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EXHIBIT 10.4
LEASE
1. PARTIES. XXXXXX X. XXXXX and K. XXXXXX XXXXXXXX, Trustees of
ATHENAEUM REALTY NOMINEE TRUST, under a Declaration of Trust dated October 3,
1979, recorded at the Middlesex South Registry District of the Land Court as
Document #592998 and recorded with the Middlesex South Registry of Deeds, in
Book 15102, at Page 13, and not individually, ("LESSOR"), which expression shall
include its heirs, successors and assigns where the context so permits, does
hereby lease to net.Genesis Corp., a Massachusetts Corporation, ("LESSEE") which
expression shall include its successors, administrators, and assigns where the
context so permits, and the LESSEE hereby leases and shall peaceably hold and
enjoy the follow described premises:
2. PREMISES. Portions of the third floor, of the building at 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx, ("The Building") containing
sixteen thousand (16,000) square feet of space, all as described in Exhibit A
attached hereto and shown on the plan in said Exhibit A (the "Leased Premises"),
together with all improvements therein and together with all appurtenances
thereto, including but not limited to the right to use in common, with others
entitled thereto, the entrances, lobby, hallways, stairways, loading docks, and
elevators, necessary for access to and enjoyment of said Leased Premises.
The Leased Premises shall have as appurtenant thereto: (a) the right to
use in common with others entitled thereto, the entrances, lobbies, hallways,
stairways, walkways, sidewalks, driveways, loading docks, elevators and other
common facilities in the building containing any
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portion of the Leased Premises necessary for access to and enjoyment of the
Leased Premises, or portion, and (b) the pipes, conduits, wires, and appurtenant
equipment serving the Leased Premises, or portion thereof, in common with other
portions of the building containing any part of the Leased premises, subject,
however, to the following rights which are expressly excepted and reserved by
LESSOR: (i) the right, from time to time and after adequate advanced notice, to
install, maintain, use, repair, relocate, place and replace utility lines,
pipes, ducts, conduits, wires, gas, electric, or any other meters and fixtures
located on or passing through any portion of the Leased Premises to serve other
portions of the LESSOR's property of which the Leased Premises, or a portion
thereof, are a part provided the above work does not materially impair the
appearance of LESSEE's use of the Leased Premises and provided that if LESSOR's
work reduces the square footage available to the LESSEE then the rent due under
this Lease shall be reduced accordingly; (ii) the right to enter into, upon and
across any portion of the Leased Premises after adequate advanced notice to
exercise any reserved right of LESSOR hereunder or to complete LESSOR's
construction of the Leased Premises, or part thereof, and the Building; and
(iii) the right from time to time after adequate advanced notice to make
alterations or additions to the Building and to construct other buildings or
improvements on the Lot and to make additions to such buildings or improvements,
and to permit others to do so from time to time all as LESSOR may determine in
its sole discretion, and without LESSEE's consent in any instance; any such
alterations or additions being performed to the greatest possible extent in a
manner so as not unreasonably to interfere with the LESSEE's use and occupancy
of the Leased Premises.
Subject to LESSOR's reserved rights specified above, there shall be
appurtenant to the
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Leased Premises the right to park twenty (20) passenger motor vehicles in the
parking areas adjacent to the Building. LESSOR reserves the right to designate
the locations of the spaces with adequate advance notice to be utilized for such
parking rights by written notice to LESSEE, and to change the location of any or
all of such spaces by notice to LESSEE at any time and from time to time as
LESSOR shall solely determine. The parking spaces provided hereunder need not be
contiguous. Additional parking may be leased on a month-to-month basis at fair
market value, subject to availability.
3.1 TERM. The Term of this Lease shall be for a term of five (5) years
commencing on the Commencement Date. The Commencement Date shall be the latter
of:
(a) the date the Leased Premises are "ready for
occupancy" as that term is defined in Paragraph 3.2;
or
(b) December 1, 1996.
3.1.1. PHASED OCCUPANCY. In the event a portion of the Leased Premises
are substantially completed and ready for occupancy, and LESSOR shall have given
notice to LESSEE thereof, then LESSEE shall have the right to commence use and
occupancy of such portion of the Leased Premises subject to the terms and
conditions of this Lease. During the period of such partial use and occupancy,
Base Rent and additional rent payable under Paragraphs 4 and 5 hereof shall be
payable on a pro rata basis in the same proportion as the square footage of the
space being used and occupied bears to the total square footage of the Leased
Premises, and LESSEE shall perform, comply with and abide by all of its
obligations, undertakings and covenants as if, and to the same extent, as though
the term has commenced.
