Execution Copy
GROSS LEASE
(w/Base Amounts)
THIS LEASE (this "Lease") is made as of February ___, 2004, by and between
"Landlord" Corporate Drive Corporation, as Trustee of Corporate Drive
-------- Nominee Realty Trust, a Massachusetts nominee trust
and
"Tenant" ClickSoftware, Inc., a corporation organized under the laws of
------ California.
TABLE OF CONTENTS
SECTION 1: DEFINITIONS.........................................................1
Access Laws.................................................................1
Additional Rent.............................................................1
Base Amount Allocable to the Premises.......................................1
Base Rent...................................................................1
Brokers.....................................................................1
Building....................................................................1
Business Day................................................................1
Claims......................................................................1
Commencement Date...........................................................2
ERISA.......................................................................2
Estimated Operating Costs Allocable to the Premises.........................2
Events of Default...........................................................2
Furniture...................................................................2
Governmental Agency.........................................................2
Governmental Requirements...................................................2
Hazardous Substance(s):.....................................................2
Land........................................................................2
Landlord....................................................................2
Landlord's Agents...........................................................2
Landlord's Transaction Costs................................................2
Lease Memorandum............................................................2
Lease Term..................................................................2
Lender......................................................................2
Manager.....................................................................2
Manager's Address...........................................................2
Operating Costs.............................................................2
Operating Costs Allocable to the Premises...................................2
Park........................................................................2
Parking Ratio...............................................................2
Permitted Use...............................................................2
Plans and Specifications....................................................2
Prepaid Rent................................................................2
Premises....................................................................3
Prime Rate..................................................................3
Property Taxes..............................................................3
Punch List Work.............................................................3
Restrictions................................................................3
Substantial Completion......................................................3
Telecommunication Facilities................................................3
Telecommunication Services..................................................4
Tenant......................................................................4
Tenant Alterations..........................................................4
Tenant Improvement Allowance................................................4
Tenant Improvements.........................................................4
Tenant's Agents.............................................................4
Tenant's Pro Rata Share....................................................4
Year........................................................................4
SECTION 2: PREMISES AND TERM..................................................4
2.1 Lease of Premises.....................................................4
2.2 Lease Term............................................................4
2.3 Intentionally Omitted.................................................5
2.4 Commencement Date.....................................................5
2.5 Tenant's Contribution to Tenant Improvement Costs.....................6
2.6 Lease Memorandum......................................................7
2.7 Use and Conduct of Business...........................................8
2.8 Compliance with Governmental Requirements and Rules and Regulations...8
SECTION 3: BASE RENT, ADDITIONAL RENT AND OTHER SUMS PAYABLE UNDER LEASE...8
3.1 Payment of Rental.....................................................8
3.2 Base Rent.............................................................8
3.3 Lease Security Provisions.............................................9
3.4 Additional Rent......................................................10
3.5 Utilities............................................................13
3.6 Holdover.............................................................14
3.7 Late Charge..........................................................14
3.8 Default Rate.........................................................14
SECTION 4: MANAGEMENT AND LEASING PROVISIONS.................................15
4.1 Maintenance and Repair by Landlord...................................15
4.2 Maintenance and Repair by Tenant.....................................15
4.3 Common Areas/Security................................................16
4.4 Tenant Alterations...................................................16
4.5 Tenant's Work Performance............................................16
4.6 Surrender of Possession..............................................17
4.7 Removal of Property..................................................17
4.8 Access...............................................................18
4.9 Damage or Destruction................................................18
4.10 Condemnation.........................................................19
4.11 Parking..............................................................20
4.12 Indemnification......................................................20
4.13 Tenant Insurance.....................................................20
4.14 Landlord's Insurance.................................................21
4.15 Waiver of Subrogation................................................21
4.16 Assignment and Subletting by Tenant..................................21
4.17 Assignment by Landlord...............................................23
4.18 Estoppel Certificates and Financial Statements.......................23
4.19 Intentionally Omitted................................................24
4.20 Hazardous Substances.................................................24
4.21 Access Laws..........................................................25
4.22 Quiet Enjoyment......................................................25
4.23 Signs................................................................25
4.24 Subordination........................................................25
4.25 Workers Compensation Immunity........................................26
4.26 Brokers..............................................................26
4.27 Limitation on Recourse...............................................26
4.28 Mechanic's Liens and Tenant's Personal Property Taxes................27
4.29 Intentionally Omitted................................................27
4.30 No Offset; Independent Covenants; Waiver.............................27
4.31 Occupancy............................................................27
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SECTION 5: DEFAULT AND REMEDIES..............................................27
5.1 Events of Default....................................................27
5.2 Remedies.............................................................28
5.3 Right to Perform.....................................................29
5.4 Landlord's Default...................................................29
SECTION 6: MISCELLANEOUS PROVISIONS.........................................30
6.1 Notices..............................................................30
6.2 Attorney's Fees and Expenses.........................................30
6.3 No Accord and Satisfaction...........................................30
6.4 Successors; Joint and Several Liability..............................30
6.5 Choice of Law........................................................30
6.6 No Waiver of Remedies................................................30
6.7 Offer to Lease.......................................................31
6.8 Force Majeure........................................................31
6.9 Landlord's Consent...................................................31
6.10 Severability; Captions...............................................31
6.11 Interpretation.......................................................31
6.12 Incorporation of Prior Agreement; Amendments.........................31
6.13 Authority............................................................31
6.14 Time of Essence......................................................32
6.15 Survival of Obligations..............................................32
6.16 Consent to Service...................................................32
6.17 Landlord's Authorized Agents.........................................32
6.18 Waiver of Jury Trial.................................................32
LISTING OF EXHIBITS
Exhibit A Intentionally Omitted
Exhibit B Drawing Showing Location and Configuration of the Premises
Exhibit C Listing of Plans and Specifications for Tenant Improvements
Exhibit D Form of Lease Memorandum
Exhibit E Rules and Regulations
Exhibit F Letter of Credit Criteria
Exhibit G Furniture
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1
SECTION 1: DEFINITIONS
----------------------
ACCESS LAWS: The Americans With Disabilities Act of 1990 (including the
Americans with Disabilities Act Accessibility Guidelines for Building
and Facilities) and all other Governmental Requirements relating to
the foregoing.
ADDITIONAL RENT: Defined in paragraph captioned "Additional Rent".
BASE AMOUNT ALLOCABLE TO THE PREMISES: Defined in paragraph captioned
"Additional Rent".
BASE RENT: The monthly amount of Base Rent and the portion of the Lease
Term during which such monthly amount of Base Rent is payable shall
be determined from the following table. For convenience and ease of
reference, the annual rental rate for the computation of Base Rent
and the annual Base Rent are also set forth in tabular form with the
annual Base Rent equaling the monthly Base Rent installment
multiplied by twelve. In the case of any conflict or inconsistency
between the Monthly Base Rent installment and the other illustrative
figures set forth in tabular form or in any computations utilizing
such figures, the monthly Base Rent installment so specified shall be
controlling and conclusive.
Rate Annual Base Monthly Base
Applicable Portion of Lease Term Per/Rentable Rent Rent Installment
Sq. Ft./ Annum (Annual / 12)
--------------------------------------- ------------------ ------------------- ------------------
Months 01 through 04 $18.50 $163,207.00 $13,600.58
--------------------------------------- ------------------ ------------------- ------------------
Months 05 through 12 $18.50 $163,207.00 $13,600.58
--------------------------------------- ------------------ ------------------- ------------------
Months 13 through 36 $19.00 $167,618.00 $13,968.17
--------------------------------------- ------------------ ------------------- ------------------
Months 37 through 48 $19.50 $172,029.00 $14,335.75
--------------------------------------- ------------------ ------------------- ------------------
Months 49 through 64 $20.00 $176,440.00 $14,703.33
--------------------------------------- ------------------ ------------------- ------------------
The above rent schedule begins on the first day of the first full month of the
Lease Term beginning on or after the Commencement Date. If the Commencement
Date is a date other than the first day of a calendar month, Base Rent for the
partial month in which the Commencement Date occurs shall be at the same rate
as months 5 through 12, but shall be prorated as provided in Paragraph 3.2
hereof. Notwithstanding the foregoing, Landlord shall xxxxx all Base Rent
applicable to the Premises for the first four (4) full months of the Lease
Term beginning on or after the Commencement Date, provided, however, if the
Lease is terminated prior to the expiration of the Lease Term as a result of a
default by Tenant, in addition to all other damages to which Landlord may be
entitled under the Lease and applicable law, Tenant immediately and without
notice shall pay Landlord (a) the full amount of all Base Rent which had been
abated as aforesaid if the Lease is terminated within sixteen (16) months
after the Commencement Date, (b) three (3) months of the Base Rent which had
been abated as aforesaid if the Lease is terminated within twenty-eight (28)
months after the Commencement Date, and (c) two (2) months of the Base Rent
which had been abated as aforesaid if the Lease is terminated any time during
the Lease Term after the twenty-eighth (28th) month of the Lease Term.
Although Landlord shall xxxxx Base Rent payable for the first four (4) full
months of the Lease Term beginning on or after the Commencement Date, Tenant
acknowledges and agrees that Tenant shall be liable for all Additional Rent
payable during such period.
BROKERS: Tenant was represented in this transaction by The Codman Company, a
licensed real estate broker. Landlord was represented in this
transaction by Xxxxxxxx Xxxx Company, a licensed real estate broker.
BUILDING: The building located on the Land at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, commonly known as 000 Xxxxxxxxxx Xxxxxx and containing
approximately 119,702 rentable square feet.
BUSINESS DAY: Calendar days, except for Saturdays and Sundays and holidays when
banks are closed in Washington, D.C.
CLAIMS: An individual and collective reference to any and all claims, demands,
damages, injuries, losses, liens, liabilities, penalties, fines,
lawsuits, actions, other proceedings and expenses (including attorneys'
fees and expenses incurred in connection with the proceeding whether at
trial or on appeal).
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COMMENCEMENT DATE: The earlier to occur of: (a) the date of Substantial
Completion; or (b) the date on which Tenant takes possession of all
or part of the Premises (other than solely for purposes of installing
wiring and cabling pursuant to Paragraph 2.4.2 hereof).
ERISA: The Employee Retirement Income Security Act of 1974, as now or
hereafter amended, and the regulations promulgated under it.
Estimated Operating Costs Allocable to the Premises: Defined in paragraph
captioned "Additional Rent".
EVENTS OF DEFAULT: One or more of those events or states of facts defined in
the paragraph captioned "Events of Default".
FURNITURE: The furniture, fixtures and equipment located in the Premises and
described in Exhibit G hereto.
GOVERNMENTAL AGENCY: The United States of America, the state in which the Land
is located, any county, city, district, municipality or other
governmental subdivision, court or agency or quasi-governmental
agency having jurisdiction over the Land and any board, agency or
authority associated with any such governmental entity, including the
fire department having jurisdiction over the Land.
GOVERNMENTAL REQUIREMENTS: Any and all statutes, ordinances, codes, laws,
rules, regulations, orders and directives of any Governmental Agency
as now or later amended.
HAZARDOUS SUBSTANCES: Asbestos, PCBs, petroleum or petroleum-based chemicals or
substances, urea formaldehyde or any chemical, material, element,
compound, solution, mixture, sub-stance or other matter of any kind
whatsoever which is now or later defined, classified, listed,
designated or regulated as hazardous, toxic or radioactive by any
Governmental Agency.
LAND: The land upon which the Building is located in Burlington, Middlesex
County, Commonwealth of Massachusetts.
LANDLORD: The trust named on the first page of this Lease, or its successors
and assigns as provided in paragraph captioned "Assignment by
Landlord".
LANDLORD'S AGENTS: The trustee of and consultants and advisors to the Landlord
and employees of the foregoing.
LANDLORD'S TRANSACTION COSTS: All costs and expenses incurred by Landlord in
connection with this Lease, including, without limitation, the Tenant
Improvement Allowance, any brokerage fees or commissions,
architectural and engineering fees, and attorneys' fees and expenses.
LEASE MEMORANDUM: Defined in paragraph entitled "Lease Memorandum".
LEASE SECURITY DEPOSIT: The letter of credit delivered by Tenant to Landlord
as described in the paragraph entitled "Security Provisions."
LEASE TERM: Commencing on the Commencement Date and ending on the last day of
that calendar month which is sixty-four (64) months after the
Commencement Date, provided that, if the Commencement Date is the
first day of a calendar month, the Lease Term shall end on the last
day of the sixty-fourth (64th) calendar month beginning on, and
including, the Commencement Date.
LENDER: Defined in paragraph entitled "Landlord's Default".
MANAGER: Xxxxxxxx Xxxx Services, Inc, or its replacement as specified by
written notice from Landlord to Tenant.
MANAGER'S ADDRESS: 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, which
address may be changed by written notice from Landlord to Tenant.
OPERATING COSTS: Defined in paragraph captioned "Additional Rent".
OPERATING COSTS ALLOCABLE TO THE PREMISES: Defined in paragraph captioned
"Additional Rent".
PARK: The office park in which the Building is located, known as Burlington
Centre Office Park.
PARKING RATIO: 3.1 stalls per 1,000 retable square feet of the Premises.
PERMITTED USE: General business office uses, so long as such use is consistent
with Governmental Requirements and with first-class buildings of the
same or similar use as the Building located in the metropolitan area
in which the Building is located.
PLANS AND SPECIFICATIONS: Those certain plans and specifications for the Tenant
Improvements as listed in Exhibit C and any modifications to them
approved in writing by Landlord and Tenant.
PREPAID RENT: $13,600.58, to be applied toward Base Rent for the first full
calendar month of the Lease Term or to the first month in which full
rent is due.
2
PREMISES: The portion of the Building located on the first floor and
designated as Suite 140, depicted on the plan attached as Exhibit B
and agreed by Landlord and Tenant for all purposes under this Lease
to consist of approximately eight thousand eight hundred twenty-two
(8,822) rentable square feet. The number of rentable square feet
recited herein shall be final, conclusive and controlling.
PRIME RATE: Defined in paragraph captioned "Default Rate".
PROPERTY TAXES: (a) Any form of ad valorem real or personal property tax or
assessment imposed by any Governmental Agency on the Land, Building,
related improvements or any personal property owned by Landlord
associated with such Land, Building or improvements; (b) any other
form of tax or assessment, license fee, license tax, tax or excise on
rent or any other levy, charge, expense or imposition made or
required by any Governmental Agency on any interest of Landlord in
such Land, Building, related improvements or personal property; (c)
any fee for services charged by any Governmental Agency for any
services such as fire protection, street, sidewalk and road
maintenance, refuse collection, school systems or other services
provided or formerly provided to property owners and residents within
the general area of the Land; (d) any governmental impositions
allocable to or measured by the area of any or all of such Land,
Building, related improvements or personal property or by the amount
of any base rent, additional rent or other sums payable under any
lease for any or all of such Land, Building, related improvements or
personal property; (e) any gross receipts or other excise tax
allocable to, measured by or a function of any one or more of the
matters referred to in clause (d); (f) any impositions by any
Governmental Agency on any transaction evidenced by a lease of any or
all of such Land, Building, related improvements or personal
property; (g) any increase in any of the foregoing based upon
construction of improvements or change of ownership of any or all of
such Land, Building, related improvements or personal property, and
(h) tax consultant fees and expenses and costs of appeals of any
Property Taxes. Property Taxes shall not include taxes on Landlord's
net income.
PUNCH LIST WORK: Minor items of repair, correction, adjustment or
completion as such phrase is commonly understood in the construction
industry in the metropolitan area in which the Land is located.
RESTRICTIONS: Any covenants, conditions and restrictions applicable to the
Land which are recorded with the Middlesex County (Southern District)
Registry of Deeds.
SUBSTANTIAL COMPLETION: The date that the Tenant Improvements have been
completed substantially in accordance with the Plans and
Specifications, subject to Punch List Work. The Tenant Improvements
shall be deemed to be substantially complete upon the issuance of a
temporary or permanent certificate of occupancy by the proper
governmental authority. Notwithstanding the above, the Tenant
Improvements shall be considered substantially complete even though
(a) there remains to be completed Punch List Work, the lack of which
will not materially interfere with Tenant's permitted use of the
Premises including, without limitation, minor or insubstantial
details of construction, decoration or mechanical adjustment, or (b)
there is a delay in substantial completion due to Tenant's failure to
meet its obligations under this Lease or "Tenant Delay" as such term
is defined in this Lease, or (c) there are any undelivered or
uninstalled long lead items previously identified as such or (d) the
certificate of occupancy is not issued due to Tenant's failure to
complete the Tenant Installation of furniture, fixtures or equipment
or other items (if any) to be installed or constructed by Tenant
pursuant to this Lease. Without limiting the foregoing, if the
Landlord or the general contractor is delayed in substantially
completing the Tenant Improvements as a result of the occurrence of
Tenant Delay, then for purposes of determining the Commencement Date,
the date of substantial completion shall be deemed to be the date
that the Tenant Improvements would have been substantially completed
absent any Tenant Delay.
As used herein, the phrase "long lead item" shall mean any item of
the Tenant Improvements or material element thereof which Landlord
reasonably identifies at the time Landlord reviews Tenant's proposed
Plans as provided in paragraph 2.3 as unavailable at the Premises in
time to be completed and installed prior to the anticipated
Commencement Date.
TELECOMMUNICATION FACILITIES: Equipment, facilities, apparatus and other
materials utilized for the purpose of electronic telecommunication,
including cable, switches, wires, conduit and sleeves.
3
TELECOMMUNICATION SERVICES: Services associated with electronic
telecommunications, whether in a wired or wireless mode. Basic voice
telephone services are included within this definition.
TENANT: The person or entity(ies) named on the first page of this Lease.
TENANT ALTERATIONS: Defined in paragraph captioned "Tenant Alterations".
TENANT DELAY: Any delay in the completion of construction of Tenant
Improvements resulting from (i) Tenant's failure to comply with the
provisions of this Lease, including without limitation, Tenant's
failure to meet any time deadlines established herein, (ii) any
additional time as reasonably determined by Landlord required for
ordering, receiving, fabricating and/or installing long lead items or
items of materials or other components of the construction of Tenant
Improvements, including, without limitation, mill work, which are not
used in the construction of Tenant Improvements in accordance with
Landlord's building standards and which causes a delay in the
Substantial Completion of the Tenant Improvements beyond the time
when such improvements would otherwise be completed if constructed in
accordance with the standards used in the remainder of the Building,
(iii) delay in work caused by submission by Tenant of a request for
any change order following Landlord's approval of the Plans and
Specifications, (iv) any additional time, as reasonably determined by
Landlord, required for implementation of any change order with
respect to the Tenant Improvements, (v) any other delay arising from
the act or omission of Tenant or Tenant's Agents, and/or (vi) the
occurrence of any other act, omission, failure, or event which this
Lease describes as "Tenant Delay.
TENANT IMPROVEMENT ALLOWANCE: The maximum amount, if any, to be expended by
Landlord for the cost of Tenant Improvements (including
architectural, engineering, permitting and space planning fees, and
the Construction Management Fee), which maximum shall not exceed
Eight Thousand Eight Hundred Twenty-Two and 00/100 Dollars ($8,822).
TENANT IMPROVEMENTS: Those alterations or improvements to the Premises as
appear and are depicted in the Plans and Specifications.
TENANT'S AGENTS: Any and all officers, partners, contractors, subcontractors,
consultants, licensees, agents, concessionaires, subtenants,
servants, employees, customers, guests, invitees or visitors of
Tenant.
TENANT'S PRO RATA SHARE: is 8,822/119,702 = seven and thirty-seven
one-hundredths percent (7.37%), which shall be final, conclusive and
controlling during the Lease Term for all purposes, except as the
same may be adjusted to reflect any expansion of the Premises or any
construction after the date hereof of any additional rentable square
feet in the Building.
YEAR: A calendar year commencing January 1 and ending December 31 or that
portion of the calendar year within the Lease Term.
SECTION 2: PREMISES AND TERM
----------------------------
2.1 LEASE OF PREMISES. Landlord leases the Premises to Tenant, and Tenant
leases the Premises from Landlord, upon the terms and conditions set forth in
this Lease. During the Lease Term, Tenant shall have the right to use the
Furniture, provided that use of the Furniture shall be entirely at the
Tenant's risk. Landlord makes no representation or warranty whatsoever
concerning the Furniture and Tenant accepts same in its AS IS, WHERE IS
condition. Tenant shall be responsible for all maintenance, repair or
replacement which may be required for the Furniture. Tenant shall not remove
any of the Furniture from the Premises.
