, electricians and plumbers and personnel
engaged in supervision of any of the persons mentioned above; provided that, if
any such employee is also employed on other property of Landlord, such
compensation shall be suitably prorated among the Property and such other
properties.
2. The cost of services, utilities, materials and supplies furnished or
used in the operation, repair, maintenance, cleaning, management and protection
of the Property, including without limitation fees, if any, imposed upon
Landlord, or charged to the Property, by the state or municipality in which the
Property is located on account of the need of the Property for increased or
augmented public safety services.
3. The cost of replacements for tools and other similar equipment used
in the repair, maintenance, cleaning and protection of the Property, provided
that, in the case of any such equipment used jointly on other property of
Landlord, such costs shall be suitably prorated among the Property and such
other properties.
4. Where the Property is managed by Landlord or an affiliate of
Landlord, a sum equal to the amounts customarily charged by management firms in
the Suburban Route 495 area for similar properties, but in no event more than
five percent (5%) of gross annual income, whether or not actually paid, or where
managed by other than Landlord or an affiliate thereof, the amounts accrued for
management, together with, in either case, amounts accrued for legal and other
professional fees relating to the Property, but excluding such fees and
commissions paid in connection with services rendered for securing or renewing
leases and for matters not related to the normal administration and operation of
the Building.
5. Premiums for insurance against damage or loss to the Building from
such hazards as shall from time to time be generally required by institutional
mortgagees in the Suburban Route 495 area for similar properties, including, but
not by way of limitation, insurance covering loss of rent attributable to any
such hazards, and public liability insurance.
6. If, during the Term of this Lease, Landlord shall make a capital
expenditure, the total cost of which is not properly includable in Operating
Expenses for the Operating Year in which it was made, there shall nevertheless
be included in such Operating Expenses for the Operating Year in which it was
made and in Operating Expenses for each succeeding Operating Year the annual
charge-off of such capital expenditure. Annual charge-off shall be determined by
dividing the original capital expenditure PLUS an interest factor, reasonably
determined by Landlord, as being the interest rate then being charged for
long-term mortgages by institutional lenders on like properties within the
locality in which the Building is located, by the number of years of useful life
of the capital expenditure; and the useful life shall be determined reasonably
by Landlord in
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accordance with generally accepted accounting principles and practices in effect
at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other
utilities supplied to the Property and not paid for directly (I.E., other than
by escalation payments) by tenants.
8. Betterment assessments provided the same are apportioned equally over
the longest period permitted by law.
9. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
10. Landlord's allocation to the Building of the cost of any services
and materials provided to the Park, to the extent serving or benefiting the
common areas or more than one building (including the Building) in the Park, as
provided in Article 9 of the Lease.
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EXHIBIT D
CONTRACTOR'S INSURANCE REQUIREMENTS
Building:
Tenant:
Premises:
The undersigned contractor or subcontractor ("Contractor") has been
hired by the tenant or occupant (hereinafter called "Tenant") of the
Building named above or by Tenant's contractor to perform certain work
("Work") for Tenant in the Premises identified above. Contractor and
Tenant have requested the undersigned landlord ("Landlord") to grant
Contractor access to the Building and its facilities in connection with
the performance of the Work and Landlord agrees to grant such access to
Contractor upon and subject to the following terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord's Agent
and their respective officers, employees and agents and their
affiliates, subsidiaries and partners, and each of them, from and with
respect to any claims, demands, suits, liabilities, losses and expenses,
including reasonable attorneys' fees, arising out of or in connection
with the Work (and/or imposed by law upon any or all of them) because of
personal injuries, bodily injury (including death at any time resulting
therefrom) and loss of or damage to property, including consequential
damages, whether such injuries to person or property are claimed to be
due to negligence of the Contractor, Tenant, Landlord or any other party
entitled to be indemnified as aforesaid except to the extent
specifically prohibited by law (and any such prohibition shall not void
this Agreement but shall be applied only to the minimum extent required
by law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation and Employers, Liability Insurance covering
each and every xxxxxxx employed in, about or upon the Work, as provided
for in each and every statute applicable to Workmen's Compensation and
Employers' Liability Insurance.
(b) Comprehensive General Liability Insurance including coverages for
Protective and Contractual Liability (to specifically include coverage
for the indemnification clause of this Agreement) for not less than the
following limits:
Personal Injury:
$3,000,000 per person
$10,000,000 per
occurrence
Property Damage:
$3,000,000 per occurrence $3,000,000 aggregate
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(c) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the
Work) for not less than the following limits:
Bodily Injury:
$1,000,000 per person
$1,000,000 per occurrence
Property Damage:
$1,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that
it has complied with the above requirements regarding insurance and
providing that the insurer will give Landlord ten (10) days' prior
written notice of the cancellation of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the
Work to provide the following insurance:
(a) Comprehensive General Liability Insurance including Protective and
Contractual Liability coverages with limits of liability at least equal
to the limits stated in paragraph 2(b).
(b) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the
Work) with limits of liability at least equal to the limits stated in
paragraph 2(c).
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of , 20 .