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3.2 COMPLETION OF IMPROVEMENTS. The Leased Premises shall be considered
"ready for occupancy" on the date upon which the improvements described in
Exhibit C hereto to be constructed by LESSOR at its sole cost and expense with
respect to the Leased premises are substantially completed, and LESSEE is given
a copy of a certificate of occupancy issued by the City of Cambridge Building
Department covering the Leased Premises. The Leased Premises shall be deemed
substantially completed notwithstanding that completion of work and adjustment
of equipment and fixtures or minor items of uncompleted work (so-called "punch
list" work items) remain to be done, if such work can be completed after
occupancy has been taken without causing unreasonable interference with LESSEE's
use of the Leased Premises. Except for latent defects and except to the extent
to which the LESSEE shall have given the LESSOR written notice, not later than
thirty (30) days after the Commencement Date, of matters or items as to which
the LESSOR has not properly performed its obligations with respect to the
construction and installation of the improvements called for under the Lease,
the LESSEE shall have no claim that the LESSOR has failed to perform such
obligations, and LESSEE's taking possession shall be conclusive evidence as
against LESSEE that said space and improvements were in good order and
satisfactory condition when LESSEE took possession. Notwithstanding the above,
during the first year of the Lease, the LESSEE may also give LESSOR notice of
any items it believes LESSOR has not properly performed its obligations with
respect to and that LESSEE did not discover until after thirty (30) days after
the Commencement Date because of the seasonality of that item (i.e., air
conditioning). The LESSOR shall complete all items of work not properly
performed as to which the LESSEE shall have given the LESSOR
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such timely notices as soon as conditions practicably permit thereafter in such
a manner as not to unreasonably disturb the LESSEE or its business operations
carried out in the Leased Premises.
4. RENT. LESSEE covenants and agrees to pay to LESSOR annual base rent
("Base Rent") in the amounts set forth or provided for below, by equal payments
of one-twelfth of such annual rate on the first day of each calendar month in
advance, the first monthly payment to be made on the first anniversary of the
Commencement Date, and by payment in advance of a pro-rata portion of a monthly
payment for any portion of a month at the beginning or end of the Term; all
payments to be made to LESSOR or such agent, and at such place, as LESSOR shall
from time to time in writing designate, the following being now so designated:
ATHENAEUM REALTY NOMINEE TRUST
c/o THE ATHENAEUM GROUP
000 XXXXX XXXXXX
XXXXXXXXX, XXXXXXXXXXXXX 00000-0000
The annual Base Rent during the Term is the sum of the following:
(i) Year 1 - $104,000.00
Years 2 - 5 - 200,000.00, plus;
(ii) the annual fair rental value of LESSEE's parking
spaces from Paragraph 2 above. ("Parking"). During
the term of this Lease, the fair rental value of the
LESSEE's parking spaces shall be $85.00 per space per
month.
Each rent payment shall be due and payable on the first of the month
for which the rent payment is applicable. Any installment not paid within five
(5) days of the due date will be subject to a late charge of five (5%) percent.
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4A. PREPAID RENT. Upon the Commencement Date, LESSEE shall pay to
LESSOR twelve (12) months rent for amounts due under Paragraphs 4(i) and 5 of
this Lease. The amount prepaid shall be comprised of the first year rental rate
($6.50 per RSF), common area charges due under Paragraph 5.1 ($2.13 per RSF) and
real estate tax charges due under Paragraph 5.3.2 ($2.01 per RSF). The total
amount due from LESSOR on the Commencement Date shall be One Hundred Seventy
Thousand Two Hundred Forty ($170,240.00) Dollars. The payment shall fulfill
LESSEE's rental obligations (other than for parking and utilities which are
separately metered to LESSEE) for Year One of this Lease.
5. RENT ADJUSTMENTS.
5.1 RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE BUILDING.
Commencing as of the Commencement Date and with respect to any calendar year
falling within the Term, or fraction of a calendar year at the beginning or end
of the Term, the LESSEE shall pay to the LESSOR, as additional rent, the
"LESSEE's Proportionate Building Share" (defined below) of operating expenses
attributable to the Building ("CAO Building") shall include, but is not limited
to, the following: all costs and expenses incurred by the LESSOR in connection
with the insurance, operation, repair, maintenance and cleaning of or for the
Building and heating, plumbing, elevators, electrical, air-conditioning and
other systems thereof, trash removal, janitorial services, security systems and
general expenses incurred by the LESSOR in connection with the insurance,
operation and maintenance of the Building (and not other tenants' spaces), to
keep the same safe, secure and in first-class order and condition.
LESSEE's Proportionate Building Share shall be that percentage, which
is equal to the
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ratio of the square footage of space constituting the Leased Premises to the
aggregate square footage of space in the Building.
The LESSEE's Proportionate Building Share with respect to the Leased
Premises is 5.61 percent.
5.2 MONTHLY PAYMENTS. Except as provided in Paragraph 4A. above,
beginning with the calendar year in which the Commencement Date occurs, and in
subsequent years during the Term of this Lease, the LESSEE shall pay to the
LESSOR pro rata monthly installments of amounts due under Paragraphs 5.1 on
account of projected CAO Building for such year, calculated by the LESSOR on the
basis of the best and most recent budget or data available. Appropriate
adjustments of estimated amounts shall be made between LESSOR and LESSEE
promptly after the close of each calendar year to account for actual CAO
Building for such year, except that LESSOR may, at its option, credit any amount
due from it to LESSEE as provided above against any sums then due from LESSEE to
LESSOR under this Lease. The balance of any amounts due shall be paid within
twenty (20) days after written notice thereof
5.3 RENT ADJUSTMENT - TAXES.
5.3.1 LESSOR TO PAY TAXES. The LESSOR shall be responsible for the
payment. before the same become delinquent, of all general and special taxes of
every kind and nature, including assessments for local improvements, and other
governmental charges which may be lawfully charged, assessed or imposed (herein
collectively called the "Taxes") upon the Building.