2.2 LEASE TERM.
2.2.1 INITIAL LEASE TERM. The Lease Term shall be for the period stated
in the definition of that term, unless earlier terminated as provided in this
Lease.
2.2.2 OPTION TO EXTEND. While the Lease is in full force and effect,
provided the Tenant is not in default of any of the terms, covenants and
conditions thereof, beyond any applicable notice and cure periods, and further
provided that ClickSoftware, Inc. is itself occupying at least fifty percent
(50%) of the Premises then demised to Tenant, in each case both as of the time
of option exercise and as of the commencement of the herein additional term,
Tenant shall have the right or option (the "Extension Option") to extend the
original term of this Lease for one (1) period of three (3) years. Such
extension of the original term shall be on the same terms, covenants and
conditions as provided for in the original term except (a) Tenant shall have
no further option to extend the term, (b) the base year for Property Taxes and
4
Operating Expenses (net of Property Taxes) shall be updated to then current
calendar year and fiscal tax year as of the date of exercise of the Extension
Option, (c) the Base Rent during the extended term shall be ninety-five
percent (95%) of the fair market rental value for new leases, as determined by
Landlord, taking into account new leases then currently being negotiated or
executed for comparable space in the office park in which the Building is
located, including provisions for subsequent increases and other adjustments
and also taking into account such new base years, or if no new leases are then
being negotiated or executed in such office park, the fair market rental value
shall be determined by Landlord taking into account new leases then being
negotiated or executed for comparable space located elsewhere in first-class
office buildings located in the Burlington, Massachusetts area, and (d)
Landlord shall have no obligation to prepare, refurbish or construct the
Premises or any part thereof prior to the commencement of the herein
additional term or otherwise provide any amount of improvement allowance in
respect of the Premises. Notwithstanding the foregoing, in no event shall the
Base Rent on account of any additional term be less than the annual Base Rent
payable for the Premises as of the date immediately preceding the commencement
of such additional term. Notice of Tenant's intention to exercise the
Extension Option must be given to Landlord, in writing, at least nine (9)
months prior to the expiration of the initial term of the Lease.
2.2.3 EARLY TERMINATION RIGHT. Notwithstanding any other provision of
this Lease to the contrary, Tenant shall have the right to terminate this
Lease effective as of the last day of any calendar month after the fortieth
(40th) full month of the Lease Term, provided that (a) Tenant provides
Landlord with written notice of its election to terminate not later than the
date which is nine (9) months prior to the designated termination date (the
"Early Termination Date"), which notice shall set forth the Early Termination
Date and shall be binding and irrevocable (the "Early Termination Notice"),
(b) Tenant pays to Landlord a buyout amount equal to the aggregate of (i) the
unamortized balance of Landlord's Transaction Costs, and (ii) an amount equal
to two (2) months Base Rent and Additional Rent in effect as of the Early
Termination Date (the aggregate of the foregoing items (i) and (ii) is
referred to herein as the "Early Termination Payment"), which Early
Termination Payment shall be paid in full on or before the Early Termination
Date (provided that the Additional Rent component of such payment shall be
based upon Landlord's estimate and subject to adjustment when such amount is
finally determined), and (c) no Event of Default exists both as of the date of
the Early Termination Notice and as of the Early Termination Date. In the
event of any such early termination, Tenant shall remain liable for any
obligations or expenses arising or accruing hereunder prior to the Early
Termination Date.
2.3 INTENTIONALLY OMITTED.
2.4 COMMENCEMENT DATE.
2.4.1 Landlord shall complete the Tenant Improvements in accordance
with the Plans and Specifications. Landlord's completion of the Tenant
Improvements shall be performed by Landlord's contractors, and the Tenant
Improvement Allowance shall be applied against the cost thereof as provided in
paragraph 2.5 hereof. Landlord shall notify Tenant in writing of Substantial
Completion. If Tenant believes that Substantial Completion has not occurred,
Tenant shall notify Landlord in writing of its objections within five (5)
Business Days after its receipt of the Landlord's notice described in the
preceding sentence. Landlord shall have a reasonable time after its receipt of
Tenant's notice in which to take such action as may be necessary to achieve
Substantial Completion, and shall notify Tenant in writing when such has been
achieved. Taking of possession by Tenant shall establish the Commencement Date
as specified in the definition of that term even if Tenant disputes whether
Substantial Completion has occurred or attempts to condition or qualify the
taking of possession. Taking of possession shall further establish that the
Premises are in good and satisfactory condition on the Commencement Date and,
except as expressly provided below with respect to latent defects in the
Tenant Improvements, any alleged defects or deficiencies are waived by the
Tenant except for any incomplete Punch List Work. Tenant shall notify the
Landlord in writing within three (3) months after Substantial Completion of
the existence of any latent defects pertaining to the Tenant Improvements. If
Tenant fails to notify the Landlord of any latent defects pertaining to the
Tenant Improvements within such period, Tenant shall be deemed to have waived
any rights on account thereof. Tenant acknowledges that no representations as
to the condition of the Premises have been made by Landlord, unless such are
expressly set forth in this Lease. With the exception of the Tenant
Improvements to be made by Landlord, Tenant acknowledges that the Premises
shall be delivered AS IS and that no representations as to the condition of
the Premises have been made by Landlord. In the event of any dispute as to
5
whether Substantial Completion has occurred, the receipt of a temporary
certificate of occupancy shall be conclusive unless a temporary certificate of
occupancy is unavailable or delayed due to causes which are Tenant's
responsibility. If on the Commencement Date, Punch List Work remains to be
completed, Landlord and Tenant shall agree on such Punch List Work prior to
occupancy by Tenant and Landlord will promptly complete it after the
Commencement Date. In no event shall Tenant's refusal or failure to agree on
the nature and extent of Punch List Work or the existence of items of Punch
List Work delay or postpone the occurrence of the Commencement Date. Tenant
shall make no changes to the Plans and Specifications or the work reflected in
the Plans and Specifications without the consent of Landlord, which consent
shall not be unreasonably withheld.
2.4.2 Tenant shall be permitted entry into the Premises before
Substantial Completion for the limited purpose of installing such wiring and
cabling in the Premises as are approved by Landlord in accordance with the
paragraph entitled "Tenant Alterations". Approved wiring and cabling will be
in addition to the Tenant Improvements and shall be governed by the paragraphs
entitled "Tenant Alterations" and "Tenants Work Performance." Tenant, its
contractors and designees may enter into the Premises for the purposes
described in this subparagraph twenty-eight (28) days in advance of the
scheduled date for Substantial Completion, but any such entry shall be at the
Tenant's risk and subject to all the terms of the Lease, except the obligation
to pay Base Rent. If installation and work performed during the period of
Tenant's early entry delay Substantial Completion or interfere with or damage
the Landlord's work, Tenant shall be responsible for the damage caused
Landlord. Further, any such delay in Substantial Completion shall be deemed
"Tenant Delay" and the Commencement Date shall be deemed to have occurred on
the date that Substantial Completion would have been achieved absent such
Tenant Delay.
2.4.3 Notwithstanding anything to the contrary contained herein, in
the event that Landlord has not achieved Substantial Completion of the Tenant
Improvements within one hundred twenty (120) days after the date of this Lease
(subject to extension for Tenant Delay and for events of force majeure as
provided in Paragraph 6.8), then Tenant shall have the right to cancel this
Lease upon not less than fifteen (15) days written notice given to the
Landlord prior to the date that the Landlord has achieved Substantial
Completion, provided such cancellation shall be void and this Lease shall
continue in full force and effect in the event that the Landlord achieves
Substantial Completion within such fifteen (15) day period.
2.5 TENANT'S CONTRIBUTION TO TENANT IMPROVEMENT COSTS.
2.5.1 Tenant shall be responsible for all costs to prepare the
Premises for Tenant's occupancy, including all hard and soft costs, such as
and without limitation, labor and materials, architectural, engineering,
permitting and space planning fees (collectively, the "Tenant Improvement
Costs"). Tenant further agrees to pay the Landlord a construction management
fee (the "Construction Management Fee") equal to three percent (3%) of the
Tenant Improvement Costs. The Tenant Improvement Allowance shall be applied
against the Tenant Improvement Costs and the Construction Management Fee.
Tenant shall not be entitled to receive any credit or payment on account of
any unexpended portion of the Tenant Improvement Allowance. If the cost of the
Tenant Improvements and Construction Management Fee exceeds the Tenant
Improvement Allowance, Tenant shall pay to Landlord such excess within ten
(10) Business Days after demand made from time to time by Landlord or Tenant
may elect, upon written notice given to Landlord not later than the time
payment of such excess would otherwise be due, to amortize an amount of such
excess which is hereinafter defined as "Construction Principal" by paying to
Landlord monthly installments of "Construction Rent" (as defined below). If
Tenant fails to pay to Landlord the cost of any such excess Tenant
Improvements and Construction Management Fee as and when due, Landlord may
elect to suspend work on the Tenant Improvements pending such timely payment,
and the Commencement Date shall be deemed to have occurred on the date that
Substantial Completion would have been achieved absent such suspension of
work.
Notwithstanding anything to the contrary herein contained, in no
event shall the aggregate amount of the "Construction Principal" exceed
Twenty-Five Thousand Dollars ($25,000.00). Commencing on the first day of the
fifth full month of the Lease Term, Tenant shall pay Landlord, as additional
rent, monthly at the times and in the manner provided for the payment of Base
Rent, an amount ("Construction Rent') equal to the monthly principal and
interest payment which would be required to amortize a loan in the principal
amount of the Construction Principal on a monthly direct reduction basis over
a period of thirty-six (36) months at an interest rate of eight percent (8%)
per annum (based upon a 360 day year). All payments of Construction Rent shall
be applied first to accrued and unpaid interest on the Construction
6
Principal and then to the outstanding principal balance thereof. Interest
shall begin to accrue on the Construction Principal on the date Landlord pays
such amount toward the cost of the Tenant Improvements. In any event, the
entire outstanding balance of the Construction Principal plus all accrued and
unpaid interest thereon shall be due and payable in full on the first day of
the fortieth (40th) full month of the Lease Term. Tenant acknowledges and
agrees that the payment of Construction Rent by Tenant represents a
reimbursement to Landlord of additional costs and expenses Landlord will incur
in connection with the preparation of the Premises for Tenant's occupancy.
Therefore, if Tenant shall default upon any obligation on its part to be
performed or observed under the Lease (including, without limitation, the
obligation to pay Construction Rent) or if the Lease Term shall be terminated
prior to first day of the fortieth (40th) full month of the Lease Term for any
reason whatsoever other than a termination by Landlord pursuant to Paragraph
4.9 as a result of a casualty, then the entire unpaid amount of the
Construction Principal and all accrued and unpaid interest thereon shall
become immediately due and payable on demand by Landlord. Landlord's right to
demand said entire amount of Construction Principal shall be in addition to
all other rights and remedies which Landlord shall have by reason of any
default by Tenant under the Lease, and Tenant shall not be entitled to any
credit or reduction in said Construction Principal based upon the amounts
collected by Landlord from reletting of the Premises after default by Tenant.
Notwithstanding anything to the contrary herein contained, in no event and
under no circumstances shall there be any abatement of any Construction Rent
under the Lease. If this Lease is terminated by Landlord pursuant to Paragraph
4.9 as a result of a casualty, Tenant shall remain liable for all Construction
Rent due and payable through the effective date of termination plus all
accrued and unpaid interest on the Construction Principal through such date of
termination, but in such case Tenant shall have no obligation to pay the
unpaid balance of the Construction Principal remaining after payment of all
Construction Rent through the effective date of termination. No decision of
Tenant not to exercise its early termination right pursuant to Paragraph 2.2.3
hereof or any extension of the Lease Term or renewal of the Lease shall cause
extension of the term of repayment of the Construction Principal.
2.5.2 All Tenant Improvements, regardless of which party constructed
or paid for them, shall become the property of Landlord and shall remain upon
and be surrendered with the Premises upon the expiration or earlier
termination of this Lease; provided that, if Landlord approves any change
order(s) to the Plans and Specifications, then at Landlord's election and upon
notice to Tenant, Tenant shall be required to remove all or any portion of the
Tenant Improvements (including Telecommunication Facilities) included in or
affected by such change order(s) upon the expiration or earlier termination of
this Lease. Notwithstanding the foregoing, if Tenant's submission of any
change order to Landlord for approval is accompanied by a written request that
Landlord identify any Tenant Improvements included in or affected by such
change order that Landlord may require Tenant to remove upon the expiration or
earlier termination of the Lease, Landlord shall identify such Tenant
Improvements (if any) by notice to Tenant given at the time of Landlord's
approval of the change order.
2.6 LEASE MEMORANDUM.
2.6.1 Contemporaneously with Substantial Completion, Landlord shall
prepare and submit to the Tenant a Lease Memorandum in the form of Exhibit D,
completed in good faith by Landlord, and executed by Landlord. The information
inserted on the Lease Memorandum shall be controlling and conclusive and shall
prevail over any inconsistent provision in this Lease on (a) the mutual
execution of the Lease Memorandum by Landlord and Tenant or (b) the lapse of
fourteen (14) days following delivery of the Lease Memorandum to Tenant
without Tenant delivering to Landlord a written objection to all or part of
the information in the Lease Memorandum. If Tenant does object in good faith
to any information set forth in the Lease Memorandum, it shall execute the
Lease Memorandum subject to its specifically-stated, written objections.
Tenant must explain the reasons for its objections in reasonable detail. That
portion of the Lease Memorandum to which no objection was made shall be
conclusive and controlling. Pending resolution of any dispute by agreement or
a final determination by a court of competent jurisdiction in accordance with
this Lease, Landlord's information as inserted in the Lease Memorandum shall
be utilized subject to any later adjustment agreed or found to be appropriate.
Tenant's refusal or failure to execute a Lease Memorandum shall neither
prevent nor delay the occurrence of the Commencement Date. In no event shall
the Lease Memorandum be recorded.
2.6.2 The parties agree not to place this Lease of record but each
party shall, at the request of the other, execute and acknowledge so that the
same may be recorded a notice of lease complying with applicable law ("Notice
of Lease"), indicating the Lease Term, but omitting rent and other terms, and
place in escrow a termination of such Notice of Lease (if Tenant fails to
execute and deliver
7
such termination of Notice of Lease, Landlord is hereby authorized to execute
such document on behalf of Tenant as Tenant's duly authorized irrevocable
agent and attorney-in-fact); provided, however, that the failure to record
said Notice of Lease shall not affect or impair the validity and effectiveness
of this Lease. Tenant shall pay all costs, taxes, fees and other expenses in
connection with or prerequisite to recording the Notice of Lease and
discharging same from record.
2.7 USE AND CONDUCT OF BUSINESS.
2.7.1 The Premises are to be used only for the Permitted Uses, and
for no other business or purpose without the prior consent of Landlord.
Landlord makes no representation or warranty as to the suitability of the
Premises or the Furniture for Tenant's intended use. Tenant shall, at its own
cost and expense, obtain and maintain any and all licenses, permits, and
approvals necessary or appropriate for its use, occupation and operation of
the Premises for the Permitted Uses. Tenant's inability to obtain or maintain
any such license, permit or approval necessary or appropriate for its use,
occupation or operation of the Premises shall not relieve it of its
obligations under this Lease, including the obligation to pay Base Rent and
Additional Rent.
2.7.2 No act shall be done in or about the Premises that is unlawful
or that will increase the existing rate of insurance on any or all of the Land
or Building. Tenant shall not commit or allow to be committed or exist: (a)
any waste upon the Premises, (b) any public or private nuisance, or (c) any
act or condition which disturbs the quiet enjoyment of any other tenant in the
Building, violates any of Landlord's contracts affecting any or all of the
Land or Building (provided Tenant has knowledge of such contracts), creates or
contributes to any work stoppage, strike, picketing, labor disruption or
dispute, interferes in any material way with the business of Landlord or any
other tenant in the Building or with the rights or privileges of any
contractors, subcontractors, licensees, agents, concessionaires, subtenants,
servants, employees, customers, guests, invitees or visitors or any other
persons lawfully in and upon the Land or Building, or causes any impairment or
reduction of the good will or reputation of the Land or Building.
2.7.3 Tenant shall not, without the prior consent of Landlord, use
any apparatus, machinery, device or equipment in or about the Premises which
will cause any substantial noise or vibration or any increase in the normal
consumption level of electric power. If any of Tenant's apparatus, machinery,
devices or equipment should disturb the quiet enjoyment of any other tenant in
the Building, then Tenant shall provide, at its sole cost and expense,
adequate insulation or take other such action, including removing such
apparatus, machinery, devices or equipment, as may be necessary to eliminate
the disturbance. No food or beverage dispensing machines shall be installed by
Tenant in the Premises without the prior written consent of Landlord.
2.8 COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS AND RULES AND REGULATIONS.
Tenant shall comply with all Governmental Requirements and Restrictions relating
to its use, occupancy and operation of the Premises and shall observe such
reasonable rules and regulations as may be adopted and published by Landlord
from time to time for the safety, care and cleanliness of the Premises and the
Building, and for the preservation of good order in the Building and for the
administration and management of the Building. Current Rules and Regulations
are attached to this Lease as Exhibit E. To the best of Landlord's actual
knowledge, the Restrictions do not prohibit use of the Premises for general
office purposes. Notwithstanding the foregoing, Tenant shall not be
responsible for compliance with any Governmental Requirements (except for
Tenant's Pro Rata Share of Operating Expenses) requiring structural repairs or
modifications to the Building unless any of such repairs or modifications are
required (a) due to Tenant's work, alterations, or repairs in the Premises or
Tenant's particular manner of use of the Premises, or (b) due to the act or
negligence of any of the Tenant or Tenant's Agents. Except for any repairs or
modifications required (x) due to Tenant's work, alterations, or repairs in
the Premises or Tenant's particular manner of use of the Premises, or (y) due
to the act or negligence of any of the Tenant or Tenant's Agents, Landlord
shall be responsible for maintaining the structural elements of the Building.
8
SECTION 3: BASE RENT, ADDITIONAL RENT AND OTHER SUMS PAYABLE UNDER LEASE
------------------------------------------------------------------------
3.1 PAYMENT OF RENTAL. Tenant agrees to pay Base Rent, Additional Rent and
any other sum due under this Lease to Landlord without demand, deduction,
credit, adjustment or offset of any kind or nature, in lawful money of the
United States when due under this Lease, at the offices of Manager at Manager's
Address, or to such other party or at such other place as Landlord may from
time to time designate in writing.
3.2 BASE RENT. On execution of this Lease, Tenant shall pay to Landlord the
amount specified in the definition of Prepaid Rent for the month specified in
the definition of that term. Tenant agrees to pay the monthly installments of
Base Rent to Landlord, without demand and in advance, on or before the first
day of each calendar month of the Lease Term. The monthly Base Rent
installment for any partial month at the beginning or end of the Lease Term
shall be prorated. Base Rent for any partial month at the beginning of the
Lease Term shall be paid by Tenant on the Commencement Date.
3.3 LEASE SECURITY PROVISIONS.
3.3.1 On execution of this Lease, as security for the full and
faithful payment of all sums due under this Lease and the full and faithful
performance of every covenant and condition of this Lease to be performed by
Tenant, Tenant shall deliver a letter of credit in the amount of Forty
Thousand Eight Hundred One and 74/100 Dollars ($40,801.74) in favor of
Landlord. The letter of credit initially delivered pursuant to this paragraph
and all substitutions, replacements and renewals of it, must be consistent
with and shall satisfy all the requirements in the letter of credit criteria
set forth on Exhibit F hereto. The term "Letter of Credit" shall mean and
refer to a letter of credit conforming to this subparagraph. If a Letter of
Credit has not been delivered to and accepted by Landlord on or before the
full execution of this Lease, at Landlord's election, the failure to deliver
such Letter of Credit may be treated by Landlord (a) as a condition subsequent
to the effectiveness of this Lease such that this Lease shall be voidable by
Landlord by notice to Tenant at any time prior to Landlord's receipt of the
Letter of Credit or (b) as Tenant Delay and an Event of Default. If Landlord
elects to treat the failure to deliver the Letter of Credit on execution of
this Lease as an Event of Default, Landlord may pursue all available rights
and remedies, including the right to specific performance and the right to
attach assets of Tenant. Pending delivery of the Letter of Credit, Landlord
also may defer contracting for Tenant Improvements and/or suspend work on
same.