Contractor: Landlord:
By:
By:
By:
-00-
XXXXXXX X
(Commencement Letter)
_________, 200
[Name of Contact]
[Name of Tenant]
RE: [Name of Tenant]
[Premises Rentable Area and Floor]
Dear [Name of Contact]:
Reference is made to that certain Lease, dated as of _____, 200 ,_____
between as Landlord and as Tenant, _______ with respect to approximately square
feet of space on the floor of , Massachusetts. In accordance with Section 4.1 of
the Lease, this is to confirm that the Commencement Date of the term of such
Lease occurred on , and that the Initial Term of such Lease shall expire on
_________. If the foregoing is in accordance with your understanding, would you
kindly execute this letter in the space provided below, and return the same to
us for execution by Landlord, whereupon it will become a binding agreement
between us.
Very truly yours,
By:
(Vice) President
Accepted and Agreed:
[Name of Tenant]
By:
Name:
Title:
Date:
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EXHIBIT F
WORK AGREEMENT
Terms used but not defined in this Exhibit shall have the meaning ascribed to
them in the Lease.
A. TENANT'S AUTHORIZED REPRESENTATIVE. Tenant designates __________________
_________________________________ ("Tenant's Authorized Representative")
as the person authorized to initial all plans, drawings, change orders
and approvals pursuant to this Exhibit. Landlord shall not be obligated
to respond to or act upon any such item until such item has been
initialed by Tenant's Authorized Representative.
B. CONSTRUCTION OF THE PREMISES. Landlord shall, at its expense, install
the initial improvements specified in the Plans to be prepared by
Landlord in accordance with Section 4.2 of the Lease ("Landlord's
Work"). Landlord shall not be obligated to provide any improvements,
other than Landlord's Work. The Landlord's Work expressly excludes any
work related to any Tenant's furniture, computers, communication and
other business equipment and/or wiring and all other personal property
and trade fixtures. Notwithstanding the foregoing, if Tenant requests
that Landlord perform additional items of work which are not specified
in the Plans, and if Landlord approves such request, Tenant shall pay
for all costs associated therewith as provided for in Section E hereto.
Promptly upon completion of the revised Plans, Landlord shall notify
Tenant in writing of the increased cost in the Landlord's Work, if any,
resulting from such additional items of work. Tenant, within one (1)
Business Day, shall notify Landlord in writing, whether it desires to
proceed with such revisions. In the absence of such written
authorization, Landlord shall have the option to continue work on the
Premises disregarding the requested revision. Tenant shall be
responsible for any delay in completion of the Premises resulting from
any such revisions. Notwithstanding anything herein to the contrary, all
revisions to this Exhibit F shall be subject to the approval of
LANDLORD. All amounts payable by Tenant pursuant to this Exhibit F shall
be considered additional rent and subject to all applicable provisions
of the Lease. Notwithstanding the foregoing, except as otherwise
expressly provided herein, Landlord shall not be required to perform
work which would (i) require changes to structural components or the
exterior design of the Building, (ii) require any material modification
to the Building's mechanical installations or installations outside the
Premises, (iii) not comply with all Laws, (iv) be incompatible with the
building plans filed with appropriate governmental authorities or with
the occupancy of the Building as a first-class office building, or (v)
delay the completion of any other work in the Building. Any changes
required by any government department affecting the construction of the
Building or the Premises shall not be deemed to violate any plans or
provisions of this Exhibit F, and shall be accepted by Tenant.
C. SCHEDULE.
a. If any plans and drawings are prepared by Landlord's architect
or engineer, such plans and drawings will be prepared on
Tenant's behalf and Tenant shall be responsible for the timely
completion of all plans and working drawings and for their
compliance with all applicable laws and codes. Certain plans and
specifications for the Building are available for Tenant's
inspection at the property manager's offices. Any plans prepared
by other than Landlord's architect or engineer shall be prepared
by a licensed architect and engineer approved by Landlord, shall
be in a form sufficient to secure the approval of government
authorities with jurisdiction over the approval thereof, and
shall be otherwise satisfactory to Landlord.
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b. Attached hereto as Schedule I are the specifications for
Landlord's Work. Based on Exhibit A and Schedule I, Landlord
will prepare the Plans, including all specifications, details,
finishes (including, without limitation, paint and carpet
selections), elevations and sections, and shall indicate
partition layout, door location, special equipment types, floor
load requirements exceeding fifty (50) pounds per square foot
live load, telephone and electrical outlet locations, and the
seating capacity of all conference rooms. Tenant shall provide
such information as Landlord deems necessary in order to
complete the Plans.
D. APPROVAL. All Plans and any revisions to the Plans requested by Tenant
shall be subject to Landlord's written approval. Any such approval shall
not constitute either (a) approval of any delay caused by Tenant or a
waiver of any right or remedy that may arise as a result of such delay,
or (b) Landlord's representation that such approved Plans or revisions
comply with all Laws.
E. REVISIONS. If Landlord submits an estimate of the additional expenses
attributable to a revision (which shall include any applicable state
sales or use tax thereon and a fee for Landlord's construction
management in an amount not less than five percent (5%) of the total
cost), then Tenant shall pay such estimated additional expenses prior to
the performance of the work contemplated by such revision. Landlord
shall not be obligated to commence any such additional work until such
payment is received. If the actual additional expenses attributable to
such revision exceed such estimated additional expenses, then Tenant
shall pay the amount of such excess no later than the earlier of the
Premises Commencement Date or ten (10) days after Tenant's receipt of a
xxxx therefor. If such estimated additional expenses exceed the actual
additional expenses attributable to such revision, then the amount of
such excess shall be credited against the next installment(s) of Basic
Rent.
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SCHEDULE I
SPECIFICATIONS
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