At any time during the Term if the present system of ad valorem
taxation of real property shall be changed to that in lieu of the whole or any
part of the ad valorem tax on real property,
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there shall be assessed on LESSOR a capital levy or other tax on the gross rents
received with respect to the Building or a federal, state, county, municipal, or
other local income, franchise, excise or similar tax, assessment, levy or charge
(distinct from any now in effect) measured by or based, in whole or in part,
upon any such gross rents, then any and all of such taxes, assessments, levies
or charges to the extent so measured or based, shall be deemed to be included
within the term "Taxes" but only to the extent that the same would be payable if
the Lot and the Building were the only property of LESSOR.
5.3.2 LESSEE's SHARE OF TAXES. The LESSEE shall pay to the LESSOR, as
additional rent, the LESSEE's Proportionate Building Share of that portion of
the Taxes attributable to the Building.
5.3.3 RENT ADJUSTMENT - PAYMENT. Beginning with the calendar year in
which the Commencement Date occurs and in subsequent years during the Term of
this Lease, LESSEE shall pay to the LESSOR monthly installments of one-twelfth
of the amounts due to LESSOR under Paragraphs 5.4.1 and 5.4.2 on account of
projected Taxes for such year, calculated by the LESSOR on the basis of the best
and most recent data available as set forth in a statement from LESSOR (and,
when available, based upon the real estate tax xxxx covering any such period).
Appropriate adjustments of estimated amounts shall be made between LESSOR and
LESSEE promptly after LESSOR shall have received the tax xxxx covering any such
period. The LESSEE shall have the right to inspect and audit the LESSOR's books
as they relate to the calculation of CAO Building expenses and Taxes. The
expense of inspecting and auditing LESSOR's books, as aforesaid, shall be borne
by LESSEE, unless said audit results in a variance
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which is greater than five (5%) percent, in which event the cost of the audit
shall be borne by LESSOR.
5.4.4 TAX ADJUSTMENT. If the LESSOR or any other tenant (excluding
LESSEE) in the Building shall construct an addition to the Building, or
construct improvements within the Building of unusual value so as to result in
an increase in Taxes over the Taxes which would have been assessed to that
Building but for such construction, there shall not be included in Taxes for
purposes of this Lease the amount of such increase in Taxes unless such
additions or improvements directly benefit the LESSEE. If the LESSEE, or the
LESSOR at the direction of the LESSEE, shall construct improvements within the
Leased premises, or any part thereof, of unusual value so as to result in an
increase in Taxes over the Taxes which would have been assessed to the Building,
or part, but for such unusually valuable improvements, the LESSEE shall be
responsible for the payment of the full amount of such increase.
6. UTILITIES AND OTHER SERVICES.
(a) The LESSEE shall pay charges for all heat,
air-conditioning, electricity, and water and sewer use charges and all other
utilities separately metered or sub-metered to the Leased Premises, and LESSEE
shall be responsible for all utility company deposits applicable to the supply
of such services to the Leased Premises. LESSEE shall also be responsible for
the payment of its proportionate share of all water and sewer use and utilities
or separately metered or sub-metered to the Leased Premises all as reasonably
determined by LESSOR. Upon request by the LESSOR, the LESSEE shall provide the
LESSOR with evidence of payment of such charges. LESSEE shall defend, indemnify
and hold LESSOR harmless from and against any
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claim or liability arising for such charges for which LESSEE is responsible.
(b) LESSOR agrees to furnish reasonable heat to the stairways,
elevators and other common areas in the Building, or portions thereof, as
necessary for comfortable occupancy and to provide adequate lighting to
passageways and stairways and all parking areas and walkways providing access
from the Building to the parking area in the evening during customary business
hours on regular business days, and to furnish ordinary repairs and cleaning of
the common areas and facilities of the Building and to the parking areas and
removal of snow and ice reasonably promptly after snowfall and ice accumulation
have ended to all walkways, access ways and approaches to the Building and the
parking lots as is customary in or about similar buildings in Cambridge. LESSEE
shall have access to the Leased Premises on a 365 day per year, 24 hours per day
basis. LESSOR shall, at its own costs, provide for LESSEE to be listed on all
Building tenant directories. LESSOR shall not be liable to LESSEE for any
compensation or reduction of rent by reason of inconvenience or annoyance or for
loss of business arising from the necessity of LESSOR or its agent entering the
Leased Premises, or for LESSOR's repairing the Leased Premises if such repair
is not performed by LESSOR, or for making repairs or renovations to any portion
of the Building, however, the necessity may occur unless the same is due to the
LESSOR's gross negligence. In case LESSOR is prevented or delayed from making
any such repairs or alterations, or supplying the utilities or services provided
for herein, or performing any other covenant or duty to be performed on LESSOR's
part, by reason of any cause beyond LESSOR's control, LESSOR shall not be liable
to LESSEE therefor, nor shall LESSEE be entitled to any abatement or reduction
of rent by reason thereof.