3.3.2 Landlord may draw on the Letter of Credit, in whole or in part
at Landlord's election, without advance notice to Tenant at any time or from
time to time on or after (a) the occurrence of any Event of Default, (b) if
Tenant, or anyone in possession of the Leased Premises through Tenant, holds
over without Landlord's prior written consent after the expiration or earlier
termination of this Lease, (c) Landlord is given notice by the issuer of the
Letter of Credit that it is terminating the Letter of Credit, (d) a confirming
bank gives notice to Landlord that it will cease to act in that capacity, (e)
the Letter of Credit expires on a specified date by its terms and is not
renewed or replaced at least forty-five (45) days in advance of its expiration
date or (f) to the extent permitted by law, in the event any bankruptcy,
insolvency, reorganization or any other debtor creditor proceeding is
instituted by or against Tenant.
3.3.3 Landlord may apply any sum drawn on the Letter of Credit to
amounts owing to Landlord under this Lease in such order and priority as
Landlord elects in its absolute discretion. If any of the proceeds drawn on
the Letter of Credit are not applied immediately to sums owing to Landlord
under this Lease, Landlord may retain any such excess proceeds as a cash Lease
Security Deposit for application, at Landlord's election, to future sums owing
to Landlord under this Lease, in such order and priority as Landlord elects in
its absolute discretion. Tenant shall, within fifteen (15) days after
Landlord's demand, restore the amount of the Letter of Credit drawn so that
the Letter of Credit is restored to the original amount of the Letter of
Credit. If Tenant does not restore the Letter of Credit to its original amount
within the required time period, such non-restoration shall be considered an
Event of Default.
3.3.4 Additionally, Landlord's draw and application of all or any
portion of the proceeds of the Letter of Credit shall not impair any other
rights or remedies provided under this Lease or under applicable law and shall
not be construed as a payment of liquidated damages. If Tenant shall have
fully complied with all of the covenants and conditions of this Lease, the
Letter of Credit shall be returned to Tenant or, if Landlord has drawn on the
Letter of Credit, the remaining proceeds of the Letter of Credit which are in
excess of sums due the Landlord shall be repaid to Tenant, without interest,
within thirty (30) Business Days after the expiration or termination of the
Lease Term and delivery of possession of the Leased Premises to Landlord in
accordance with this Lease.
9
3.3.5 On any request by Landlord made during the Lease Term, Tenant
shall cooperate in accomplishing any reasonable modification of the Letter of
Credit requested by Landlord. If the Letter of Credit should be lost,
mutilated, stolen or destroyed, Tenant shall cooperate in obtaining the
issuance of a replacement.
3.3.6 Tenant shall not assign or grant any security interest in the
Letter of Credit and any attempt to do so shall be void and of no effect.
3.3.7 In the event of a sale or transfer of Landlord's estate or
interest in the Land and Building, Landlord shall have the right to transfer
the Letter of Credit to the vendee or the transferee, Tenant shall pay any
transfer fees charged by the issuing bank and Landlord shall thereafter be
considered released by Tenant from all liability for the return of the Letter
of Credit. Tenant shall cooperate in effecting such transfer.
3.3.8 No mortgagee or purchaser of any or all of the Building at any
foreclosure proceeding brought under the provisions of any mortgage shall
(regardless of whether the Lease is at the time in question subordinated to
the lien of any mortgage) be liable to Tenant or any other person for any or
all amounts drawn against the Letter of Credit or any other or additional
lease security deposit or other payment made by Tenant under the provisions of
this Lease), unless Landlord has actually delivered it in cash to such
mortgagee or purchaser, as the case may be.
3.4 ADDITIONAL RENT. Definitions of certain terms used in this paragraph
are set forth in the last subparagraph of this paragraph entitled "Additional
Rent". Tenant agrees to pay to Landlord additional rent as computed in this
paragraph (individually and collectively the "Additional Rent"):
3.4.1 ESTIMATED OPERATING COSTS. Tenant shall pay to Landlord as
Additional Rent one-twelfth (1/12) of the amount, if any, by which the
Estimated Operating Costs Allocable to the Premises exceeds the Base Amount
Allocable to the Premises. This sum shall be paid in advance on or before the
first day of each calendar month of the Lease Term after the Base Year.
Landlord shall furnish Tenant a written statement of Estimated Operating Costs
Allocable to the Premises in advance of the commencement of each Year. If such
written statement is furnished after the commencement of the Year, Tenant
shall also make a retroactive lump-sum payment to Landlord equal to the
monthly payment amount multiplied by the number of months during the Year for
which no payment was paid. Notwithstanding the foregoing, Landlord reserves
the right, from time to time during each Year, to revise the Estimated
Operating Costs Allocable to the Premises and upon notice to Tenant of such
revision, Tenant shall adjust its payment to Landlord under this subparagraph
3.4.1 accordingly.
3.4.2 ACTUAL COSTS. After the close of each Year, Landlord shall
deliver to Tenant a written statement setting forth the Operating Costs
Allocable to the Premises during the preceding Year. If such Operating Costs
Allocable to the Premises for any Year exceed the Estimated Operating Costs
Allocable to the Premises paid by Tenant to Landlord pursuant to subparagraph
3.4.1 for such Year, Tenant shall pay the amount of such excess to Landlord
within twenty (20) Business Days after receipt of such statement by Tenant. If
such statement shows the Operating Costs Allocable to the Premises to be less
than the Estimated Operating Costs Allocable to the Premises paid by Tenant to
Landlord pursuant to subparagraph 3.4.1, then the amount of such overpayment
shall be paid by Landlord to Tenant within twenty (20) Business Days following
the date of such statement or, at Landlord's option, shall be credited towards
the installment(s) of Additional Rent next coming due from Tenant.
3.4.3 DETERMINATION. The determination of Operating Costs Allocable
to the Premises shall be made by Landlord in accordance with the terms hereof.
3.4.4 OPERATING COST AUDIT. Landlord shall maintain records
concerning estimated and actual Operating Costs Allocable to the Premises for
no less than twelve (12) months following the period covered by the statement
or statements furnished Tenant, after which time Landlord may dispose of such
records. Provided that Tenant is not then in default of its obligation to pay
Base Rent, Additional Rent or other payments required to be made by it under
this Lease and provided that Tenant is not otherwise in default under this
Lease, Tenant may, at Tenant's sole cost and expense, cause a Qualified
Person (defined below) to inspect Landlord's records at the location where
such records are maintained by or on behalf of Landlord. Such inspection, if
any, shall be conducted no more than once each Year, during Landlord's normal
business hours within ninety (90) calendar days after receipt of Landlord's
written statement of Operating Costs Allocable to the Premises for the
previous year, upon first furnishing Landlord at least twenty (20) calendar
days prior written notice. Any errors disclosed by the review and certified
to Landlord by the Qualified Person which conducted such review shall be
promptly corrected by Landlord; provided, however, that if Landlord disagrees
with any such claimed errors, Landlord shall have
10
the right to cause another review to be made by an auditor of Landlord's
choice. In the event the results of the review of records (taking into
account, if applicable, the results of any additional review caused by
Landlord) reveal that Tenant has overpaid obligations for a preceding period,
the amount of such overpayment shall be credited against Tenant's subsequent
installment of Base Rent, Additional Rent or other payments due to Landlord
under the Lease. In the event that such results show that Tenant has underpaid
its obligations for a preceding period, the amount of such underpayment shall
be paid by Tenant to Landlord with the next succeeding installment obligation
of Estimated Operating Costs (net of Insurance and Property Taxes) Allocable
to the Premises.
3.4.5 END OF TERM. If this Lease shall terminate on a day other than
the last day of a Year, (a) Landlord shall estimate the Operating Costs
Allocable to the Premises and Property Taxes Allocable to the Premises for
such Year predicated on the most recent reliable information available to
Landlord; (b) the amount determined under clause (a) of this sentence shall be
prorated by multiplying such amount by a fraction, the numerator of which is
the number of days within the Lease Term in such Year and the denominator of
which is 365; (c) the Operating Costs Base Amount Allocable to the Premises
shall be prorated in the manner described in clause (b); (d) the clause (c)
amount (i.e., the prorated Operating Costs Base Amount Allocable to the
Premises) shall be deducted from the clause (b) amount (i.e., the prorated
Operating Costs Allocable to the Premises); (e) if the clause (d) amount
exceeds the Estimated Operating Costs Allocable to the Premises paid by Tenant
for the last Year in the Lease Term, then Tenant shall pay the excess to
Landlord within ten (10) Business Days after Landlord's delivery to Tenant of
a statement for such excess; and (f) if the Estimated Operating Costs
Allocable to the Premises paid by Tenant for the last Year in the Lease Term
exceeds the clause (d) amount, then Landlord shall refund to Tenant the excess
within the ten (10) Business Day period described in clause (e) if Tenant is
not then in default of any of its obligations under this Lease. Landlord's and
Tenant's obligations under this paragraph shall survive the expiration or
other termination of this Lease.
3.4.6 DEFINITIONS. Each underlined term in this subparagraph shall
have the meaning set forth next to that underlined term:
OPERATING COSTS BASE AMOUNT ALLOCABLE TO THE PREMISES: The Operating
Costs Allocable to the Premises for the year beginning January 1,
2004 and ending December 31, 2004 (the "Base Year").
ESTIMATED OPERATING COSTS ALLOCABLE TO THE PREMISES: Landlord's written
estimate of Operating Costs Allocable to the Premises for a Year to
be given by Landlord to Tenant pursuant to subparagraph 3.4.1.
OPERATING COSTS (NET OF PROPERTY TAXES): All expenses paid or
incurred by Landlord for maintaining, operating, owning and repairing
any or all of the Land, Building, Premises, related improvements, and
the personal property used in conjunction with such Land, Building,
Premises and related improvements, except for Property Taxes.
Included are all expenses paid or incurred by Landlord for: (a)
utilities, including electricity, water, gas, sewers, fire sprinkler
charges, refuse collection, Telecommunication Services, cable
television, steam, heat, cooling or any other similar service and
which are not payable directly by tenants in the Building; (b)
supplies; (c) cleaning, painting and janitorial services (including
window washing), landscaping and landscaping maintenance (including
irrigating, trimming, mowing, fertilizing, seeding and replacing
plants), snow removal and other services; (d) security services, if
any; (e) insurance premiums and applicable insurance deductible
payments by Landlord (which deductible shall not exceed Twenty-Five
Thousand Dollars ($25,000,00), except in the case of earthquake
insurance where the deductible shall not exceed Fifty Thousand
Dollars ($50,000.00)); (f) management fees not exceeding prevailing
market rates for comparable first class properties in the greater
Burlington, Massachusetts area (and, for purposes hereof, Tenant
shall have the burden of proving the extent (if any) to which such
fees are in excess of such market rates); (g) compensation (including
employment taxes and fringe benefits) of all persons and business
organizations who perform duties in connection with any service,
repair, maintenance, replacement or improvement or other work
included in this subparagraph; (h) license, permit and inspection
fees; (i) assessments and special assessments due to deed
restrictions, declarations or owners associations or other means of
allocating costs of a larger tract of which the Land is a part; (j)
rental of any machinery or equipment; (k) audit fees and accounting
services related to the Building, and charges for the computation of
the rents and charges payable by tenants in the Building (but only to
the extent the cost of such fees and services are in addition to the
cost of the
11
management fee); (l) the cost of repairs or replacements; (m)
charges under maintenance and service contracts; (n) legal fees
and other expenses of legal or other dispute resolution proceedings,
other than legal fees incurred by Landlord in connection with the
leasing of the Building or the enforcement of tenant leases; (o)
maintenance and repair of the roof and roof membranes, (p) costs
incurred by Landlord for compliance with any and all Governmental
Requirements, including Access Laws, but excluding any cost
attributable to the Building's not being in compliance with such
Governmental Requirements in effect on the date hereof; (q) costs
incurred by Landlord to increase the efficiency of any electrical,
mechanical or other system servicing the Building or the Land; (r)
elevator service and repair, if any; (s) business taxes and license
fees; (t) an appropriate share of the cost of operating, maintaining,
repairing and replacing any common areas and facilities made
available to Tenant which are not located on the Land but are located
within the Park, which common areas and facilities may include,
without limitation, any exercise facility now or hereafter located in
the Park, which costs shall be allocated to all buildings in the Park
on a pro rata basis based upon each such building's total rentable
square footage; (u) an appropriate share of the cost of maintaining
and repairing any monument and/or other signage for the Park, which
costs shall be allocated to all buildings in the Park on a pro rata
basis based upon each such building's total rentable square footage;
(v) any other expense or charge which in accordance with generally
accepted accounting and management principles would be considered an
expense of maintaining, operating, owning or repairing the Building;
and (w) the amortization of costs of capital improvements in
accordance with the next sentence. Costs associated with capital
improvements installed or constructed by Landlord other than in the
initial construction of the Building, whether such were constructed
or installed before or after the Commencement Date, shall be
amortized with interest return at the Prime Rate plus two (2)
percentage points over the estimated useful life of the capital
improvement as determined by Landlord and the annual amortization of
principal and interest attributable to the Lease Term shall be an
Operating Cost. The capital improvements referred to in the previous
sentence shall include: replacement of roof structure and roof
membranes; exterior painting; parking area resurfacing, resealing and
restriping parking areas and driveways and upgrading Building common
systems and facilities (including HVAC systems, and if owned by
Landlord, Telecommunication Facilities), but shall not include the
initial cost of construction of any addition hereafter made to the
Building or the initial cost of construction of any additional
building not currently on the Land.
EXCLUSIONS FROM OPERATING COSTS: Operating Costs shall not include
any of the following: ground rent; interest and amortization of funds
borrowed by Landlord for items other than capital improvements
provided for in the definition of Operating Costs (net of Property
Taxes) or elsewhere in this Lease; leasing commissions and
advertising and space planning expenses incurred in procuring
tenants; and salaries, wages, or other compensation paid to officers
or executives of Landlord in their capacities as officers and
executives; costs incurred by Landlord for repair or restoration in
the case of a casualty or taking to the extent that Landlord is
reimbursed by insurance or condemnation proceeds; costs incurred by
Landlord for repair to the extent that Landlord is reimbursed by a
third party pursuant to any applicable warranty; repair and related
costs, including permit, license and inspection costs incurred with
respect to the installation of improvements made for other tenants or
occupants or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for other tenants
or occupants; and any penalty incurred by Landlord due to Landlord's
violation of any Governmental Requirement, unless such violation is
due to the act or neglect of any third party.
GROSS-UP PROVISION: If less than ninety-five percent (95%) of the net
rentable area of the Building is occupied by tenants at all times
during any Year (including the Base Year), then Operating Costs for
such Year may include all additional costs and expenses that Landlord
reasonably determines would have been incurred had ninety-five
percent (95%) of the Building been occupied at all times during such
Year by tenants.
OPERATING COSTS ALLOCABLE TO THE PREMISES: The product of Tenant's
Pro Rata Share times Operating Costs (net of Property Taxes).
PROPERTY TAX BASE AMOUNT: Tenant's Pro Rata Share of the Property
Taxes payable for the fiscal tax year 2004 (beginning July 1, 2003
and ending June 30, 2004).
PROPERTY TAXES ALLOCABLE TO THE PREMISES: Tenant's Pro Rata Share of
Property Taxes.
12
QUALIFIED PERSON: An accountant or other person experienced in
accounting for income and expenses of industrial projects, who is
engaged solely by Tenant on terms which do not entail any
compensation based or measured in any way upon any savings in
Additional Rent or reduction in Operating Costs Allocable to the
Premises achieved through the inspection process described in this
subparagraph.
3.4.7 PROPERTY TAX ESCALATION. In addition to the payments required
by the previous subparagraphs of this paragraph, Tenant shall pay as
Additional Rent to Landlord one-twelfth (1/12) of the amount, if any, by which
(a) Landlord's estimate of the Property Taxes Allocable to the Premises for
the current tax year exceeds the Property Tax Base Amount. This sum shall be
paid in advance on or before the first day of each calendar month of the Lease
Term. After the close of each tax year during the Lease Term, Landlord shall
deliver to Tenant a written statement setting forth (1) the actual Property
Taxes Allocable to the Premises for the preceding tax year, (2) the difference
between the amount referred to in clause (1) and the Property Tax Base Amount
and (3) the differential between the amount referred to in clause (2) and the
sum of the tentative monthly payments toward such amount made by Tenant. If
the differential referred to in clause (3) of the previous sentence represents
an underpayment by Tenant, such differential shall be paid to Landlord within
twenty (20) Business Days after delivery of Landlord's written statement to
Tenant; if such differential represents an overpayment by Tenant, Landlord
shall, at its option, either credit such overpayment to the installment(s) of
Additional Rent next coming due from Tenant or refund such overpayment to
Tenant within twenty (20) Business Days after Tenant's concurrence in the
amount due as a refund. If the Lease Term begins or ends on a day other than
the beginning or end of a tax year, the amount due as described in clause (2)
of this subparagraph shall be prorated on a per diem basis with reference to
the tax year. The provisions of this subparagraph shall survive the expiration
or other termination of this Lease.
3.4.8 TENANT'S COSTS. Tenant agrees to reimburse or pay Landlord
within twenty (20) Business Days after invoice from Landlord for (a) any
cleaning expenses incurred by Landlord, including carpet cleaning, garbage and
trash removal expenses, over and above the normal cleaning provided by
Landlord, if any, or due to the presence of a lunchroom or kitchen or food or
beverage dispensing machines within the Premises, (b) any expense incurred by
Landlord for usage in the Premises of heating, ventilating and air
conditioning services, elevator services, electricity, water, janitorial
services, or any other services or utilities over and above the normal usage
for the Premises as determined by Landlord in good faith, provided that
Landlord shall use reasonable good faith efforts to charge other tenants of
the Building for their usage of such items above the normal usage for their
respective premises as determined by Landlord in good faith (but only if and
to the extent Landlord has the right to do so under the leases of such
tenant(s)), (c) any expense incurred by Landlord relating to or arising out of
the usage by Tenant or Tenant's Agents of the public or common areas of the
Building or Land, or any of the equipment contained therein, which usage is
over and above the normal usage for such public or common areas or equipment,
and (d) any other direct expense incurred by Landlord on Tenant's behalf.
Landlord reserves the right to install and activate separate metering of
electricity, water or other utilities to the Premises, and Tenant agrees to
reimburse or pay Landlord within twenty (20) Business Days after invoice from
Landlord for all costs of such separate metering, in which case the Operating
Costs Base Amount Allocable to the Premises and Operating Costs shall be
adjusted accordingly.
3.4.9 PAYMENTS DEEMED ADDITIONAL RENT. Any sums payable under this
Lease pursuant to this paragraph or otherwise shall be Additional Rent and, in
the event of nonpayment of such sums, Landlord shall have the same rights and
remedies with respect to such nonpayment as it has with respect to nonpayment
of the Base Rent due under this Lease.
3.5 UTILITIES
3.5.1 Landlord shall have the right from time to time to select the
company or companies providing electricity, gas, fuel, one or more categories
of Telecommunication Services and any other utility services to the Building.
With the exception of water, sewer, electricity and HVAC, Tenant shall
contract directly and pay for all utilities used on or from the Premises
together with any taxes, penalties, surcharges or similar charges relating to
such utilities. If any such service is not separately metered to the Premises
or is not otherwise separately accounted for and billed to Tenant, the cost
therefor shall be an Operating Cost under this Lease, provided that the cost
of electric current for lights and convenience outlets shall be billed by
Landlord to Tenant separately from, and in addition to, Operating Costs.
Landlord estimates that the present cost of electric current for lights and
convenience outlets (exclusive of any other purposes) shall be One Dollar
($1.00) per rentable square foot. Landlord makes no warranty or
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representation that such cost will not increase during the Lease Term due to
increases in electric rates and/or electricity consumption, as the case may be.
3.5.2 Tenant acknowledges that space on the Building rooftop and in
Building risers, equipment rooms and equipment closets is limited. If Tenant
requires Telecommunication Services for the Premises other than from the
provider or providers of Telecommunication Services selected by Landlord and
whose Telecommunication Facilities are installed in or about the Building or
on the rooftop of the Building, provision for alternate or supplemental
Telecommunication Services or Telecommunication Facilities has been made in a
license agreement accompanying and made part of this Lease. Unless otherwise
required by law, neither Tenant, nor a provider of Telecommunication Services
to Tenant, in the future shall be entitled to locate or install
Telecommunication Facilities in, on or about the Building without (a) first
obtaining Landlord's advance, written consent (given in its absolute
discretion) and (b) the advance execution by Landlord and Tenant of a
satisfactory agreement granting a license to Tenant for such purposes and
setting forth the scope, the additional rent, if any, royalties and the other
terms and conditions of that license, and (c) Tenant negotiating and obtaining
the right, if any is required, to bring such Telecommunication Facilities
across public or private property to an approved entry point to the Building.
The agreement referred to in clause (b) of the previous sentence shall be
incorporated in and become part of this Lease. Any future application by
Tenant for permission to locate or install Telecommunication Facilities shall
(1) be in such form and shall be accompanied by such supporting information as
the Landlord may require, (2) be subject to such procedures, regulations and
controls as the Landlord may specify and (3) be accompanied by such payment as
the Landlord may reasonably request to reimburse Landlord for its costs of
evaluating and processing the application and in negotiating and preparing the
agreement described earlier in this subparagraph.
3.5.3 Landlord shall in no case be liable or in any way be
responsible for damages or loss to Tenant arising from the failure of,
diminution of or interruption in electrical power, natural gas, fuel,
Telecommunication Services, sewer, water, or garbage collection services,
other utility service or building service of any kind to the Premises, unless
such interruption in, deprivation of or reduction of any such service was
caused by the negligence or willful misconduct of Landlord, its agents or
contractors or by a failure in facilities, equipment or systems in the
Landlord's ownership. To the extent that Landlord bears any responsibility for
any such interruption, deprivation or reduction in utility or building
services to the Premises, Landlord's responsibility and Tenant's remedy shall
be limited to an abatement in Base Rent for the period beginning with (a) the
day which is five (5) Business Days after the date on which Tenant delivers
notice to Landlord of such interruption, deprivation or reduction and that
Tenant is being deprived of all reasonable use of the Premises and ending on
(b) the date such interruption, deprivation or reduction which is Landlord's
responsibility is not causing Tenant to be deprived of all reasonable use of
the Premises.
3.5.4 HVAC service shall be provided to the Premises Monday through
Friday (excluding holidays) from 8:00 a.m. to 6:00 p.m. and Saturdays
(excluding holidays) from 8:00 a.m. to 12:00 noon. If Tenant shall require
after-hours HVAC, Tenant may request such service by notifying Landlord's
Manager not later than 11:00 a.m. of the day prior to the day on which such
after-hours service shall be needed, and not later than 2:00 p.m. on the
Thursday preceding any weekend for which such after-hours service shall be
needed reasonably estimating the number of hours required for such after-hours
service. Tenant shall pay for such additional HVAC service at Landlord's
hourly rate in effect from time to time (which as of the date hereof is $37.00
per hour April through September and $31.00 per hour October through March)
and shall pay all charges therefor when and as billed by Landlord. Such
charges shall be deemed Additional Rent under the Lease.
3.6 HOLDOVER. Tenant is not authorized to hold over beyond the expiration
or earlier termination of the Lease Term. If Landlord consents to a holdover and
no other agreement is reached between Tenant and Landlord concerning the
duration and terms of the Holdover, Tenant's holdover shall be a
month-to-month tenancy. During such tenancy, Tenant shall pay to Landlord one
hundred fifty percent (150%) of the rate of Base Rent in effect on the
expiration or termination of the Lease Term plus all Additional Rent and other
sums payable under this Lease, and shall be bound by all of the other
covenants and conditions specified in this Lease, so far as applicable. If the
Landlord does not consent to the Tenant's remaining in possession, Landlord
shall have all the rights and remedies provided for by law and this Lease,
including the right to recover consequential damages suffered by Landlord in
the event of Tenant's wrongful refusal to relinquish possession of the
Premises. The Base Rent applicable for the period that
14
Tenant wrongfully remains in possession shall in be increased to one hundred
fifty percent (150%) of the rate of Base Rent in effect on the expiration or
termination of the Lease Term.
3.7 LATE CHARGE: If Tenant fails to make any payment of Base Rent,
Additional Rent or other amount within five (5) Business Days of when due under
this Lease, a late charge is immediately due and payable by Tenant equal to five
percent (5%) of the amount of any such payment. Landlord and Tenant agree that
this charge compensates Landlord for the administrative costs caused by the
delinquency. The parties agree that Landlord's damage would be difficult to
compute and the amount stated in this paragraph represents a reasonable
estimate of such damage. Assessment or payment of the late charge contemplated
in this paragraph shall not excuse or cure any Event of Default or breach by
Tenant under this Lease or impair any other right or remedy provided under
this Lease or under law.
3.8 DEFAULT RATE. Any Base Rent, Additional Rent or other sum payable under
this Lease which is not paid when due shall bear interest at a rate equal to
the lesser of: (a) the published prime or reference rate of Xxxxx Bank N.A.,
or such other national banking institution designated by Landlord if such bank
ceases to publish such rate (the "Prime Rate"), then in effect, plus four (4)
percentage points, or (b) the maximum rate of interest per annum permitted by
applicable law (the "Default Rate"), but the payment of such interest shall
not excuse or cure any Event of Default or breach by Tenant under this Lease
or impair any other right or remedy provided under this Lease or under law.
SECTION 4: MANAGEMENT AND LEASING PROVISIONS
--------------------------------------------
4.1 MAINTENANCE AND REPAIR BY LANDLORD.
4.1.1 Subject to the paragraphs captioned "Damage or Destruction" and
"Condemnation", Landlord shall maintain the public and common areas of the
Building in reasonably good order and condition subject to reasonable wear and
tear. Landlord also shall maintain all base building mechanical systems
serving the common areas of the Building and the Premises (but not any
supplementary HVAC or other system exclusively serving the Premises as
provided in Paragraph 4.2.2 hereof) in reasonably good order and condition,
subject to reasonable wear and tear. Landlord shall make such repairs thereto
as become necessary after obtaining actual knowledge of the need for such
repairs. Upon request by Tenant, Landlord also shall be responsible for light
bulb replacement in the Premises. All repair costs shall be included in
Operating Costs, except for (a) damage occasioned by the act or omission of
Tenant or Tenant's Agents, which shall be paid for entirely by Tenant upon
demand by Landlord, (b) damage occasioned by the act or omission of Landlord
or Landlord's Agents, which shall be paid for entirely by Landlord, (c) any
property damage definitively proven to have been caused by the negligence or
willful misconduct of other tenants of the Building, which shall be charged to
such other tenants, and (d)replacement of bulbs in non-standard building
lighting fixtures, which shall be paid for entirely by Tenant upon demand by
Landlord. In the event any or all of the Building becomes in need of
maintenance or repair which Landlord is required to make under this Lease,
Tenant shall immediately give written notice to Landlord, and Landlord shall
not be obligated in any way to commence such maintenance or repairs until a
reasonable time elapses after Landlord's receipt of such notice.
4.1.2 Landlord shall not be liable by reason of any injury to or
interference with Tenant/s business arising from the making of any repairs,
alterations, additions or improvements in or to the Premises or the Building
or to any appurtenances or equipment therein; provided however, that Landlord
agrees to use reasonable efforts to minimize any interference with Tenant's
business. The foregoing shall not require Landlord to pay overtime rates to
make any such repairs, alterations, additions or improvements. There shall be
no abatement of rent because of such repairs, alterations, additions or
improvements or because of any delay by Landlord in making the same.
4.1.3 Landlord shall have no obligation to maintain or repair the
Furniture.
4.2 MAINTENANCE AND REPAIR BY TENANT.
4.2.1 Except as is expressly set forth as Landlord's responsibility
pursuant to the paragraph captioned "Maintenance and Repair by Landlord,"
Tenant shall at Tenant's sole cost and expense keep, clean and maintain the
Premises in good condition and repair, subject to reasonable wear and tear,
including interior painting, plumbing and utility fixtures and installations,
carpets and floor coverings, all interior wall surfaces and coverings
(including tile and paneling), interior window replacement (if any), exterior
and interior doors, roof penetrations and membranes in connection with any
Tenant installations on the roof, and interior preventative maintenance. Tenant
also shall at Tenant's sole cost and expense keep clean and maintain the
Furniture in good order and condition, subject to reasonable wear and tear.
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If Tenant fails to maintain or repair the Premises and/or the Furniture
in accordance with this paragraph, then Landlord may, but shall not be
required to, enter the Premises upon two (2) Business Days prior written
notice to Tenant (or immediately without any notice in the case of an
emergency) to perform such maintenance or repair at Tenant's sole cost and
expense. Tenant shall pay to Landlord the cost of such maintenance or repair
plus a ten percent (10%) administration fee within ten (10) Business Days of
written demand from Landlord.
4.2.2 Without limiting the generality of paragraph 4.2.1 hereof,
Tenant shall be responsible at Tenant's sole cost and expense for the
maintenance, repair and/or replacement of any special heating, ventilating,
air conditioning, plumbing, electrical or other systems and fixtures installed
solely to service the Premises, whether installed or paid for by Landlord or
Tenant and including, without limitation, any supplemental heating,
ventilating, air conditioning equipment included in the Tenant Improvements.
4.3 COMMON AREAS/SECURITY.
4.3.1 The common areas of the Building shall be subject to Landlord's
sole management and control. Without limiting the generality of the
immediately preceding sentence, Landlord reserves the exclusive right as it
deems necessary or desirable to install, construct, remove, maintain and
operate lighting systems, facilities, improvements, equipment,
Telecommunication Facilities and signs on, in or to all parts of the common
areas; change the number, size, height, layout, or locations of walks,
driveways and truckways or parking areas now or later forming a part of the
Land or Building; make alterations or additions to the Building or common
area; close temporarily all or any portion of the common areas to make
repairs, changes or to avoid public dedication; grant easements to which the
Land will be subject; replat, subdivide, or make other changes to the Land;
place or relocate or cause to be placed or located utility lines and
Telecommunication Facilities through, over or under the Land and Building; and
use or permit the use of all or any portion of the roof of the Building.
Landlord reserves the right to relocate parking areas and driveways (if any)
and to build additional improvements in the common areas. Notwithstanding
anything to the contrary herein, except in the case of an emergency, Landlord
shall not undertake any action which would materially adversely affect
Tenant's access to the Premises or materially interfere with or reduce
Tenant's parking.
4.3.2 Landlord has no duty or obligation to provide any security
services in, on or around the Premises, Land or Building, and Tenant
recognizes that security services, if any, provided by Landlord will be for
the sole benefit of Landlord and the protection of Landlord's property and
under no circumstances shall Landlord be responsible for, and Tenant waives
any rights with respect to, Landlord providing security or other protection
for Tenant or Tenant's Agents or property in, on or about the Premises, Land
or Building. Subject to Landlord's prior approval, Tenant may, at its sole
cost and expense, install, establish and maintain security services within the
Premises; provided that, such security services (including any apparatus,
facilities, equipment or people utilized in connection with the provision of
such security services) comply with the Governmental Requirements and shall
not cause the Building to be out of compliance with the Governmental
Requirements. Notwithstanding the foregoing, any such security services
installed, established or maintained by Tenant must not affect or impact any
portion of the Building or the Land other than the Premises and shall not in
any way limit or interfere with Landlord's ability to exercise its rights as
provided in the paragraph captioned "Access". Tenant's rights under this
subparagraph are subject to all the obligations, limitations and requirements
as set forth in the paragraphs captioned "Tenant Alterations" and "Tenant's
Work Performance".
4.4 TENANT ALTERATIONS. Tenant shall not make any alterations, additions or
improvements in or to the Premises, or make changes to locks on doors, or add,
disturb or in any way change any floor covering, wall covering, fixtures,
plumbing, wiring or Telecommunication Facilities (individually and collectively
"Tenant Alterations"), without first obtaining the consent of Landlord, which
consent shall not be unreasonably withheld, conditioned or delayed provided
such alterations, additions or improvements are entirely within the Premises
and do not impact any structural components of the Building or any building
systems. Tenant shall deliver to Landlord full and complete plans and
specifications for any proposed Tenant Alterations and, if consent by Landlord
is given, all such work shall be performed at Tenant's expense by Landlord or
by Tenant at Landlord's election. If Landlord elects to perform such work,
Tenant shall have the right to approve the price of any construction contract
for such Alteration. Tenant shall pay to Landlord all costs incurred by
Landlord for any architecture, engineering, supervisory and/or legal services
in connection with any Tenant Alterations, including, without limitation,
Landlord's review of the Plans and Specifications. Without limiting the
generality of the foregoing, Landlord may require Tenant (if Landlord has
elected to require Tenant to perform the Tenant Alterations), at Tenant's
16
sole cost and expense, to obtain and provide Landlord with proof of
insurance coverage and a payment and performance bond, in forms, amounts and
by companies acceptable to Landlord. Should Tenant make any alterations
without Landlord's prior written consent, or without satisfaction of any
conditions established by Landlord, Landlord shall have the right, in addition
to and without limitation of any right or remedy Landlord may have under this
Lease, at law or in equity, to require Tenant to remove some or all of Tenant
Alterations, or at Landlord's election, Landlord may remove such Tenant
Alterations and restore the Premises at Tenant's expense. Nothing contained in
this paragraph or the paragraph captioned "Tenant's Work Performance" shall be
deemed a waiver of the provisions of the paragraph captioned "Mechanic's
Liens".
4.5 TENANT'S WORK PERFORMANCE. If Landlord elects to require Tenant to
perform the Tenant Alterations, Landlord may, in its absolute discretion,
require that Tenant provide a payment and performance bond to cover the entire
work to be performed, which bond must be in form, amount and by a company
acceptable to Landlord. Notwithstanding the foregoing, Landlord shall not
require Tenant to obtain a payment and performance bond if the aggregate cost
of the Tenant Alterations (including all related Tenant Alterations which may
be part of a larger project or a series of related projects) is less than
Twenty-Five Thousand Dollars ($25,000.00). Any Tenant Alterations to be
performed under this paragraph shall be performed by contractors employed by
Tenant under one or more construction contracts, in form and content approved
in advance in writing by Landlord. Approval shall be subject to Landlord's
discretion and shall include a requirement that the prime contractor and the
respective subcontractors of any tier performing the Tenant Alterations: (a) be
parties to, and bound by, a collective bargaining agreement with a labor
organization affiliated with the Building and Construction Trades Council of
the AFL-CIO applicable to the geographic area in which the Building is located
and to the trade or trades in which the work under the contract is to be
performed and (b) employ only members of such labor organizations to perform
work within their respective jurisdictions. Tenant's contractors, workers and
suppliers shall work in harmony with and not interfere with workers or
contractors of Landlord or other tenants of Landlord. If Tenant's contractors,
workers or suppliers do, in the opinion of Landlord, cause such disharmony or
interference, Landlord's consent to the continuation of such work may be
withdrawn upon written notice to Tenant. All Tenant Alterations shall be (1)
completed in accordance with the plans and specifications approved by Landlord;
(2) completed in accordance with all Governmental Requirements; (3) carried out
promptly in a good and workmanlike manner; (4) of all new materials; and (5)
free of defect in materials and workmanship. Tenant shall pay for all damage to
the Premises, Building and Land caused by Tenant or Tenant's Agents. Tenant
shall indemnify, defend and hold harmless Landlord and Landlord's Agents from
any Claims arising as a result of the Tenant Alterations or any defect in
design, material or workmanship of any Tenant Alterations.
4.6 SURRENDER OF POSSESSION. Tenant shall, at the expiration or earlier
termination of this Lease, surrender and deliver the Premises and the
Furniture to Landlord in as good condition as when received by Tenant from
Landlord or as later improved, reasonable use and wear excepted, and free from
all tenancies or occupancies by any person.
4.7 REMOVAL OF PROPERTY. Unless otherwise agreed to in writing by Landlord,
Tenant agrees that there are and shall be no trade fixtures in the Premises
owned by Tenant. Upon expiration or earlier termination of this Lease, Tenant
may remove its personal property, office supplies and office furniture and
equipment if (a) such items are readily moveable and are not attached to the
Premises; (b) such removal is completed prior to the expiration or earlier
termination of this Lease; (c) Tenant is not in default of any covenant or
condition of this Lease at the time of such removal; and (d) Tenant
immediately repairs all damage caused by or resulting from such removal. All
other property in the Premises and any Tenant Alterations (including,
wall-to-wall carpeting, paneling, wall covering, lighting fixtures and
apparatus or Telecommunication Facilities or any other article affixed to the
floor, walls, ceiling or any other part of the Premises or Building) shall
become the property of Landlord and shall remain upon and be surrendered with
the Premises; provided, however, at Landlord's sole election, Tenant shall be
obligated, at its sole cost and expense, to remove all (or such portion as
Landlord shall designate) of the Tenant Alterations (including
Telecommunication Facilities, but excluding the Tenant Improvements (the
removal of which is governed by Paragraph 2.5.2 hereof)), repair any damages
resulting from such removal and return the Premises to the same condition as
existed prior to such Tenant Alterations. Notwithstanding the foregoing, if
Tenant's submission of its plans and specifications to Landlord for approval
of any Tenant Alterations requiring Landlord's approval is accompanied by a
written request that Landlord identify any Tenant Alterations that Landlord
may require Tenant to remove upon the expiration
17
or earlier termination of this Lease, Landlord shall identify such Tenant
Alterations (if any) by notice to Tenant given at the time of Landlord's
approval of such Tenant Alterations. Tenant waives all rights to any payment
or compensation for such Tenant Alterations (including Telecommunication
Facilities). If Tenant shall fail to remove any of its property from the
Premises, Building or Land at the expiration or earlier termination of this
Lease or when Landlord has the right of re-entry, Landlord may, at its option,
remove and store such property at Tenant's expense without liability for loss
of or damage to such property, such storage to be for the account and at the
expense of Tenant. Tenant shall pay all costs incurred by Landlord within ten
(10) Business Days after demand for such payment. If Tenant fails to pay the
cost of storing any such property, Landlord may, at its option, after it has
been stored for a period of twenty (20) Business Days or more, sell or permit
to be sold, any or all such property at public or private sale (and Landlord
may become a purchaser at such sale), in such manner and at such times and
places as Landlord in its sole discretion may deem proper, without notice to
Tenant, and Landlord shall apply the proceeds of such sale: first, to the cost
and expense of such sale, including reasonable attorney's fees actually
incurred; second, to the payment of the costs or charges for storing any such
property; third, to the payment of any other sums of money which may then be
or later become due Landlord from Tenant under this Lease; and, fourth, the
balance, if any, to Tenant.
4.8 ACCESS. Tenant shall permit Landlord and Landlord's Agents to enter
into the Premises at any time on at least one (1) Business Day's notice (except
in case of emergency in which case no notice shall be required), for the purpose
of inspecting the same or for the purpose of repairing, altering or improving
the Premises or the Building. Nothing contained in this paragraph shall be
deemed to impose any obligation upon Landlord not expressly stated elsewhere
in this Lease. When reasonably necessary, Landlord may temporarily close
Building or Land entrances, Building doors or other facilities, without
liability to Tenant by reason of such closure and without such action by
Landlord being construed as an eviction of Tenant or as relieving Tenant from
the duty of observing or performing any of the provisions of this Lease.