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nor shall the same give rise to a claim in LESSEE's favor that such failure
constitutes actual or constructive, total or partial, eviction from the Leased
Premises, or any portion thereof. LESSOR reserves the right to stop any service
or utility system, when necessary by reason of accident or emergency, or until
necessary repairs have been completed.
(c) To the extent that LESSOR has installed separate meters
for all utilities including heat, electricity, water and sewer, and
air-conditioning, the LESSEE shall pay its utility charges directly to the
suppliers of such utility services, as billed by the LESSOR within ten (10) days
of receipt of said xxxx and at least before the same become delinquent. If there
are not separate meters, then LESSEE shall pay its pro rata share of the utility
cost, as billed by LESSOR. The LESSEE and LESSOR shall have the right to audit
said charges and payments upon reasonable notice.
7. USE OF LEASED PREMISES. The LESSEE shall use the Leased Premises
only for the purpose of general offices.
8. COMPLIANCE WITH LAWS. The LESSEE acknowledges that no trade or
occupation shall be conducted in the Leased Premises or use made thereof which
shall be unlawful, improper, noisy or offensive, or be contrary to any law or
any municipal by-law or ordinance in force in the City of Cambridge. LESSEE
shall keep the Leased Premises equipped with all safety appliances and shall
procure and keep in force all licenses and permits required by law or ordinance
of any public authority because of the uses made of the Leased Premises by
LESSEE and shall maintain in good condition on the Leased Premises all safety
and fire protection devices required by the Board of Fire Underwriters, or other
body having similar
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functions, and of every insurance company and policy by which LESSOR or LESSEE
is insured. If any use of the Leased Premises results in the cancellation of
any insurances carried by LESSOR, or increases the cost thereof, the LESSEE
shall on demand reimburse the LESSOR all extra insurance premiums incurred as a
result of such use of the Leased Premises by the Leased Premises results in the
cancellation of any insurances carried by LESSOR, or increases the cost thereof,
the LESSEE shall on demand reimburse the LESSOR all extra insurance premiums
incurred as a result of such use of the Leased Premises by the LESSEE.
9. RISK OF LOSS OF PERSONAL EFFECTS. LESSEE acknowledges and agrees
that all of the furnishings, equipment, effects and property of LESSEE and of
all persons claiming by through or under LESSEE which may be on the Leased
Premises or elsewhere in any building in the Complex, shall be at the sole risk
and hazard of LESSEE and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by the leakage or bursting of water
pipes, steam pipes, or other pipes, by theft or from any other cause, no part of
said loss or damage is to be charged to or to be borne by LESSOR, except that
LESSOR shall in no event be indemnified or held harmless or exonerated from any
liability to LESSEE or to any other person, arising from any injury, loss,
damage or liability caused by LESSOR's negligence.
9A. INSURANCE - WAIVER OF SUBROGATION. LESSOR agrees to keep the
Building (and LESSEE agrees to keep all LESSEE's equipment, machinery and
fixtures therein) insured in amounts equal to the replacement cost of the same,
against fire and other perils included in a standard extended coverage
endorsement, and against breakdown of boilers and other machinery and equipment,
and LESSEE agrees to procure and keep in force comprehensive
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general liability insurance indemnifying LESSEE against all claims and damages
for any injury to or death of person or damage to property which may be claimed
to have occurred upon or to have been caused by activities or conditions within
the Leased Premises and indemnifying LESSOR to the extent any such claims and
demands are the responsibility or obligation of LESSEE pursuant to this lease or
as a matter of law, in amounts not less than $500,000 for property damage,
$500,000 for injury or death of one person, and $1,000,000 for injury or death
of more than one person in a single accident.
All insurance required hereunder shall be written by insurance carriers
qualified to do business and in good standing in Massachusetts and approved by
LESSOR, which approval shall not be unreasonably withheld. All policies of
insurance, shall name LESSOR and LESSEE as the insured parties. Each required
policy of insurance shall provide that, notwithstanding any act or omission of
LESSEE which might otherwise result in forfeiture of said insurance: (A) it
shall not be canceled nor its coverage reduced without at least ten (10) days
prior written notice to each insured named therein, and (B) any proceeds shall
be first payable to LESSOR or to holder of any mortgage encumbering the Leased
Premises, as their respective interests may appear.
As of the commencement of the Term hereof, and thereafter not less than
fifteen (15) days prior to the expiration dates of the expiring policies, the
original policies to be obtained by LESSEE hereto issued by the respective
insurers or certificates thereof including photocopies of the original policies,
shall be delivered to LESSOR.