Unless such temporary closure is due to an emergency and/or Governmental
Requirements, if such temporary closure lasts longer than one (1) Business
Day, Tenant shall be provided with reasonable alternative access to the Land
and/or Building (as applicable). Landlord shall have the right to enter the
Premises at any time during the Lease Term that an Event of Default exists and
at any time during the last nine (9) months of the Lease Term for the purpose
of showing the Premises to prospective tenants and to erect on the Premises a
suitable sign indicating the Premises are available. Unless Tenant has
previously vacated the Premises in accordance with Paragraph 4.31 hereof,
Tenant shall give written notice to Landlord at least twenty (20) Business
Days prior to vacating the Premises at the expiration of the Lease Term and
shall arrange to meet with Landlord for a joint inspection of the Premises
prior to vacating. If Tenant has previously vacated the Premises in accordance
with Paragraph 4.31 hereof, Tenant shall nonetheless contact Landlord and
arrange for a joint inspection of the Premises during the last two weeks of
the Lease Term. In the event of Tenant's failure to give such notice or
arrange such joint inspection, Landlord's inspection at or after Tenant's
vacating the Premises shall be conclusively deemed correct for purposes of
determining Tenant's responsibility for repairs and restoration. Landlord
shall not be liable for the consequences of admitting by passkey, or refusing
to admit to the Premises, Tenant or any of Tenant's Agents, or other persons
claiming the right of admittance.
4.9 DAMAGE OR DESTRUCTION.
4.9.1 If the Premises are damaged by fire, earthquake or other
casualty, Tenant shall give immediate written notice thereof to Landlord. If
Landlord estimates that the damage can be repaired in accordance with the
then-existing Governmental Requirements within one hundred-twenty (120)
Business Days after Landlord is notified by Tenant of such damage and if there
are sufficient insurance proceeds available to repair such damage, then
Landlord shall proceed with reasonable diligence to restore the Premises to
substantially the condition which existed prior to the damage and this Lease
shall not terminate. If, in Landlord's estimation, the damage cannot be
repaired within such 120 Business Day period or if there are insufficient
insurance proceeds available to repair such damage, Landlord may elect in its
absolute discretion to either: (a) terminate this Lease or (b) restore the
Premises to substantially the condition which existed prior to the damage and
this Lease will continue. If Landlord restores the Premises under this
paragraph, then Landlord shall use commercially reasonable efforts to proceed
toward completion of the restoration and (1) the Lease Term shall be extended
for the time required to complete such restoration, (2) Tenant shall pay to
Landlord, upon demand, Tenant's Pro Rata Share of any applicable deductible
amount specified under Landlord's insurance, which deductible shall not
18
exceed Twenty-Five Thousand Dollars ($25,000,00) (of which Tenant's Pro Rata
Share as of the date of this Lease would be One Thousand Eight Hundred
Forty-Two and 50/100 Dollars ($1,842.50)), except in the case of earthquake
insurance where the deductible shall not exceed Fifty Thousand Dollars
($50,000.00) (of which Tenant's Pro Rata Share as of the date of this Lease
would be Three Thousand Six Hundred Eighty-Five and 00/100 Dollars
($3,685.00)), and (3) notwithstanding anything to the contrary contained
herein, Landlord shall not be required to repair or restore, Tenant
Alterations (including Telecommunication Facilities), the Furniture or any or
all furniture, fixtures, equipment, inventory, improvements or other property
which was in or about the Premises at the time of the damage and was not owned
by Landlord. In the case of damage to the Premises not caused by the
negligence or other tortuous acts of the Tenant which is of a nature or extent
that (a) such damage materially interferes with Tenant's use of a portion (but
not all) of the Premises (such portion being referred to herein as the
"Materially Affected Premises"), Base Rent and Additional Rent otherwise
payable hereunder shall be partially abated by the amount thereof allocable to
the Materially Affected Premises on a per rentable square foot basis, for the
period beginning on the date of such casualty and ending on the earlier of (i)
the date that Landlord has substantially completed its repairs to the
Materially Affected Premises and (ii) the date that Tenant uses any portion of
the Materially Affected Premises for the conduct of its business, and (b) it
is impracticable for the Tenant to carry on its business in any of the
Premises, all Base Rent and Additional Rent otherwise payable hereunder shall
be abated for the period beginning on the date of such casualty and ending on
the earlier of (i) the date that Landlord has substantially completed its
repairs to the Premises and (ii) the date that Tenant uses any portion of the
Premises for the conduct of its business. Except for the abatement of rent if
and to the extent provided herein, Tenant agrees to look to the provider of
Tenant's insurance for coverage for the loss of Tenant's use of the Premises,
the Furniture and any other related losses or damages incurred by Tenant
during any reconstruction period. Notwithstanding the foregoing, if the
Premises have not been substantially restored to the condition required by
Landlord hereunder (subject to Punch List Work) within one (1) year (which
date shall be extended one day for each day of delay caused by any act or
omission of Tenant and for events of force majeure as contemplated in
Paragraph 6.8 hereof), Tenant shall have the right to cancel this Lease upon
not less than thirty (30) days written notice given to the Landlord (which
notice must be given within ten (10) Business Days after the expiration of
said one (1) year period or such right of cancellation shall be deemed
waived), provided such cancellation shall be void and this Lease shall
continue in full force and effect in the event that the Premises have been
substantially restored to the condition required by Landlord hereunder
(subject to Punch List Work) within such thirty (30) day period.
4.9.2 If the Building is damaged by fire, earthquake or other
casualty and more than fifty percent (50%) of the Building is rendered
untenantable, without regard to whether the Premises are affected by such
damage, Landlord may in its absolute discretion and without limiting any other
options available to Landlord under this Lease or otherwise, elect to
terminate this Lease by notice in writing to Tenant within forty (40) Business
Days after the occurrence of such damage if Landlord is also terminating the
leases of other tenants in the Building who are similarly situated to Tenant.
Such notice shall be effective twenty (20) Business Days after receipt by
Tenant unless a later date is set forth in Landlord's notice.
4.9.3 Notwithstanding anything contained in this Lease to the
contrary, if there is damage to the Premises or Building which would cost more
than One Hundred Thousand Dollars ($100,000.00) to restore or repair and the
holder of any indebtedness secured by a mortgage or deed of trust covering any
such property requires that the insurance proceeds be applied to such
indebtedness or if the insurance proceeds are otherwise inadequate to complete
the repair of the damages to the Premises, the Building or both, then Landlord
shall have the right to terminate this Lease by delivering written notice of
termination to Tenant within fifteen (15) Business Days after Landlord is
notified of such requirement.
4.9.4 Notwithstanding the foregoing, if the Premises or the Building
are wholly or partially damaged or destroyed within the final six (6) months
of the Term, to such an extent that the cost of restoration would exceed fifty
percent (50%) of the replacement cost of the Premises and/or the Building in
its or their entirety at the time such damage or destruction occurs , Landlord
may, at its option, elect to terminate this Lease upon written notice to
Tenant within thirty (30) days following such damage or destruction. Further,
notwithstanding the foregoing, if the Premises are wholly or partially damaged
or destroyed within the final six (6) months of the Lease Term to such an
extent that the cost of restoration would exceed fifty percent (50%) of the
replacement cost of the Premises in its entirety at the time such
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damage or destruction occurs, then Tenant also may terminate this Lease upon
written notice to Landlord within thirty (30) days following such damage or
destruction.
4.10 CONDEMNATION. If all of the Premises, or such portions of
the Building as may be required for the Tenant's reasonable use of the
Premises, are taken by eminent domain or by conveyance in lieu thereof, this
Lease shall automatically terminate as of the date the physical taking occurs,
and all Base Rent, Additional Rent and other sums payable under this Lease
shall be paid to that date. In case of taking of a part of the Premises or a
portion of the Building not required for the Tenant's reasonable use of the
Premises, then this Lease shall continue in full force and effect and the Base
Rent shall be equitably reduced based on the proportion by which the floor
area of the Premises is reduced, such reduction in Base Rent to be effective
as of the date the physical taking occurs. Additional Rent and all other sums
payable under this Lease shall not be abated but Tenant's Pro Rata Share may
be redetermined as equitable under the circumstances. Landlord reserves all
rights to damages or awards for any taking by eminent domain relating to the
Premises, Building, Land and the unexpired term of this Lease. Tenant assigns
to Landlord any right Tenant may have to such damages or award and Tenant
shall make no claim against Landlord for damages for termination of its
leasehold interest or interference with Tenant's business. Tenant shall have
the right, however, to claim and recover from the condemning authority
compensation for any loss to which Tenant may be entitled for Tenant's moving
expenses or other relocation costs; provided that, such expenses or costs may
be claimed only if they are awarded separately in the eminent domain
proceedings and not as a part of the damages recoverable by Landlord.
4.11 PARKING. Tenant shall have the nonexclusive privilege to use parking
spaces on the Land in common with other tenants of Landlord, but only in areas
reasonably designated by Landlord and only on a first-come-first-served basis.
Tenant's parking privileges shall be subject to the rules and regulations
relating to parking reasonably adopted by Landlord from time to time. Landlord
shall have the right to grant designated, reserved parking stalls to other
tenants in the Building. In no event shall the number of parking stalls used
by Tenant and Tenant's Agents exceed the number of stalls allocated to Tenant
in the definition of the Parking Ratio, provided, however, that nothing in
this sentence shall be deemed to alter the first-come-first-served basis of
parking as provided in this paragraph 4.11. Landlord makes no representations
or warranties concerning the availability of parking for Tenant's use at any
time during the Term. Landlord shall have no obligation whatsoever to monitor
or police the use of the parking or other common areas or to maintain the
parking ratio stated in this Lease.
4.12 INDEMNIFICATION.
4.12.1 Tenant shall indemnify, defend and hold harmless Landlord and
Landlord's Agents from and against any and all Claims, arising in whole or in
part out of (a) the possession, use or occupancy of the Premises or the
business conducted in the Premises, (b) any act, omission or negligence of
Tenant or Tenant's Agents, or (c) any breach or default under this Lease by
Tenant.
4.12.2 Landlord shall indemnify, defend and hold harmless Tenant and
Tenant's Agents from and against any and all Claims, arising in whole or in
part our of (a) any act, omission or negligence of Landlord or Landlord's
Agents, or (b) any breach or default under this Lease by Landlord.
4.12.3 Except as specified in subparagraph 4.12.2 above or in the
next sentence, neither Landlord nor Landlord's Agents shall, to the extent
permitted by law, have any liability to Tenant, or to Tenant's Agents, for
(1) any Claims arising out of any cause whatsoever, including repair to any
portion of the Premises; (2) interruption in or interference with the use of
the Premises or any equipment therein; (3) any accident or damage resulting
from any use or operation by Landlord, Tenant or any person or entity of
heating, cooling, electrical, sewerage or plumbing equipment or apparatus or
Telecommunication Facilities; (4) termination of this Lease by reason of
damage to the Premises or Building; (5) fire, robbery, theft, vandalism,
mysterious disappearance or a casualty of any kind or nature; (6) actions of
any other tenant of the Building or of any other person or entity; (7)
inability to furnish any service required of Landlord as specified in this
Lease; or (8) leakage in any part of the Premises or the Building from rain,
ice or snow, or from drains, pipes or plumbing fixtures in the Premises or
the Building. Landlord shall be responsible only for Claims arising from the
items listed in the previous sentence if such items were within Landlord's
reasonable control and Landlord was negligent or acted with willful
misconduct in failing to repair or maintain the Building as required by this
Lease after notice by Tenant as required by the paragraph captioned
"Maintenance and Repair by Landlord"; but in no event shall Landlord's
responsibility extend to any interruption to Tenant's business or any
indirect or consequential losses suffered by Tenant or Tenant's Agents or
extend beyond Landlord's responsibility as set forth in the
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paragraph entitled "Utilities" when that paragraph is applicable. The
obligations of this paragraph shall be subject to the paragraph captioned
"Waiver of Subrogation".
4.13 TENANT INSURANCE.
4.13.1 Tenant shall, throughout the Lease Term, at its own expense,
keep and maintain in full force and effect the following policies, each of
which shall be endorsed as needed to provide that the insurance afforded by
these policies is primary and that all insurance carried by Landlord is
strictly excess and secondary and shall not contribute with Tenant's liability
insurance:
(a) A policy of commercial general liability insurance,
including a contractual liability endorsement covering Tenant's obligations
under the paragraph captioned "Indemnification", insuring against claims of
bodily injury and death or property damage or loss with a combined single
limit at the Commencement Date of this Lease of not less than Two Million
Dollars ($2,000,000.00), which limit, at Landlord's request, shall be
reasonably increased during the Lease Term consistent with industry standards
to reflect both increases in liability exposure arising from inflation as well
as from changing use of the Premises or changing legal liability standards,
which policy shall be payable on an "occurrence" rather than a "claims made"
basis, and which policy names Landlord, Xxxxxxx Associates Real Estate
Counsel, Inc. (Landlord's investment advisor), Xxxxx Bank, NA, as Trustee of
the Multi-Employer Property Trust, a trust organized under 12 C.F.R. Section
9.18 (the beneficiary of the Landlord), Manager and, at Landlord's request,
Landlord's mortgage lender(s) and/or trustee(s), as additional insureds;
(b) A policy of extended property insurance (which is
commonly called "all risk") covering, Tenant Alterations (including
Telecommunication Facilities), the Furniture, and any and all furniture,
fixtures, equipment, inventory, improvements and other property in or about
the Premises which is not owned by Landlord, for one hundred percent (100%) of
the then current replacement cost of such property;
(c) Business interruption insurance in an amount sufficient
to cover costs, damages, lost income, expenses, Base Rent, Additional Rent and
all other sums payable under this Lease, should any or all of the Premises not
be usable for a period of up to twelve (12) months;
(d) A policy or worker's compensation insurance as required
by applicable law and employer's liability insurance with limits of no less
than One Million Dollars ($1,000,000.00); and
(e) A policy of comprehensive automobile liability
insurance, including loading and unloading, and covering owned, non-owned and
hired vehicles, with limits of no less than One Million Dollars
($1,000,000.00) per occurrence.
4.13.2 All insurance policies required under this paragraph shall be
with companies reasonably approved by Landlord and each policy shall provide
that it is not subject to cancellation, lapse or reduction in coverage except
after thirty (30) days' written notice to Landlord. Tenant shall deliver to
Landlord, Xxxxxxx Associates Real Estate Counsel, Inc., the Manager and, at
Landlord's request, any other parties hereunder required to be named as
additional insureds, prior to the Commencement Date and from time to time
thereafter, certificates evidencing the existence and amounts of all such
policies.
4.13.3 If Tenant fails to acquire or maintain any insurance or
provide any certificate required by this paragraph, Landlord may, but shall
not be required to, obtain such insurance or certificates and the costs
associated with obtaining such insurance or certificates shall be payable by
Tenant to Landlord on demand.
4.14 LANDLORD'S INSURANCE. Landlord shall, throughout the Lease Term, keep
and maintain in full force and effect:
4.14.1 A policy of commercial general liability insurance, insuring
against claims of bodily injury and death or property damage or loss with a
combined single limit at the Commencement Date of not less than Five Million
Dollars ($5,000,000.00), which policy shall be payable on an "occurrence"
rather than a "claims made" basis;
4.14.2 A policy of extended property insurance (what is commonly
called "all risk") covering the Building and Landlord's personal property, if
any, located on the Land in the amount of one hundred percent (100%) of the
then current replacement value of such property; and
4.14.3 Landlord may, but shall not be required to, maintain other
types of insurance as Landlord deems appropriate, including but not limited
to, property insurance coverage for earthquakes and floods in such amounts as
Landlord deems appropriate. Such policies may be "blanket" policies which
cover other properties owned by Landlord.
4.15 WAIVER OF SUBROGATION. Notwithstanding anything in this Lease to the
contrary, Landlord and Tenant hereby each waive and release the other from any
and all Claims or any loss or damage that may
21
occur to the Land, Building, Premises, or personal property located therein,
by reason of fire or other casualty regardless of cause or origin, including
the negligence or misconduct of Landlord, Tenant, Landlord's Agents or
Tenant's Agents, but only to the extent of the insurance proceeds paid to such
releasor under its policies of insurance or, if it fails to maintain the
required policies, the insurance proceeds that would have been paid to such
releasor if it had maintained such policies. Each party to this Lease shall
promptly give to its insurance company written notice of the mutual waivers
contained in this subparagraph, and shall cause its insurance policies to be
properly endorsed, if necessary, to prevent the invalidation of any insurance
coverages by reason of the mutual waivers contained in this subparagraph.
4.16 ASSIGNMENT AND SUBLETTING BY TENANT.
4.16.1 Tenant shall not have the right to assign, transfer, mortgage
or encumber this Lease in whole or in part, nor sublet the whole or any part
of the Premises, nor allow the occupancy of all or any part of the Premises by
another, without first obtaining Landlord's written consent, which consent
shall not be unreasonably withheld or delayed. Notwithstanding any permitted
assignment or subletting, Tenant shall at all times remain directly, primarily
and fully responsible and liable for the payment of all sums payable under
this Lease and for compliance with all of its other obligations as tenant
under this Lease. Landlord's acceptance of Base Rent, Additional Rent or any
other sum from any assignee, sublessee, transferee, mortgagee or encumbrance
holder shall not be deemed to be Landlord's approval of any such conveyance.
Upon the occurrence of an Event of Default, if the Premises or any part of the
Premises are then subject to an assignment or subletting, Landlord may, at its
option, collect directly from such assignee or subtenant all rents becoming
due to Tenant under such assignment or sublease and apply such rents against
any sums due to Landlord from Tenant under this Lease. No such collection
shall be construed to constitute a novation or release of Tenant from the
further performance of Tenant's obligations under this Lease. Landlord's right
of direct collection shall be in addition to and not in limitation of any
other rights and remedies provided for in this Lease or at law. Tenant makes
an absolute assignment to Landlord of such assignments and subleases and any
rent, lease security deposits and other sums payable under such assignments
and subleases as collateral to secure the performance of the obligations of
Tenant under this Lease.
4.16.2 In the event Tenant desires to assign this Lease or to sublet
all or any portion of the Premises, Tenant shall give written notice of such
desire to Landlord setting forth the name of the proposed subtenant or
assignee, the proposed term, the nature of the proposed subtenant's or
assignee's business to be conducted on the Premises, the rental rate, and any
other particulars of the proposed subletting or assignment that Landlord may
reasonably request. Without limiting the preceding sentence, Tenant shall also
provide Landlord with: (a) such financial information as Landlord may request
concerning the proposed subtenant or assignee, including recent financial
statements certified as accurate and complete by a certified public accountant
and by the president, managing partner or other appropriate officer of the
proposed subtenant or assignee; (b) proof satisfactory to Landlord that the
proposed subtenant or assignee will immediately occupy and thereafter use the
entire Premises (or any sublet portion of the Premises) for the remainder of
the Lease Term (or for the entire term of the sublease, if shorter) in
compliance with the terms of this Lease; and (c) a copy of the proposed
sublease or assignment or letter of intent. Tenant shall pay to Landlord, upon
Landlord's demand therefor, Landlord's reasonable attorneys' fees incurred in
the review of such documentation and in documenting Landlord's consent.
Receipt of such fees shall not obligate Landlord to approve the proposed
assignment or sublease.
4.16.3 In determining whether to grant or withhold consent to a
proposed assignment or sublease, Landlord may consider, and weigh, any factor
it deems relevant, in its reasonable discretion.
4.16.4 Within fifteen (15) Business Days after Landlord's receipt of
all required information to be supplied by Tenant pursuant to this paragraph,
Landlord shall notify Tenant of Landlord's approval, disapproval or
conditional approval of any proposed assignment or subletting or of Landlord's
election to recapture as described below. Landlord shall have no obligation to
respond unless and until all required information has been submitted. In the
event Landlord approves of any proposed assignment or subletting, Tenant and
the proposed assignee or sublessee shall execute and deliver to Landlord an
assignment (or subletting) and assumption agreement in form and content
satisfactory to Landlord.
4.16.5 Any transfer, assignment or hypothecation of any of the
stock or interest in Tenant, or the assets of Tenant, or any other
transaction, merger, reorganization or event, however constituted which (a)
results in fifty percent (50%), or more of such stock, interest or assets
going into different ownership, or (b) is a subterfuge denying Landlord the
benefits of this paragraph, shall be deemed to be an assignment
22
within the meaning and provisions of this paragraph and shall be subject to
the provisions of this paragraph. Notwithstanding the foregoing, no transfer
of more than fifty percent (50%) of any stock or interest in Tenant shall be
deemed to be an assignment within the meaning and provisions of this
subparagraph 4.16.5 as long as Tenant remains a corporation the outstanding
voting stock of which is publicly traded and listed on a "national securities
exchange" (as defined in the Securities and Exchange Act of 1934).