Any insurance carried by either party with respect to the Leased
Premises or property therein or occurrences thereon shall include a clause or
endorsement denying to the insurer rights
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of subrogation against the other party to the extent rights have been waived by
the insured prior to occurrence of injury or loss. Each party, notwithstanding
any provisions of this Lease to the contrary, hereby waives any rights of
recovery against the other for injury of loss due to hazards covered by such
insurance to the extent of the indemnification received thereunder.
10. MAINTENANCE OF PREMISES. LESSEE shall pay its proportionate share
of the expenses and services set out in Paragraph 5 above. The LESSEE agrees to
maintain the Leased Premises in the same condition as they are at the
commencement of the Term or as they may be put in during the Term of this Lease,
reasonable wear and tear, damage by fire, other casualty and eminent domain, and
matters for which LESSOR is responsible hereunder only excepted, to provide its
own interior janitorial service, to install and maintain its own security system
as it considers appropriate and, whenever necessary, to replace plate glass and
other glass therein with that of the same quality as that damaged or injured.
LESSEE shall maintain and LESSEE shall pay for the maintenance of the HVAC
System servicing the Leased Premises. The LESSEE shall not permit the Leased
Premises to be overloaded, damaged, stripped, or defaced, nor suffer any waste.
LESSEE shall obtain written consent of LESSOR before erecting any sign on or
about the Leased Premises, which consent shall not be unreasonably withheld or
delayed. LESSEE further covenants and agrees: to take all reasonably necessary
actions to insure that smoke, fumes, vapors and odors will not permeate any
building containing the Leased Premises and will be removed only through the
exhaust and ventilating system servicing the Leased Premises; to keep the Leased
Premises free of pests, roaches and vermin; to keep all trash garbage and debris
stored on the Leased Premises (and not in any other portions of the Lot or the
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Building) in adequate covered containers, approved by LESSOR and placed in
locations or areas approved by LESSOR in writing and to arrange for the regular
removal thereof once each day; to provide for the frequent and adequate cleaning
of the Leased Premises and all walls, floors, fixtures and equipment therein
consistent with its use. LESSOR shall maintain in good condition the structural
elements and the roof of the Building, the mechanical equipment and systems in
the Building (other than such equipment and systems which are located within or
exclusively serve the Leased Premises, and other than LESSEE's maintenance
obligations otherwise provided herein), and the common areas of the Building.
11. ALTERATIONS - ADDITIONS. The LESSEE shall not make structural
alterations or additions to the Leased Premises, but may make nonstructural
alterations and improvements, provided the LESSOR consents thereto in advance in
writing in each instance, which consent shall not be unreasonably withheld or
delayed provided that LESSOR is furnished with detailed plans and specifications
reasonably approved by LESSOR. All such allowed alterations or additions shall
be at LESSEE's expense and shall be in quality at least equal to the present
construction. LESSEE shall not permit any mechanics' liens, or similar liens, to
remain upon the Leased Premises for labor and materials furnished to LESSEE or
claimed to have been furnished to LESSEE in connection with work of any
character performed or claimed to have been performed at the direction of
LESSEE, and shall cause any such lien to be released of record forthwith without
cost to LESSOR. Any alterations, or improvements made by the LESSEE, except for
moveable partitions and furnishings, installed at the LESSEE's cost, shall
become the property of the LESSOR at the termination of Lease as provided
herein.
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EXHIBIT C
October 18, 19___
Lessor's Work Scope For net.Genesis Corp.
DESIGN
architectural engineering services including PE
stamped plans.
as-built plans
operation manuals (as applicable)
CONSTRUCTION
permits, insurance, supervision
demo demolition (some existing walls, existing
mens/womens rooms, floors)
reconstruction of conference rooms per attached plan
kitchen provide building standard cabinetry @ kitchen area
with color approval by Lessee
provide appliance book-ups (tenant provides its own
equipment)
interior open ceiling in new area
repair/replace ceiling in area that currently has
dropped ceiling
painted drywall partitions for new wall areas
replace broken or stained exterior windows
doors to match existing doors
lock/hardware on doors
paint new and existing GWB (2 coats)
repair/cosmetic treatment of freight elevator areas.
flooring VCT: Armstrone Excelon in non-carpet areas.
26 ou. carpet throughout. Lessee to select color.
carpet manufacturer to be determined
plumbing/hvac men's & women's rooms (new)
clean/repair existing small restroom at east end of
space
sprinkler system adjusted for any changes required
due to new construction
plumbing at kitchen and bathrooms
upgraded or new HVAC system as needed. (mftr. to be
determined)
electrical new light fixtures at approximate 1/100 spacing.
ada build-out comply with ADA standards
appliance all code compliance including fire
Lessor agrees to use best efforts to assist Lessee in making any design changes
Lessee desires, provided that said changes do not materially interfere with
Lessor's construction schedule. At the time Lessee request a change, Lessor
shall provide Lessee with an allowance for the cost of the Lessor's scope above
for the item being changed and will either pay Lessee that amount or xxxx Lessee
for the incremental cost of the change made. For example, if Lessee chooses to
replace the carpet with a higher grade carpet that costs $5,000 more. Lessee
could pay the $5,000 cost increase to Lessor for the substitution. Upon request,
Lessor will provide upgrade costs estimates for Lessee.
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EXHIBIT B
SUBLET PREMISES
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000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(the "Building")
OVERLANDLORD'S CONSENT
October 8, 1999
A. The undersigned Overlandlord, as Landlord, under a certain lease dated
October 23, 1996 (the "Lease), by and between Cambridge Athenaeum LLC,
a Delaware limited liability company, successor in interest to Xxxxxx
X. Xxxxx and K. Xxxxxx Xxxxxxxx, Trustees of Athenaeum Realty Nominee
Trust, Landlord, and net.Genesis Corp., a Massachusetts corporation,
Tenant, for premises in the Building (the "Premises"), hereby consents
to a sublease ("Sublease") by and between, net.Genesis Corp., as
Sublandlord, and iXL-Boston, Inc., a Delaware corporation, as
Subtenant, for office premises on the third (3rd) floor of the Building
("Sublet Premises"), provided that:
1. A copy of any notice sent pursuant to said Sublease shall be
sent to: Beacon Capital Partners, Inc., Xxx Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Treasurer.
2. Subtenant shall have no right, without Overlandlord's prior
written consent, to further sublet the Sublet Premises or any
portion thereof nor shall the Subtenant have any right,
without Overlandlord's prior written consent, to assign said
sublease.
3. Subtenant shall name Overlandlord as an additional insured
party under any liability insurance policy which Subtenant is
required to maintain and,
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prior to taking possession of the Sublet Premises, Subtenant
shall deliver to Overlandlord a certificate of such insurance.
B. Nothing herein contained shall:
1. Be deemed to diminish or relieve net.Genesis Corp. of its
primary responsibility as party-tenant under the Lease;
2. Be deemed in any way to limit, restrict, or diminish
Overlandlord's rights under the Lease;
3. Extend, or otherwise increase, Overlandlord's obligations
under the Lease; or
4. Extend the term of the Lease.
Without limiting the foregoing, in the event that the Lease is
terminated for any reason, Subtenant shall have no further right to
occupy the Sublet Premises.
C. Anything to the contrary to provisions and conditions of this
Overlandlord's Consent which is contained in any instrument of sublease
shall be null and void and of no force and effect so far as it relates
to the rights and obligations of Overlandlord.
D. By executing this Overlandlord's Consent, the Overlandlord shall not be
deemed to have consented to any work proposed to be performed by Tenant
or Subtenant in the Premises. Any and all alterations, additions and
improvements in or to the Sublet Premises shall be subject to
Overlandlord's prior written consent.
-2-
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E. The undersigned Overlandlord hereby reserves its right to withhold
consent where the Lease allows the Landlord to withhold consent.
OVERLANDLORD:
CAMBRIDGE ATHENAEUM LLC,
a Delaware limited liability company
By: Xxxxxxx Athenaeum LLC,
a Delaware limited liability company, its manager
By: Beacon/XX Xxxxxxx LLC, a Delaware limited
liability company, its manager
By: Beacon Capital Partners, L.P., a Delaware
limited partnership d/b/a Beacon Capital
Partners Limited Partnership, its manager
By: Beacon Capital Partners, Inc.,
a Maryland corporation, its,
General Partner
By: /s/ Illegible Signature
----------------------------
Name:
---------------------------
Title:
--------------------------
Hereunto Duly Authorized
-3-
22
With respect to all such LESSEE work, LESSEE further agrees as follows:
that such work shall commence only after all required municipal and other
governmental permits and authorizations have been obtained (the LESSOR agreeing
to promptly upon request join in any application therefor at the LESSEE's
expense, whenever necessary) and all such work shall be done in a good and
workmanlike manner in compliance with building and zoning laws and with all
other laws, ordinances, regulations and requirements of all federal, state and
municipal agencies, and in accordance with the requirements and policies issued
by any insurer of LESSOR or LESSEE; that all such work shall be prosecuted with
reasonable dispatch to completion; that at all times when any such work is in
progress, LESSEE shall maintain or cause to be maintained adequate worker's
compensation insurance for those employed in connection therewith with respect
to whom death or injury claims could be asserted against LESSOR, the LESSEE or
the Leased Premises and comprehensive general liability or builder's risk
insurance (for mutual benefit of LESSEE and LESSOR) in coverages reasonably
approved by LESSOR; and that all such work of LESSEE shall be coordinated with
any work being performed by LESSOR and other tenants of the building in which
the work is taking place in such manner as to maintain harmonious labor
relations and not to interfere with the operation of the Building or the
construction work of others.
12. ASSIGNMENT - SUBLEASING. The LESSEE shall not assign or sublet the
whole or any part of the Leased Premises without the LESSOR's prior written
consent, which consent shall not be unreasonably withheld or delayed. Except,
however, such consent is not required for a Sublease to any entity which is
majority-owned by the Sublessor. Notwithstanding
23
such consent, LESSEE shall remain liable to LESSOR for the payments of all rent
and for the full performance of the covenants and conditions of this Lease.