4.16.6 If Landlord consents to any assignment or sublease and Tenant
receives rent or any other consideration, either initially or over the term of
the assignment or sublease, in excess of the Base Rent and Additional Rent
(or, in the case of a sublease of a portion of the Premises, in excess of the
Base Rent paid by Tenant on a square footage basis under this Lease), Tenant
shall pay to Landlord fifty percent (50%) of such excess, after deduction of
reasonable expenses in making such assignment or sublease including, without
limitation, reasonable legal fees, reasonable costs of preparing the
applicable premises, and reasonable brokerage fees.
4.16.7 Landlord shall have the right to recapture the Premises or the
applicable portion thereof (a "Recapture") by giving written notice of such
Recapture to Tenant within fifteen (15) Business Days after receipt of
Tenant's written request for Landlord's consent to such proposed assignment or
subletting. Tenant shall have no right to retract its request for Landlord's
consent to assign or sublease once such request has been made. Such Recapture
shall terminate this Lease as to the applicable space effective on the
prospective effective date of assignment or subletting, which shall be the
last day of a calendar month and shall not be earlier than forty-five (45)
Business Days after receipt of Tenant's request hereunder. If less than the
entire Premises are recaptured, this Lease shall remain in full force and
effect with respect to that remaining area not recaptured by Landlord. Tenant
shall surrender that portion of the Premises recaptured by Landlord in
accordance with the terms and conditions of this Lease. Notwithstanding the
first sentence of this subparagraph, Landlord shall have no right to Recapture
the Premises or applicable portion thereof if Tenant's proposed assignment or
sublet is to an affiliate or wholly-owned subsidiary or is to a reorganized
entity under which no change in ownership has occurred.
4.16.8 Notwithstanding any contrary provision in the previous
subparagraphs of this paragraph, provided that all amounts due under this
Lease have been paid in full and further provided that no Event of Default
exits, Landlord shall consent to and approve a proposed assignment of this
Lease or subletting of the Premises where the assignment or subletting is to
an affiliate or wholly-owned subsidiary of the Tenant or a reorganized entity
under which no change of ownership has occurred, provided that (a)Tenant has
delivered to Landlord satisfactory evidence of the foregoing, (b) in the case
of an assignment, the assignee assumes all of the liabilities and obligations
of the Tenant under this Lease in a writing in form and substance satisfactory
to Landlord in its reasonable discretion, (c) the proposed assignee or
subtenant will have a tangible net worth immediately following such
transaction certified to Landlord by an independent certified public
accountant equal to or greater than the tangible net worth of Tenant as of the
date of this Lease or the date immediately preceding such transaction
(whichever is greater), as determined in accordance with generally accepted
accounting principles, and (d) Tenant has satisfied the requirements of
Section 4.16.2. hereof. Tenant agrees that Tenant shall remain liable for its
obligations under this Lease, despite any such transfer.
4.16.9 Notwithstanding anything to the contrary in this Lease,
provided that all amounts due under this Lease have been paid in full and
further provided that no Event of Default exists, upon not less than fifteen
(15) Business Days advance written notice to Landlord and satisfaction of the
requirements of Paragraph 4.16.2 hereof, Landlord shall consent to and approve
a proposed assignment of this Lease to be made in conjunction or connection
with any merger, consolidation, corporate reorganization (other than pursuant
to the bankruptcy laws), or the sale of all or substantially all of the assets
of Tenant, provided that the resulting or surviving corporation or transferee
(as applicable) (a) assumes all of the liabilities and obligations of the
Tenant under this Lease in a writing in form and substance satisfactory to
Landlord in its reasonable discretion, and (b) will have a tangible net worth
immediately following such transaction certified to Landlord by an independent
certified public accountant equal to or greater than Thirty Million Dollars
($30,000,000.00), as determined in accordance with generally accepted
accounting principles. Tenant agrees that Tenant shall remain liable for its
obligations under this Lease, despite any such transfer.
4.17 ASSIGNMENT BY LANDLORD. Landlord shall have the right to transfer and
assign, in whole or in part, its rights and obligations under this Lease and in
any and all of the Land or Building. If Landlord sells or transfers any or all
of the Building, including the Premises, Landlord and Landlord's Agents shall,
23
upon consummation of such sale or transfer, be released automatically from any
liability relating to obligations or covenants under this Lease to be
performed or observed after the date of such transfer, and in such event,
Tenant agrees to look solely to Landlord's successor-in-interest with respect
to such liability; provided that, as to the Lease Security Deposit and Prepaid
Rent, Landlord shall not be released from liability therefor unless Landlord
has delivered (by direct transfer or credit against the purchase price) the
Lease Security Deposit or Prepaid Rent to its successor-in-interest.
4.18 ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS. Tenant shall, from time
to time, upon the written request of Landlord, execute, acknowledge and deliver
to Landlord or its designee a written statement stating: (a) the date this
Lease was executed and the date it expires; (b) the date Tenant entered into
occupancy of the Premises; (c) the amount of monthly Base Rent and Additional
Rent and the date to which such Base Rent and Additional Rent have been paid;
and (d) certifying that (1) this Lease is in full force and effect and has not
been assigned, modified, supplemented or amended in any way (or specifying the
date of the agreement so affecting this Lease); (2) Landlord is not in breach
of this Lease (or, if so, a description of each such breach) and that no
event, omission or condition has occurred which would result, with the giving
of notice or the passage of time, in a breach of this Lease by Landlord; (3)
this Lease represents the entire agreement between the parties with respect to
the Premises; (4) all required contributions by Landlord to Tenant on account
of Tenant Improvements have been received; (5) on the date of execution, there
exist no defenses or offsets which the Tenant has against the enforcement of
this Lease by the Landlord; (6) no Base Rent, Additional Rent or other sums
payable under this Lease have been paid in advance except for Base Rent and
Additional Rent for the then current month; (7) no security has been deposited
with Landlord (or, if so, the amount of such security); (8) it is intended
that any Tenant's statement may be relied upon by a prospective purchaser or
mortgagee of Landlord's interest or an assignee of any such mortgagee; and (9)
such other information as may be reasonably requested by Landlord. If Tenant
fails to respond within ten (10) Business Days of its receipt of a written
request by Landlord as provided in this paragraph, such failure shall be an
Event of Default. In addition, Tenant shall, from time to time, upon the
written request of Landlord, deliver to or cause to be delivered to Landlord
or its designee then current financial statements (including a statement of
operations and balance sheet and statement of cash flows) certified as
accurate by a certified public accountant and prepared in conformance with
generally accepted accounting principles for (i) Tenant, (ii) any entity which
owns a controlling interest in Tenant, (iii) any entity the controlling
interest of which is owned by Tenant, (iv) any successor entity to Tenant by
merger or operation of law, and (v) any guarantor of this Lease. Landlord
shall not request such financial statements more than once in any twelve (12)
month period, unless an Event of Default exists or such request is made in
connection with a sale, financing or refinancing contemplated by Landlord. As
long as Tenant remains a publicly traded company listed and in good standing
on a "national securities exchange" (as defined in the Securities and Exchange
Act of 1934) and provided that Tenant has filed all financial information and
reports required to be filed by such exchange and/or applicable Governmental
Requirements, Tenant may satisfy this requirement by providing Landlord with
Tenant's most recent annual report and other financial disclosures filed with
such exchange.
4.19 INTENTIONALLY OMITTED.
4.20 HAZARDOUS SUBSTANCES.
4.20.1 Neither Tenant, any of Tenant's Agents nor any other person
shall store, place, generate, manufacture, refine, handle, or locate on, in,
under or around the Land or Building any Hazardous Substance, except for
storage, handling and use of reasonable quantities and types of cleaning
fluids and office supplies in the Premises in the ordinary course and the
prudent conduct of Tenant's business in the Premises. Tenant agrees that (a)
the storage, handling and use of such permitted Hazardous Substances must at
all times conform to all Governmental Requirements and to applicable fire,
safety and insurance requirements; (b) the types and quantities of permitted
Hazardous Substances which are stored in the Premises must be reasonable and
appropriate to the nature and size of Tenant's operation in the Premises and
reasonable and appropriate for a first-class building of the same or similar
use and in the same market area as the Building; and (c) no Hazardous
Substance shall be spilled or disposed of on, in, under or around the Land
or Building or otherwise discharged from the Premises or any area adjacent
to the Land or Building. In no event will Tenant be permitted to store,
handle or use on, in, under or around the Premises any Hazardous Substance
which will increase the rate of fire or extended coverage insurance on the
Land or Building, unless: (1) such Hazardous Substance and the expected rate
increase have been specifically disclosed in writing to Landlord; (2) Tenant
has agreed in writing to
24
pay any rate increase related to each such Hazardous Substance; and (3)
Landlord has approved in writing each such Hazardous Substance, which approval
shall be subject to Landlord's discretion.
4.20.2 Tenant shall indemnify, defend and hold harmless Landlord and
Landlord's Agents from and against any and all Claims arising out of any
breach of any provision of this paragraph, which expenses shall also include
laboratory testing fees, personal injury claims, clean-up costs and
environmental consultants' fees. Tenant agrees that Landlord may be
irreparably harmed by Tenant's breach of this paragraph and that a specific
performance action may appropriately be brought by Landlord; provided that,
Landlord's election to bring or not bring any such specific performance action
shall in no way limit, waive, impair or hinder Landlord's other remedies
against Tenant.
4.20.3 As of the execution date of this Lease, Tenant represents and
warrants to Landlord that, except as otherwise disclosed by Tenant to
Landlord, Tenant has no intent to bring any Hazardous Substances on, in or
under the Premises except for the type and quantities authorized in the first
paragraph of the paragraph captioned "Hazardous Substances".
4.21 ACCESS LAWS.
4.21.1 Tenant agrees to notify Landlord immediately if Tenant
receives notification or otherwise becomes aware of: (a) any condition or
situation on, in, under or around the Land or Building which may constitute a
violation of any Access Laws or (b) any threatened or actual lien, action or
notice that the Land or Building is not in compliance with any Access Laws. If
Tenant is responsible for such condition, situation, lien, action or notice
under this paragraph, Tenant's notice to Landlord shall include a statement as
to the actions Tenant proposes to take in response to such condition,
situation, lien, action or notice.
4.21.2 Tenant shall not alter or permit any assignee or subtenant or
any other person to alter the Premises in any manner which would violate any
Access Laws or increase Landlord's responsibilities for compliance with Access
Laws, without the prior approval of the Landlord. In connection with any such
approval, Landlord may require a certificate of compliance with Access Laws
from an architect, engineer or other person acceptable to Landlord. Tenant
agrees to pay the reasonable fees incurred by such architect, engineer or
other third party in connection with the issuance of such certificate of
compliance. Landlord's consent to any proposed Tenant Alteration shall (a) not
relieve Tenant of its obligations or indemnities contained in this paragraph
or this Lease or (b) be construed as a warranty that such proposed alteration
complies with any Access Law.
4.21.3 To the best of Landlord's actual knowledge, as of the date of
this Lease the Premises comply with all applicable Access Laws, excluding any
particular requirements applicable on account of disabled employees or
invitees of Tenant in the Premises and any requirements applicable to or
arising from any changes or installations which Tenant may make in or to the
Premises. Except to the extent the previous sentence is incorrect (meaning
Landlord had actual knowledge of non-compliance as of the date of this Lease),
Tenant shall be solely responsible for all costs and expenses relating to or
incurred in connection with: (a) failure of the Premises to comply with the
Access Laws; and (b) bringing the Building and the common areas of the
Building into compliance with Access Laws, if and to the extent such
noncompliance arises out of or relates to: (1) Tenant's use of the Premises,
including the hiring of employees; (2) any Tenant Alterations to the Premises;
or (3) any Tenant Improvements constructed in the Premises at the request of
Tenant, regardless of whether such improvements are constructed prior to or
after the Commencement Date.
4.21.4 Landlord shall be responsible for all costs and expenses
relating to or incurred in connection with bringing the common areas of the
Building into compliance with Access Laws, unless such costs and expenses are
Tenant's responsibility as provided in the preceding subparagraph. Except as
otherwise provided in the definition of Operating Costs, any cost or expense
paid or incurred by Landlord to bring the Premises or common areas of the
Building into compliance with Access Laws which is not Tenant's responsibility
under the preceding subparagraphs shall be amortized over the useful economic
life of the improvements (not to exceed ten (10) years) with interest at the
Prime Rate plus four (4) percentage points compounded daily, and shall be an
Operating Cost for purposes of this Lease. Landlord warrants and represents
that, as of the date of this Lease, the common areas of the Building and the
Land are in compliance with Access Laws.
4.21.5 Tenant agrees to indemnify, defend and hold harmless Landlord
and Landlord's Agents from and against any and all Claims arising out of or
relating to any failure of Tenant or Tenant's Agents to comply with Tenant's
obligations under this paragraph.
4.21.6 The provisions of this paragraph shall supersede any other
provisions in this Lease regarding Access Laws, to the extent inconsistent
with the provisions of any other paragraphs.
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4.22 QUIET ENJOYMENT. Landlord covenants that Tenant, upon paying Base Rent,
Additional Rent and all other sums payable under this Lease and performing all
covenants and conditions required of Tenant under this Lease shall and may
peacefully have, hold and enjoy the Premises without hindrance or molestation
by Landlord or anyone claiming through Landlord, subject to the provisions of
this Lease and any mortgage or underlying lease to which this Lease is
subordinate.
4.23 SIGNS. Tenant shall be permitted to have its entity name listed on the
main directory sign for the Building situated in the main lobby of the
Building. Tenant also shall be permitted to have one (1)entryway sign bearing
Tenant's name next to Tenant's entryway into the Premises. Said sign shall be
installed by Landlord at Tenant's expense and shall be of a size, design and
coloration, and in a location consistent with Landlord's standard tenant
entryway signage for the Building. Tenant shall reimburse Landlord for the
cost of such entryway sign within ten (10) days of receipt of an invoice for
same.
4.24 SUBORDINATION. Tenant subordinates this Lease and all rights of
Tenant under this Lease to any mortgage, deed of trust, ground lease or
vendor's lien, or similar instrument which may from time to time be placed
upon the Premises (and all renewals, modifications, replacements and
extensions of such encumbrances), and each such mortgage, deed of trust,
ground lease or lien or other instrument shall be superior to and prior to
this Lease, provided that, as long as Tenant is not in default hereunder
beyond any applicable cure period (a) Tenant's occupancy of the Premises shall
not be disturbed by the termination of any ground lease or the foreclosure of
any mortgage, and (b) the foreclosure of a mortgage, the termination of any
ground lease, the institution of any suit, action, summary or other proceeding
against the Landlord, or any successor to the Landlord, or any foreclosure
brought by any mortgagee to recover possession of the Premises, shall not, by
operation of law or otherwise, result in the cancellation or termination of
the Lease and Tenant shall not be disturbed in its possession of the Premises
for any reason other than as provided in this Lease. Notwithstanding the
foregoing, the holder or beneficiary of such mortgage, deed of trust, ground
lease, vendor's lien or similar instrument shall have the right to subordinate
or cause to be subordinated any such mortgage, deed of trust, ground lease,
vendor's lien or similar instrument to this Lease or to execute a
non-disturbance agreement in favor of Tenant on the standard form utilized by
such lender or ground lessor. At the request of Landlord, the holder of such
mortgage or deed of trust or any ground lessor, Tenant shall execute,
acknowledge and deliver promptly in recordable form any instrument or
subordination agreement that Landlord or such holder may request, provided
such instrument or subordination agreement is consistent with the terms of
this Paragraph 4.24 (including clauses (a) and (b) of the first sentence of
this paragraph). Tenant further covenants and agrees that if the lender or
ground lessor acquires the Premises as a purchaser at any foreclosure sale or
otherwise, Tenant shall recognize and attorn to such party as landlord under
this Lease, and shall make all payments required hereunder to such new
landlord without deduction or set-off and, upon the request of such purchaser
or other successor, execute, deliver and acknowledge documents confirming such
attornment. Notwithstanding anything herein to the contrary, in no event shall
the lender or ground lessor which acquires the Premises as a purchaser at any
foreclosure sale or otherwise be (i) bound by any payment of Base Rent or
Additional Rent for more than one month in advance, (ii) bound by any
amendment or modification of this Lease made without the consent of the lender
or ground lessor, (iii) liable in any way to Tenant for any act or omission,
neglect or default on the part of the Landlord under this Lease, (iv)
obligated to perform any work or improvements to be done by Landlord in the
Premises, or (v) subject to any counterclaim or setoff which theretofore
accrued to Tenant against Landlord. Tenant waives the provisions of any law or
regulation, now or hereafter in effect, which may give or purport to give
Tenant any right to terminate or otherwise adversely affect this Lease or the
obligations of Tenant hereunder in the event that any such foreclosure or
termination or other proceeding is prosecuted or completed.
4.25 WORKERS COMPENSATION IMMUNITY. If and to the extent that Tenant is
obligated to indemnify, defend or hold harmless Landlord or Landlord's Agents
from any Claims arising from its use of the Premises or any act or failure to
act by Tenant or Tenant's Agents or otherwise, Tenant expressly waives, to and
in favor of Landlord and Landlord's Agents, its statutory workers compensation
act employers immunity relative to any injury to an employee or employees of
Tenant.
4.26 BROKERS. Each party to this Lease shall indemnify, defend and hold
harmless the other party from and against any and all Claims asserted against
such other party by any real estate broker, finder or intermediary relating to
any act of the indemnifying party in connection with this Lease.
4.27 LIMITATION ON RECOURSE. Landlord has executed this Lease by its
authorized representative signing solely in a representative capacity.
Notwithstanding anything contained in this Lease to the
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contrary, Tenant confirms that the covenants of Landlord are made and
intended, not as personal covenants of the Landlord's authorized
representative or trustee, or for the purpose of binding such authorized
representative or trustee personally, but solely in the exercise of the
representative powers conferred upon such authorized representative and
trustee by their principal. Liability with respect to the entry and
performance of this Lease by or on behalf of Landlord, however it may arise,
shall be asserted and enforced only against Landlord's estate and equity
interest in the Building. Neither Landlord nor any of Landlord's Agents shall
have any personal liability in the event of any claim against Landlord arising
out of or in connection with this Lease, the relationship of Landlord and
Tenant or Tenant's use of the Premises. Further, in no event whatsoever shall
any Landlord's Agent have any liability or responsibility whatsoever arising
out of or in connection with this Lease, the relationship of Landlord and
Tenant or Tenant's use of the Premises, provided that the foregoing provisions
of this sentence shall not affect Landlord's liability hereunder or the
limitations on same contained herein. Any and all personal liability, if any,
beyond that which may be asserted under this paragraph, is expressly waived
and released by Tenant and by all persons claiming by, through or under
Tenant.
4.28 MECHANIC'S LIENS AND TENANT'S PERSONAL PROPERTY TAXES.
4.28.1 Tenant shall have no authority, express or implied, to create
or place any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind, the interest of Landlord or Tenant in the Premises or to
charge the rentals payable under this Lease for any Claims in favor of any
person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs. Tenant shall immediately pay or
cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed
on the Premises on which any lien is or can be validly and legally asserted
against its leasehold interest in the Premises and Tenant shall indemnify,
defend and hold harmless Landlord from any and all Claims arising out of any
such asserted Claims. Tenant agrees to give Landlord immediate written notice
of any such Claim.
4.28.2 Tenant shall be liable for all taxes levied or assessed
against the Furniture and all personal property, furniture or fixtures placed
by Tenant in the Premises. If any such taxes for which Tenant is liable are
levied or assessed against Landlord or Landlord's property and Landlord elects
to pay them or if the assessed value of Landlord's property is increased by
inclusion of the Furniture and/or such personal property, furniture or
fixtures and Landlord elects to pay the taxes based on such increase, Tenant
shall reimburse Landlord for the sums so paid by Landlord, upon demand by
Landlord.