12A. QUIET ENJOYMENT, COVENANT OF TITLE. The LESSEE, on paying the rent and
other charges hereunder, as and when the same shall become due and payable and
observing and performing the covenants, conditions and agreements contained in
this Lease on the part of the LESSEE to be observed and performed, all as herein
provided, shall and may lawfully, peaceably and quietly have, hold and enjoy the
Leased Premises during the Term, subject to all of the terms and provisions
hereof, without hindrance, ejection or disturbance by the LESSOR or by any
person or persons claiming by, through or under the LESSOR or by anyone claiming
paramount title.
13. SUBORDINATION. The Lease and LESSEE's interest hereunder, except as
hereinafter provided, shall be subordinate to the lien of any present or future
mortgage or mortgages upon the Leased Premises or any property of which the
Leased Premises are a part, irrespective of the time of execution or the time of
recording of any such mortgage or mortgages. The word "mortgage" as used in this
Paragraph shall mean mortgages, deeds of trust, and other similar instruments
held by any lender and all modifications, extensions, renewals and replacements
thereof. This Paragraph is self-operative, and no further instrument of
subordination shall be required by the holder of any such mortgage so long as
the subordination is made and granted upon the condition that, in the event of
any entry by the holder of any such mortgage to foreclose a foreclosure of any
such mortgage by entry or by sale or an acquisition by the holder of any such
mortgage of LESSOR's interest under this Lease or in the Leased Premises
24
through foreclosure or otherwise, LESSEE shall peaceably hold and enjoy the
Leased Premises as a lessee of such holder, upon the same terms, covenants and
conditions as set forth in this Lease without any hindrance or interruption from
such holder. In the event of such entry, foreclosure or acquisition, LESSEE
shall recognize the holder of the mortgage with respect to which such action is
taken as the LESSOR under this Lease. As used in this Paragraph, the word
"holder" includes any person claiming through or under any such mortgage,
including any purchaser at a foreclosure sale, and the word "LESSEE" shall
include LESSEE's successors and assigns. The word "mortgage" as used in this
Paragraph shall mean mortgages, deeds of trust, and other similar instruments
held by any institutional lender and all modifications, extensions, renewals and
replacements thereof. This Paragraph 13 is self-operative, and no further
instrument of subordination shall be required. LESSOR shall use reasonable
efforts to obtain a Subordination; Non-disturbance and Attornment agreement from
LESSOR's mortgagee for this Lease.
Notwithstanding the self-operative effect of this Paragraph 13, the LESSEE
agrees to execute such further documents in recordable form as the LESSOR or any
lender may reasonably require, consistent with the terms of this Paragraph 13
and 21. Should the LESSEE fail to execute and deliver to the LESSOR any such
document within ten (10) days of a written notice requesting the LESSEE to
execute and deliver such document, LESSEE shall pay to LESSOR (as liquidated
damages and not as a penalty) the sum of $500.00 per day for each day after such
tenth (10th) day during which such failure to deliver such instrument continues.
14. LESSOR'S ACCESS. The LESSOR or agents of the LESSOR may, at
25
reasonable times, upon reasonable prior notice, and so as not to unreasonably
interfere with the LESSEE's business, enter to view the Leased Premises, and may
remove placards and signs not approved and affixed as herein provided, and make
repairs and alterations as LESSOR should elect to do, and may show the Leased
Premises to others, with reasonable prior notice at any time within four (4)
months before the expiration of the term, may affix to any suitable part of the
Leased Premises a notice for letting or selling the Leased Premises or property
of which the Leased Premises are a part and keep the same so affixed without
hindrance or molestation.
15. INDEMNIFICATION AND LIABILITY. The LESSEE and LESSOR shall defend, save
harmless and indemnify each other from any claims of liability for injury, loss,
accident or damage to any person or property while on the Leased Premises, if
not due to the negligence of either party, or its employees or agents, and to
any person or property anywhere occasioned by any omission, fault, negligence or
other misconduct of either party and persons for whose conduct either party is
legally responsible.
16. HOLDING OVER. For each month or portion thereof LESSEE shall remain in
possession of the Leased Premises or any portion thereof after the termination
of this Lease, whether by lapse of time or otherwise, LESSEE agrees to pay to
LESSOR one and one-half times the total of the Base Rent set forth in Paragraph
4 in effect for the period immediately prior to LESSEE's holding, over and one
and one-half times the Additional Rent provided for under this Lease then
applicable, and also to pay all damages sustained by LESSOR on account thereof;
the provisions of this Paragraph shall not operate as a waiver by LESSOR of any
right of re-entry provided in this Lease.