4.29 INTENTIONALLY OMITTED.
4.30 NO OFFSET; INDEPENDENT COVENANTS; WAIVER. Rent shall be paid without
notice or demand, and without setoff, counterclaim, defense, abatement,
suspension, deferment, reduction or deduction, except as expressly provided
herein. Tenant waives all rights (i) to any abatement, suspension, deferment,
reduction or deduction of or from Rent, except to the extent otherwise
expressly set forth herein, and (ii) to quit, terminate or surrender this
Lease or the Premises or any part thereof, except as expressly provided
herein. TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE OBLIGATIONS OF TENANT
HEREUNDER SHALL BE SEPARATE AND INDEPENDENT COVENANTS AND AGREEMENTS, THAT
RENT SHALL CONTINUE TO BE PAYABLE IN ALL EVENTS AND THAT THE OBLIGATIONS OF
TENANT HEREUNDER SHALL CONTINUE UNAFFECTED, UNLESS THE REQUIREMENT TO PAY OR
PERFORM THE SAME SHALL HAVE BEEN TERMINATED PURSUANT TO AN EXPRESS PROVISION
OF THIS LEASE. LANDLORD AND TENANT EACH ACKNOWLEDGES AND AGREES THAT THE
INDEPENDENT NATURE OF THE OBLIGATIONS OF TENANT HEREUNDER REPRESENTS FAIR,
REASONABLE, AND ACCEPTED COMMERCIAL PRACTICE WITH RESPECT TO THE TYPE OF
PROPERTY SUBJECT TO THIS LEASE, AND THAT THIS AGREEMENT IS THE PRODUCT OF FREE
AND INFORMED NEGOTIATION DURING WHICH BOTH LANDLORD AND TENANT WERE
REPRESENTED BY COUNSEL SKILLED IN NEGOTIATING AND DRAFTING COMMERCIAL LEASES
IN MASSACHUSETTS, AND THAT THE ACKNOWLEDGEMENTS AND AGREEMENTS CONTAINED
HEREIN ARE MADE WITH FULL KNOWLEDGE OF THE HOLDING IN WESSON X. XXXXX
ENTERPRISES, INC., 437 MASS. 708 (2002). SUCH WAIVER AND ACKNOWLEDGEMENTS BY
TENANT ARE A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
4.31 OCCUPANCY. Prior to the expiration or earlier termination of the Lease
Term, Tenant shall not vacate the Premises without providing Landlord with at
least fifteen (15) Business Days advance notice. Tenant's furnishing of such
notice shall not relieve Tenant of any of its obligations under this Lease.
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Without limiting any of such obligations, Tenant shall inspect the Premises no
less than once each week during the remainder of the Lease Term to ensure that
the Premises are in good order and condition.
SECTION 5: DEFAULT AND REMEDIES
-------------------------------
5.1 EVENTS OF DEFAULT.
5.1.1 The occurrence of any one or more of the following events shall
constitute a material default and breach of this Lease by Tenant ("Event of
Default"):
(a) abandonment of all or any portion of the Premises;
(b) failure by Tenant to make any payment of Base Rent,
Additional Rent or any other sum payable by Tenant under this Lease within
five (5) Business Days after written notice from Landlord that such payment
was not paid when due, provided, however, Landlord need not give any such
notice more than twice in any twelve (12) month period, and any further
failure by Tenant within any such twelve (12) month period to make any payment
of Base Rent, Additional Rent or any other sum payable by Tenant under this
Lease within five (5) Business Days after its due date shall constitute an
immediate Event of Default without any notice from Landlord;
(c) failure by Tenant to observe or perform any covenant or
condition of this Lease, other than the making of payments, where such failure
shall continue for a period of fifteen (15) Business Days after written notice
from Landlord, provided, however, if cure is not reasonably capable of being
completed within such time period, Tenant shall have such additional
reasonable time (not to exceed an additional sixty (60) calendar days) as is
required to cure such default as long as Tenant promptly commences such cure
within said fifteen (15) Business Day period and thereafter diligently pursues
such cure to completion;
(d) the failure of Tenant to surrender possession of the
Premises at the expiration or earlier termination of this Lease in the
condition required by this Lease;
(e) (1) the making by Tenant of any general assignment or
general arrangement for the benefit of creditors; (2) the filing by or against
Tenant of a petition in bankruptcy, including reorganization or arrangement,
unless, in the case of a petition filed against Tenant, unless the same is
dismissed within twenty (20) Business Days; (3) the appointment of a trustee
or receiver to take possession of substantially all of Tenant's assets located
in the Premises or of Tenant's interest in this Lease; (4) any execution,
levy, attachment or other process of law against any property of Tenant or
Tenant's interest in this Lease, unless the same is dismissed within twenty
(20) Business Days; (5) adjudication that Tenant is bankrupt; (6) the making
by Tenant of a transfer in fraud of creditors; or (7) the failure of Tenant to
generally pay its debts as they become due;
(f) any information furnished by or on behalf of Tenant to
Landlord in connection with the entry of this Lease is determined to have been
materially false, misleading or incomplete when made; or
(g) a failure of the Tenant to deliver the Letter of Credit
within the time period specified in the paragraph captioned "Lease Security".
5.1.2 Tenant shall notify Landlord promptly of any Event of Default
or any facts, conditions or events which, with the giving of notice or passage
of time or both, would constitute an Event of Default.
5.1.3 If a petition in bankruptcy is filed by or against Tenant, and
if this Lease is treated as an "unexpired lease" under applicable bankruptcy
law in such proceeding, then Tenant agrees that Tenant shall not attempt nor
cause any trustee to attempt to extend the applicable time period within which
this Lease must be assumed or rejected.
5.2 REMEDIES. If any Event of Default occurs, Landlord may at any time
after such occurrence, with or without notice or demand except as stated in this
paragraph, and without limiting Landlord in the exercise of any right or
remedy at law which Landlord may have by reason of such Event of Default,
exercise the rights and remedies, either singularly or in combination, as are
specified or described in the subparagraphs of this paragraph.
5.2.1 Landlord may terminate this Lease and all rights of Tenant
under this Lease either immediately or at some later date by giving Tenant
written notice that this Lease is terminated. If Landlord so terminates this
Lease, then Landlord may recover from Tenant the sum of:
(a) the unpaid Base Rent, Additional Rent and all other sums
payable under this Lease which have been earned at the time of termination;
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(b) interest at the Default Rate on the unpaid Base Rent,
Additional Rent and all other sums payable under this Lease which have been
earned at the time of termination; plus
(c) the amount by which the unpaid Base Rent, Additional
Rent and all other sums payable under this Lease which would have been earned
after termination until the time of award exceeds the amount of such rental
loss, if any, as Tenant affirmatively proves could have been reasonably
avoided and interest on such excess at the Default Rate; plus
(d) the amount by which the aggregate of the unpaid Base
Rent, Additional Rent and all other sums payable under this Lease for the
balance of the Lease Term after the time of award exceeds the amount of such
rental loss, if any, as Tenant affirmatively proves could be reasonably
avoided, with such difference being discounted to present value at the Prime
Rate at the time of award; plus
(e) any other amount necessary to compensate Landlord for
the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which, in the ordinary course of things, would
be likely to result from such failure, including, leasing commissions, tenant
improvement costs, renovation costs and advertising costs; plus
(f) all such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law.
5.2.2 Landlord shall also have the right, with or without terminating
this Lease, to re-enter the Premises and remove all persons and property from
the Premises. Landlord may cause property so removed from the Premises to be
stored in a public warehouse or elsewhere at the expense and for the account
of Tenant.
5.2.3 [Intentionally Omitted]
5.2.4 If Tenant abandons or surrenders the Premises without
Landlord's consent, or if Landlord re-enters the Premises as provided in
subparagraph 5.2.2 or takes possession of the Premises pursuant to legal
proceedings or through any notice procedure provided by law, then, if Landlord
does not elect to terminate this Lease, Landlord may, from time to time,
without terminating this Lease, either (a) recover all Base Rent, Additional
Rent and all other sums payable under this Lease as they become due or (b)
relet the Premises or any part of the Premises on behalf of Tenant for such
term or terms, at such rent or rents and pursuant to such other provisions as
Landlord, in its sole discretion, may deem advisable, all with the right, at
Tenant's cost, to make alterations and repairs to the Premises and recover any
deficiency from Tenant as set forth in subparagraph 5.2.6.
5.2.5 None of the following remedial actions, singly or in
combination, shall be construed as an election by Landlord to terminate this
Lease unless Landlord has in fact given Tenant written notice that this Lease
is terminated: (a) an act by Landlord to maintain or preserve the Premises;
(b) any efforts by Landlord to relet the Premises; (c) any repairs or
alterations made by Landlord to the Premises; (d) re-entry, repossession or
reletting of the Premises by Landlord pursuant to this paragraph; or (e) the
appointment of a receiver, upon the initiative of Landlord, to protect
Landlord's interest under this Lease. If Landlord takes any of the foregoing
remedial action without terminating this Lease, Landlord may nevertheless at
any time after taking any such remedial action terminate this Lease by written
notice to Tenant.
5.2.6 If Landlord relets the Premises, Landlord shall apply the
revenue from such reletting as follows: first, to the payment of any
indebtedness of Tenant to Landlord other than Base Rent, Additional Rent or
any other sums payable by Tenant under this Lease; second, to the payment of
any cost of reletting (including finders' fees and leasing commissions);
third, to the payment of the cost of any alterations, improvements,
maintenance and repairs to the Premises; and fourth, to the payment of Base
Rent, Additional Rent and other sums due and payable and unpaid under this
Lease. Landlord shall hold and apply the residue, if any, to payment of future
Base Rent, Additional Rent and other sums payable under this Lease as the same
become due, and shall deliver the eventual balance, if any, to Tenant. Should
revenue from letting during any month, after application pursuant to the
foregoing provisions, be less than the sum of the Base Rent, Additional Rent
and other sums payable under this Lease and Landlord's expenditures for the
Premises during such month, Tenant shall be obligated to pay such deficiency
to Landlord as and when such deficiency arises.
5.2.7 Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies provided in this Lease or by law (all
such remedies being cumulative), nor shall pursuit of any remedy provided in
this Lease constitute a forfeiture or waiver of any Base Rent, Additional Rent
or other
29
sum payable under this Lease or of any damages accruing to Landlord by reason
of the violation of any of the covenants or conditions contained in this
Lease.
5.3 RIGHT TO PERFORM. If Tenant shall fail to pay any sum of money, other
than Base Rent or Additional Rent, required to be paid by it under this Lease or
shall fail to perform any other act on its part to be performed under this
Lease, and such failure shall continue for ten (10) Business Days after notice
of such failure by Landlord, or such shorter time if reasonable under the
circumstances, Landlord may, but shall not be obligated to, and without
waiving or releasing Tenant from any obligations of Tenant, make such payment
or perform such other act on Tenant's part to be made or performed as provided
in this Lease. Landlord shall have (in addition to any other right or remedy
of Landlord) the same rights and remedies in the event of the nonpayment of
sums due under this paragraph as in the case of default by Tenant in the
payment of Base Rent.
5.4 LANDLORD'S DEFAULT. Landlord shall not be in default under this Lease
unless Landlord fails to perform obligations required of Landlord within
twenty (20) Business Days after written notice is delivered by Tenant to
Landlord and to the holder of any mortgages or deeds of trust (collectively,
"Lender") covering the Premises whose name and address shall have theretofore
been furnished to Tenant in writing, specifying the obligation which Landlord
has failed to perform; provided, however, that if the nature of Landlord's
obligation is such that more than twenty (20) Business Days are required for
performance, then Landlord shall not be in default if Landlord or Lender
commences performance within such twenty (20) Business Day period and
thereafter diligently prosecutes the same to completion. All obligations of
Landlord hereunder shall be construed as covenants, not conditions. In the
event of any default, breach or violation of Tenant's rights under this Lease
by Landlord, Tenant's exclusive remedy shall be either an action for specific
performance or an action for actual damages. Tenant hereby waives the benefit
of any laws granting it the right to perform Landlord's obligation, a lien
upon the property of Landlord and/or upon Rent due Landlord, or the right to
terminate this Lease or withhold Rent on account of any Landlord default.
SECTION 6: MISCELLANEOUS PROVISIONS
-----------------------------------
6.1 NOTICES. Any notice, request, approval, consent or written
communication required or permitted to be delivered under this Lease shall be:
(a) in writing; (b) transmitted by personal delivery, express or courier
service, United States Postal Service in the manner described below, or
electronic means of transmitting written material; and (c) deemed to be
delivered on the earlier of the date received or four (4) Business Days after
having been deposited in the United States Postal Service, postage prepaid.
Such writings shall be addressed to Landlord or Tenant, as the case may be, at
the respective designated addresses set forth opposite their signatures, or at
such other address(es) as they may, after the execution date of this Lease,
specify by written notice delivered in accordance with this paragraph, with
copies to the persons at the addresses, if any, designated opposite each
party's signature. Those notices which contain a notice of breach or default
or a demand for performance may be sent by any of the methods described in
clause (b) above, but if transmitted by personal delivery or electronic means,
shall also be sent concurrently by certified or registered mail, return
receipt requested.
6.2 ATTORNEY'S FEES AND EXPENSES. In the event either party requires the
services of an attorney in connection with enforcing the terms of this Lease,
or in the event suit is brought for the recovery of Base Rent, Additional Rent
or any other sums payable under this Lease or for the breach of any covenant
or condition of this Lease, or for the restitution of the Premises to Landlord
or the eviction of Tenant during the Lease Term or after the expiration or
earlier termination of this Lease, the non-breaching party shall be entitled
to a reasonable sum for attorney's and paralegal's fees, expenses and court
costs, including those relating to any appeal.
6.3 NO ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord
of an amount less than the Base Rent or Additional Rent or any other sum due and
payable under this Lease shall be deemed to be other than a payment on account
of the Base Rent, Additional Rent or other such sum, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, nor preclude Landlord's right to recover
the balance of any amount payable or Landlord's right to pursue any other
remedy provided in this Lease or at law.
6.4 SUCCESSORS; JOINT AND SEVERAL LIABILITY. Except as provided in the
paragraph captioned "Limitation on Recourse" and subject to the paragraph
captioned "Assignment and Subletting by Landlord", all of the covenants and
conditions contained in this Lease shall apply to and be binding upon
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Landlord and Tenant and their respective heirs, executors, administrators,
successors and assigns. In the event that more than one person, partnership,
company, corporation or other entity is included in the term "Tenant", then
each such person, partnership, company, corporation or other entity shall be
jointly and severally liable for all obligations of Tenant under this Lease.
6.5 CHOICE OF LAW. This Lease shall be construed and governed by the laws
of the state in which the Land is located. Tenant consents to Landlord's choice
of venue for any legal proceeding brought by Landlord or Tenant to enforce the
terms of this Lease.
6.6 NO WAIVER OF REMEDIES. The waiver by Landlord of any covenant or
condition contained in this Lease shall not be deemed to be a waiver of any
subsequent breach of such covenant or condition nor shall any custom or
practice which may develop between the parties in the administration of this
Lease be construed to waive or lessen the rights of Landlord to insist on the
strict performance by Tenant of all of the covenants and conditions of this
Lease. No act or thing done by Landlord or Landlord's Agents during the Lease
Term shall be deemed an acceptance or a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall be valid unless made in
writing and signed by Landlord. The mention in this Lease of any particular
remedy shall not preclude Landlord from any other remedy it might have, either
under this Lease or at law, nor shall the waiver of or redress for any
violation of any covenant or condition in this Lease or in any of the rules or
regulations attached to this Lease or later adopted by Landlord, prevent a
subsequent act, which would have originally constituted a violation, from
having all the force and effect of an original violation. The receipt by
Landlord of Base Rent, Additional Rent or any other sum payable under this
Lease with knowledge of a breach of any covenant or condition in this Lease
shall not be deemed a waiver of such breach. The failure of Landlord to
enforce any of the rules and regulations attached to this Lease or later
adopted, against Tenant or any other tenant in the Building, shall not be
deemed a waiver. Any waiver by Landlord must be in writing and signed by
Landlord to be effective.
6.7 OFFER TO LEASE. The submission of this Lease in a draft form to
Tenant or its broker or other agent does not constitute an offer to Tenant to
lease the Premises. This Lease shall have no force or effect until: (a) it is
executed and delivered by Tenant to Landlord; and (b) it is executed and
delivered by Landlord to Tenant.
6.8 Force Majeure. In the event that either party shall be delayed,
hindered in or prevented from the performance of any act or obligation
required under this Lease (other than the payment of money) by reason of acts
of God, strikes, lockouts, labor troubles or disputes, inability to procure or
shortage of materials or labor, failure of power or utilities, delay in
transportation, fire, vandalism, accident, flood, severe weather, other
casualty, Governmental Requirements (including mandated changes in the Plans
and Specifications or the Tenant Improvements resulting from changes in
pertinent Governmental Requirements or interpretations thereof), riot,
insurrection, civil commotion, sabotage, explosion, war, terrorism, natural or
local emergency, acts or omissions of others, including Tenant or Landlord (as
applicable), or other reasons of a similar or dissimilar nature not solely the
fault of, or under the exclusive control of, Landlord or Tenant (as
applicable), then performance of such act or obligation shall be excused for
the period of the delay and the period for the performance of any such act or
obligation shall be extended for the period equivalent to the period of such
delay.
6.9 LANDLORD'S CONSENT. Unless otherwise provided in this Lease,
whenever Landlord's consent, approval or other action is required under the
terms of this Lease, such consent, approval or action shall be subject to
Landlord's judgment or discretion exercised in good faith and shall be
delivered in writing.
6.10 SEVERABILITY; CAPTIONS. If any clause or provision of this Lease
is determined to be illegal, invalid, or unenforceable under present or future
laws, the remainder of this Lease shall not be affected by such determination,
and in lieu of each clause or provision that is determined to be illegal,
invalid or unenforceable, there be added as a part of this Lease a clause or
provision as similar in terms to such illegal, invalid or unenforceable clause
or provision as may be possible and be legal, valid and enforceable. Headings
or captions in this Lease are added as a matter of convenience only and in no
way define, limit or otherwise affect the construction or interpretation of
this Lease.
6.11 INTERPRETATION. Whenever a provision of this Lease uses the term
(a) "include" or "including", that term shall not be limiting but shall be
construed as illustrative, (b) "covenant", that term shall include any covenant,
agreement, term or provision, (c) "at law", that term shall mean as specified in
any applicable statute, ordinance or regulation having the force of law or as
determined at law or in equity, or both, and (d) "day", that uncapitalized word
shall mean a calendar day. This Lease shall be given a fair and
31
reasonable interpretation of the words contained in it without any weight
being given to whether a provision was drafted by one party or its counsel.
6.12 INCORPORATION OF PRIOR AGREEMENT; AMENDMENTS. This Lease
contains all of the agreements of the parties to this Lease with respect to
any matter covered or mentioned in this Lease, and no prior agreement or
understanding pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties to this Lease or their respective
successors in interest.
6.13 AUTHORITY. If Tenant is a partnership, company, corporation or
other entity, Tenant represents and warrants to Landlord that the person
executing this Lease is duly authorized to so execute and deliver this Lease
and that all partnership, company, corporation or other entity actions and
consents required for execution of this Lease have been given, granted or
obtained. If Tenant is a partnership, company, corporation or other business
organization, it shall, within ten (10) Business Days after demand by
Landlord, deliver to Landlord satisfactory evidence of the due authorization
of this Lease and the authority of the person executing this Lease on its
behalf.
6.14 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every covenant and condition of this Lease.
6.15 SURVIVAL OF OBLIGATIONS. Notwithstanding anything contained in
this Lease to the contrary or the expiration or earlier termination of this
Lease, any and all obligations of either party accruing prior to the
expiration or termination of this Lease shall survive the expiration or
earlier termination of this Lease, and either party shall promptly perform all
such obligations whether or not this Lease has expired or terminated. Such
obligations shall include any and all indemnity obligations set forth in this
Lease.
6.16 CONSENT TO SERVICE. Tenant irrevocably consents to the service
of process of any action or proceeding at the address of the Premises. Nothing
in this paragraph shall affect the right to serve process in any other manner
permitted by law.
6.17 LANDLORD'S AUTHORIZED AGENTS. Notwithstanding anything contained
in the Lease to the contrary, including without limitation, the definition of
Landlord's Agents, only officers of Corporate Drive Corporation, the trustee
of Landlord, are authorized to amend, renew or terminate this Lease, or to
compromise any of Landlord's claims under this Lease or to bind Landlord in
any manner. Without limiting the effect of the pervious sentence, no property
manager or broker shall be considered an authorized agent of Landlord to
amend, renew or terminate this Lease, to compromise any of Landlord's claims
under this Lease or to bind Landlord in any manner.
6.18 WAIVER OF JURY TRIAL. Landlord and Tenant irrevocably waive the
respective rights to trial by jury in any action, proceeding or counterclaim
brought by either against the other (whether in contract or tort) on any
matter arising out of or relating in any way to this Lease, the relationship
of Landlord and Tenant or Tenant's use or occupancy of the Premises.
-THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.-
32
IN WITNESS WHEREOF, this Lease has been executed the day and year
first above set forth.
Designated Address for Landlord: LANDLORD:
Corporate Drive Corporation, as Trustee of Corporate Drive Corporation, as Trustee of
Corporate Drive Nominee Realty Trust Corporate Drive Nominee Realty Trust, a
c/x Xxxxxxx Associates Real Estate Counsel, Inc. Massachusetts nominee trust
Attention: Director of Asset Management
0000 Xxxxxx Xxx., 2400 Financial Center By:_________________________________
Xxxxxxx, XX 00000 Name: ______________________________
Its: _________________________________
Facsimile: 000-000-0000
with a copy to:
Corporate Drive Corporation, as Trustee of
Corporate Drive Nominee Realty Trust
c/x Xxxxxxx Associates Real Estate Counsel, Inc.
Attn: Vice President, Asset Management
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxx
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
and with a copy to:
Corporate Drive Corporation, as Trustee
of Corporate Drive Nominee Realty Trust
c/x Xxxxx Bank N.A.
Attn: Senior Vice President
000 00xx Xx. X.X., 0xx Xxxxx
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
with a copy to Manager at:
--------------------------
Xxxxxxxx Xxxx Services, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 000-000-0000
Designated Address for Tenant: TENANT:
------------------------------ -------
ClickSoftware, Inc. ClickSoftware, Inc., a
00 Xxxxxxxxx Xxxxx Xxxxxxxxxx corporation
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: By:
-------------------------- -----------------------
Name:
---------------------
Its:
----------------------
33
LANDLORD ACKNOWLEDGEMENT
)
) ss.
)
On this _____ day of January __, 2004, before me personally appeared
_______________, the ____________ of Corporate Drive Corporation, the
Massachusetts corporation that executed the within and foregoing instrument in
its capacity as Trustee of Corporate Drive Nominee Realty Trust, and
acknowledged said instrument to be the free and voluntary act and deed of said
corporation in its capacity as Trustee of Corporate Drive Nominee Realty
Trust, for the uses and purposes therein mentioned, and on oath stated that
he/she was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
_______________________________________________
Name: _________________________________________
NOTARY PUBLIC in and for the State of Maryland,
residing at ____________________. My appointment
expires: ______________________.
[NOTARIAL SEAL]
TENANT ACKNOWLEDGEMENT (CORPORATION)
_____________________________ )
) ss.
_____________________________ )
On this _______ day of January 2004, before me, a Notary Public in and
for the State of ___________________________, personally appeared
_______________________________, the ________________________ of
ClickSoftware, Inc., the ____________________________ corporation that
executed the within and foregoing instrument, and acknowledged said instrument
to be the free and voluntary act and deed of said corporation for the uses and
purposes therein mentioned, and on oath stated that s/he/they was/were
authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year
first as above written.
_______________________________________________
Name: _________________________________________
NOTARY PUBLIC in and for the State of__________,
residing at ____________________. My appointment
expires: _______________________.
[NOTARIAL SEAL]
34
EXHIBIT A to Lease
Intentionally Omitted
Ex. A
1
EXHIBIT B to Lease
DRAWING SHOWING LOCATION OF THE PREMISES
----------------------------------------
[Floor Plan]
Ex. B
1
EXHIBIT C to Lease
LISTING OF PLANS AND SPECIFICATIONS FOR TENANT IMPROVEMENTS
-----------------------------------------------------------
Plans and Specifications for the Tenant Improvements are as follows:
1. Paint and patch server room (240 sq. ft.).
2. Provide new anti-static Xxxxxxxxx VCT flooring in server room (240 sq.
ft.).
3. Provide 3.5 ton HVAC supplemental cooling unit to support base building
service to server room.
4. Electrical upgraded for additional service/transformer requirements by
tenant.
See floor plan on following page.
[Floor Plan]
Ex. C
1
EXHIBIT D to Lease
FORM OF LEASE MEMORANDUM
------------------------
Corporate Drive Corporation, as Trustee of Corporate Drive Nominee
Realty Trust, a Massachusetts nominee trust, as Landlord, and ClickSoftware,
Inc. as Tenant, executed that Lease dated as of ________________________, 2004
(the "Lease").
The Lease contemplates that this document shall be delivered and
executed as set forth in the paragraph entitled "Lease Memorandum". This Lease
Memorandum shall become part of the Lease.
Landlord and Tenant agree as follows:
1. The Commencement Date of the Lease is _____________________________.
2. The end of the Lease Term and the date on which this Lease will
expire is ______________________.
3. The Lease is in full force and effect as of the date of this Lease
Memorandum. By execution of this Lease Memorandum, Tenant confirms that as of
the date of the Lease Memorandum (a) Tenant has no claims against Landlord and
(b) Landlord has fulfilled all of its obligations under the Lease required to
be fulfilled by Landlord.
4. The Premises consist of approximately eight thousand eight hundred
twenty-two (8,822) rentable square feet.
5. The amount of Base Rent and the portion of the Lease Term during
which such Base Rent is payable shall be determined from the following table:
------------------------------------------------------------ ------------------ ------------------- ------------------
Applicable Portion of Lease Term Rate Per/Rentable Annual Base Rent Monthly Base
------------------------------------------------------------ Sq. Ft./ Annum Rent Installment
Beginning Ending (Annual divided by 12)
----------------------------- ------------------------------ ------------------ ------------------- ------------------
$18.50 $163,207.00 $13,600.58
----------------------------- ------------------------------ ------------------ ------------------- ------------------
$18.50 $163,207.00 $13,600.58
----------------------------- ------------------------------ ------------------ ------------------- ------------------
$19.00 $167,618.00 $13,968.17
----------------------------- ------------------------------ ------------------ ------------------- ------------------
$19.50 $172,029.00 $14,335.75
----------------------------- ------------------------------ ------------------ ------------------- ------------------
$20.00 $176,440.00 $14,703.33
----------------------------- ------------------------------ ------------------ ------------------- ------------------
Notwithstanding the foregoing, Landlord shall xxxxx all Base Rent
applicable to the Premises for the period from _______________ to
______________, provided, however, if the Lease is terminated prior to the
expiration of the Lease Term as a result of a default by Tenant, in addition
to all other damages to which Landlord may be entitled under the Lease and
applicable law, Tenant immediately and without notice shall pay Landlord the
full amount of all Base Rent which had been abated as aforesaid.
-THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.-
Ex. D
1
6. Tenant's Pro Rata Share is 8,822/119,702 = seven and thirty-seven
one-hundredths percent (7.37%), which shall be final, conclusive and
controlling during the Lease Term for all purposes.
Dated:__________________________ Dated:_______________________
LANDLORD: TENANT:
Corporate Drive Corporation, as Trustee of ClickSoftware, Inc., a
Corporate Drive Nominee Realty Trust, a California corporation
Massachusetts nominee trust
By:__________________________
By:_________________________________ Name:________________________
Name: ______________________________ Its:_________________________
Its: _________________________________
Ex. D
2
LANDLORD ACKNOWLEDGEMENT
)
) ss.
)
On this _____ day of _________, 2004, before me personally
appeared _______________, the ____________ of Corporate Drive Corporation,.
the Massachusetts corporation that executed the within and foregoing
instrument in its capacity as Trustee of Corporate Drive Nominee Realty Trust,
and acknowledged said instrument to be the free and voluntary act and deed of
said corporation in its capacity as Trustee of Corporate Drive Nominee Realty
Trust, for the uses and purposes therein mentioned, and on oath stated that
he/she was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
_______________________________________________
Name: _________________________________________
NOTARY PUBLIC in and for the District of Columbia,
residing at ____________________. My appointment
expires: ______________________.
[NOTARIAL SEAL]
TENANT ACKNOWLEDGEMENT (CORPORATION)
_____________________________ )
) ss.
_____________________________ )
On this _______ day of _______________, 2004, before me, a Notary
Public in and for the of ___________________________, personally appeared
_______________________________, the ________________________ of
ClickSoftware, Inc., the California corporation that executed the within and
foregoing instrument, and acknowledged said instrument to be the free and
voluntary act and deed of said corporation for the uses and purposes therein
mentioned, and on oath stated that s/he/they was/were authorized to execute
said instrument.
WITNESS my hand and official seal hereto affixed the day and year
first as above written.
_______________________________________________
Name: _________________________________________
NOTARY PUBLIC in and for the State of__________,
residing at ____________________. My appointment
expires: _______________________.
[NOTARIAL SEAL]
Ex. D
3
EXHIBIT E to Lease
RULES AND REGULATIONS
---------------------
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside or inside of the Building or
Land without the prior written consent of the Landlord. Landlord shall have
the right to remove, at Tenant's expense and without notice, any sign
installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed
at the expense of Tenant by a person chosen by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, Tenant shall immediately
discontinue such use. No awning shall be permitted on any part of the
Premises. Tenant shall not place anything against or near glass partitions or
doors or windows, which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalk, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Building. The halls,
passages, exits, entrances, elevators, escalators and stairways are not open
to the general public. Landlord shall in all cases retain the right to control
and prevent access to such areas of all persons whose presence in the judgment
of Landlord would be prejudicial to the safety, character, reputation and
interest of the Land, Building and the Building's tenants; provided that,
nothing in this Lease contained shall be construed to prevent such access to
persons with whom any Tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities. Tenant shall
not go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the
display of the name and location of tenants only, and Landlord reserves the
right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the
Premises shall be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for
the purpose of cleaning the same. Cleaning and janitorial services shall be
provided five (5) days per week. Tenant shall not cause any unnecessary labor
by carelessness or indifference to the good order and cleanliness of the
Premises. Landlord shall not in any way be responsible to any Tenant for any
loss of property on the Premises, however occurring, or for any damage to any
Tenant's property by the janitor, any of Landlord's Agents or any other
person.
6. Landlord will furnish Tenant, free of charge, two (2) keys to each
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises. Tenant, upon the termination of its tenancy, shall
deliver to Landlord the keys of all doors which have been furnished to Tenant,
and in the event of loss of any keys so furnished, shall pay Landlord
therefor.
7. HVAC service shall be provided to the Premises Monday through
Friday (excluding holidays) from 8:00 a.m. to 6:00 p.m. and Saturdays
(excluding holidays) from 8:00 am. to 12:00 noon. If Tenant shall require
after-hours HVAC, Tenant may request such service by notifying Landlord's
Manager not later than 11:00 a.m. of the day prior to the day on which such
after-hours service shall be needed, and not later than 2:00 p.m. on the
Thursday preceding any weekend for which such after-hours service shall be
needed. Tenant shall pay for such additional HVAC service at Landlord hourly
rate in effect from time to time and shall pay all charges therefor when and
as billed by Landlord. Such charges shall be deemed Additional Rent under the
Lease.
8. If Tenant requires telegraphic, telephonic, computer circuits,
burglar alarm or similar services, it shall first obtain, and comply with,
Landlord's instructions for their installation, and shall pay the entire cost
of such installation(s).
9. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry (such
load being one hundred (100) pounds per square foot) and which is allowed by
Governmental Requirements. Landlord shall have the right to
Ex. E
1
prescribe the weight, size and position of all equipment, materials, furniture
or other property brought into the Building. Heavy objects shall, if
considered necessary by Landlord, stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight. Business machines
and mechanical equipment belonging to Tenant, which cause noise or vibration
that may be transmitted to the structure of the Building or to any space in
the Building or to any other tenant in the Building, shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to eliminate noise or vibration. The persons employed to
move such equipment in or out of the Building must be acceptable to Landlord.
Landlord will not be responsible for loss of, or damage to, any such equipment
or other property from any cause, and all damage done to the Building by
maintaining or moving such equipment or other property shall be repaired at
the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene,
gasoline or inflammable or combustible fluid or material other than those
limited quantities permitted by the Lease. Tenant shall not use or permit to
be used in the Premises any foul or noxious gas or substance, or permit or
allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of
noise, odors or vibrations nor shall Tenant bring into or keep in or about the
Premises any birds or animals.
11. Tenant shall not use any method of heating or air-conditioning
other than that supplied by Landlord.
12. Tenant shall not waste any utility provided by Landlord and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air-conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has
actual notice.
13. Landlord reserves the right, exercisable without notice and
without liability to Tenant, to change the name and street address of the
Building.
14. Landlord reserves the right to exclude from the Building between
the hours of 6 p.m. And 7 a.m. The following day, or such other hours as may
be established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee in
charge of the Building and has a pass or is properly identified. Tenant shall
be responsible for all persons for whom it requests passes and shall be liable
to Landlord for all acts of such persons. Landlord shall not be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. Landlord reserves the right to prevent access to the
Building in case of invasion, mob, riot, public excitement or other commotion
by closing the doors or by other appropriate action.
15. Tenant shall close and lock the doors of its Premises and
entirely shut off all water faucets or other water apparatus, and electricity,
gas or air outlets before Tenant and its employees leave the Premises. Tenant
shall be responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking
water, food, beverage, towel or other similar services, except at such hours
and under such regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they
were constructed and no foreign substance of any kind whatsoever shall be
deposited in them. The expenses of any breakage, stoppage or damage resulting
from the violation of this rule shall be borne by Tenant if it or its
employees or invitees shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, of
newspapers, magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in or on the Premises. Tenant shall not make
any room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than that
specifically provided for in the Lease.
19. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the Building.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere.
20. With the exception of hanging pictures and the like on the walls,
Tenant shall not xxxx,
Ex. E
2
drive nails, screws or drill into the partitions, woodwork or plaster or in
any way deface the Premises. Landlord reserves the right to direct
electricians as to where and how telephone and telegraph wires are to be
introduced to the Premises. Tenant shall not cut or bore holes for wires.
Tenant shall not affix any floor covering to the floor of the Premises in any
manner except as approved by Landlord. Tenant shall repair any damage
resulting from noncompliance with this rule. Tenant also shall repair any
damage resulting from hanging pictures and the like on the walls.
21. Tenant shall not install, maintain or operate upon the Premises
any vending machine without the written consent of Landlord.
22. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Building or Land are prohibited, and
Tenant shall cooperate to prevent the same.
23. Landlord reserves the right to exclude or expel from the Building
and Land any person who, in Landlord's judgment, is intoxicated, under the
influence of liquor or drugs or in violation of any of these Rules and
Regulations.
24. Tenant shall store all of its trash and garbage within the
Premises. Tenant shall not place in any trash box or receptacle any material,
which cannot be disposed of in the ordinary and customary manner of trash and
garbage disposal. All garbage and refuse disposal shall be made in accordance
with directions issued from time to time by Landlord.
25. The Premises shall not be used for lodging or any improper or
immoral or objectionable purpose. No cooking shall be done or permitted by
Tenant, except that use by Tenant of Underwriters' Laboratory approved
equipment for brewing coffee, tea, hot chocolate and similar beverages shall
be permitted; provided that, such equipment and its use is in accordance with
all Governmental Requirements.
26. Tenant shall not use in the Premises or in the public halls of
the Building any hand truck except those equipped with rubber tires and side
guards or such other material-handling equipment as Landlord may approve.
Tenant shall not bring any other vehicles of any kind into the Building.
27. Without the prior written consent of Landlord, Tenant shall not
use the name of the Building in connection with or in promoting or advertising
the business of Tenant except as Tenant's address.
28. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency.
29. Tenant assumes any and all responsibility for protecting the
Premises from theft, robbery and pilferage, which includes keeping doors
locked and other means of entry to the Premises closed.
30. The requirements of Tenant will be attended to only upon
appropriate application to the Manager of the Building by an authorized
individual. Employees of Landlord are not required to perform any work or do
anything outside of their regular duties unless under special instructions
from Landlord, and no employee of Landlord is required to admit Tenant to any
space other than the Premises without specific instructions from Landlord.
31. Tenant shall not park its vehicles in any parking areas
designated by Landlord as areas for parking by visitors to the Building or
Land. Tenant shall not leave vehicles in the parking areas overnight nor park
any vehicles in the Building parking areas other than automobiles,
motorcycles, motor driven or nonmotor driven bicycles or four-wheeled trucks.
32. Landlord may waive any one or more of these Rules and Regulations
for the benefit of Tenant or any other tenant, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other person, nor prevent Landlord from thereafter revoking such waiver and
enforcing any such Rules and Regulations against any or all of the tenants of
the Building.
33. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the covenants
and conditions of any lease of premises in the Building. If any provision of
these Rules and Regulations conflicts with any provision of the Lease, the
terms of the Lease shall prevail.
Ex. E
3
34. Landlord reserves the right to make such other and reasonable
Rules and Regulations as, in its judgment, may from time to time be needed for
safety and security, the care and cleanliness of the Building and Land and the
preservation of good order in the Building. Tenant agrees to abide by all the
Rules and Regulations stated in this exhibit and any additional rules and
regulations, which are so, made by Landlord.
35. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant and Tenant's Agents.
Ex. E
4
EXHIBIT F to Lease
LETTER OF CREDIT CRITERIA
-------------------------
1. The letter of credit shall be clean, irrevocable and unconditional.
2. The letter of credit shall be in the amount specified in the Lease
paragraph captioned "Security Provisions".
3. The letter of credit must either (i) be issued by a national bank which is
a member of the New York Clearing House and which has a banking office
dedicated to the administration and payment of letters of credit in New York
City or Boston, Massachusetts or (ii) if issued by any bank which is not
described in clause (i), be confirmed by a bank described in clause (i). The
issuing bank must have been assigned by Standard & Poors Investor Services a
Bank Financial Strength Rating of BBB+, or better. If clause (ii) is
applicable, the confirming bank must be assigned by Standard & Poors Investor
Services a Bank Financial Strength Rating of BBB+, or better. The identity of
the issuing bank and of any confirming bank shall also be reasonably
satisfactory to Landlord.
4. The letter of credit shall have an expiration date no earlier than the
first anniversary of the date of its issuance and shall provide for its
automatic renewal from year to year unless terminated by the issuing bank by
notice to Landlord given not less than forty-five (45) days prior to its
expiration date by registered or certified mail. The final expiration date of
the letter of credit and all renewals of it shall be no earlier than sixty
(60) days following the end of the Lease Term.
5. The letter of credit shall be issued in favor of Landlord and shall be
effective immediately on its issuance.
6. The letter of credit may be drawn at the New York City banking office of
either the issuer of the letter of credit described in clause (a) of paragraph
3 or, if clause (b) of paragraph 3 is applicable, the confirming bank
described in clause (a) of such paragraph 3. It must allow for draws to be
made at sight on a draft drawn under the letter of credit which has been
approved as to form by Landlord. It must allow for one draw in the whole
amount or multiple partial draws. The Landlord shall not as a condition to any
draw be required to deliver any certificate, affidavit or other writing to the
issuer expressing the basis for the draw.
7. The letter of credit shall be transferable.
8. The letter of credit shall be governed by (a) the International Standby
Practices (SP 98 published by the International Chamber of Commerce and (b)
the United Nations Convention on Independent Guarantees and Standby Letters of
Credit. Alternatively, if approved by the lender and if required by either the
issuing bank or the confirming bank the Uniform Customs and Practices for
Documentary Credits published by the International Chamber of Commerce may be
substituted for the Practices referred to in clause (a) to the extent such
Customs and Practices are not inconsistent with the criteria in this Exhibit F.
9. The letter of credit shall otherwise be in such form and shall be subject
to such requirements as Landlord may reasonably require.
Ex. F
1
EXHIBIT G to Lease
LIST OF FURNITURE
-----------------
31 Workstations (16 of them have chairs)
11 offices (8 with desks and 9 with office chairs)
15 visitor chairs
1 small conference room with circular table and 4 chairs
1 large conference room with six modular tables and 10 chairs
1 reception station
1 server room with miscellaneous telecom equipment and storage rack
1 kitchen with refrigerator