26
16A. FURTHER LESSEE COVENANTS. LESSEE further covenants and agrees during
the Term and such further time as LESSEE holds any part of the Leased Premises:
(a) to pay when due all rent and other sums herein specified, without
offset, deduction or counterclaim except as otherwise specifically provided in
this Lease;
(b) not to obstruct in any manner any portion of any building, not hereby
leased or the sidewalks or approaches to such building or any inside windows or
doors;
(c) that neither the original LESSOR nor any successor LESSOR who or which
is a trustee or a partnership, nor any beneficiary of the original LESSOR or any
successor LESSOR nor any partner, general or limited, or such partnership shall
be personally liable under any term, condition, covenant, obligation or
agreement expressed herein or implied hereunder or for any claim or damage or
cause at law or in equity arising out of the occupancy of the Leased Premises or
the use or maintenance of the Building and LESSEE specifically agrees to look
solely to the LESSOR's interest in the Building for the recovery of any judgment
against LESSOR; and
(d) if any payment of rent or other sums due hereunder is not paid within
five (5) days of the due date, LESSEE shall pay to LESSOR a late charge equal to
five (5%) percent of the unpaid amount per month, or part thereof, that such
amount remains unpaid.
17. FIRE, CASUALTY.
17.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE." The term
"substantial damage", as used herein shall refer to damage which is of such a
character that the same cannot, in ordinary course, be expected to be repaired
within
27
ninety (90) calendar days from the time that such repair work would commence.
Any damage which is not "substantial damage" is "partial damage." In the event
of substantial damage to the Building, the LESSOR shall notify the LESSEE as
soon as is practicable and in no event later than thirty (30) days after such
damage of LESSOR's estimated time for repair of such damage.
17.2 PARTIAL DAMAGE TO THE BUILDING. If during the Lease Term there shall
be partial damage to the Building by fire or other casualty and if such damage
shall materially interfere with the LESSEE's use of the Leased Premises as
contemplated by this Lease, the LESSOR shall, to the extent insurance proceeds
are available to LESSOR, promptly proceed to restore the Building to
substantially the condition in which it was immediately prior to the occurrence
of such damage. Notwithstanding the foregoing, if there shall be partial damage
to the Building, and if such damage shall materially interfere with LESSEE's use
of the Leased Premises as contemplated by this Lease occurring during the last
twelve (12) months of the Lease Term of such a character that the same cannot,
in ordinary course, be expected to be repaired within thirty (30) days from the
time such repair work would begin, the LESSOR or LESSEE may, within ten (10)
days of the date of such damage, elect to terminate this Lease. If such election
is not made, the LESSOR shall promptly proceed with such restoration.
17.3 SUBSTANTIAL DAMAGE TO THE BUILDING. If during the Lease Term there
shall be substantial damage to the Building by fire or other casualty and if
such damage shall materially interfere with the LESSEE's use of the Leased
Premises as contemplated by this Lease, the LESSOR shall, to the extent
insurance proceeds are available to LESSOR, promptly restore the Building to an
architectural unit that is not. less suitable than that which existed prior
28
to such fire or casualty, unless the LESSOR or the LESSEE, within forty-five
(45) days after the occurrence of such damage, shall give notice to the other of
its election to terminate this Lease. If at any time during such forty-five (45)
day period the LESSOR notifies the LESSEE of its intention to restore the
Building, the LESSEE must then give notice to the LESSOR, within ten (10) days
of its receipt of the LESSOR's notice of intention to restore the Building, as
to whether the LESSEE will elect to terminate the Lease. Should the LESSEE fail
to elect to terminate the Lease within such ten (10) day period, the LESSEE's
right to terminate under this Paragraph 17.3 shall expire. If the LESSOR
proceeds with the restoration of the Building and if such damage shall not have
been repaired to the extent necessary for the LESSEE to resume its normal
business operations at the Leased Premises by the end of the 180th day following
the date of such fire or casualty, or if the LESSOR shall fail diligently to
cause such repair and restoration work to be performed, then the LESSEE may, at
any time thereafter while the damage remains unrepaired, terminate this Lease
upon notice to the LESSOR. If the LESSOR or the LESSEE shall give such notice of
termination, then this Lease shall terminate as of the date of such notice with
the same force and effect as if such date were the date originally established
as the expiration date hereof.
17.4 ABATEMENT OF RENT. If during the Lease Term the Building shall be
damaged by fire or casualty and if such damage shall materially interfere with
the LESSEE's use of the Leased Premises as contemplated by this Lease, a just
proportionate amount of the rent and other charges payable by the LESSEE
hereunder shall xxxxx proportionately for the period in which, by reason of such
damage, there is such interference with the LESSEE's use of the Leased
29
18. DEFAULT AND BANKRUPTCY. In the event that:
(a) The LESSEE shall, after the applicable five (5) day grace period,
default in the payment of any installment of rent or other sum herein specified;
or
(b) The LESSEE shall default in the observance or performance of the
LESSEE's covenants, agreements, or obligations hereunder (except as provided in
Paragraph 18(a) above) and the LESSEE shall not cure such default within thirty
(30) days after written notice thereof or if such default cannot be cured within
thirty (30) days, then if LESSEE shall not commence to cure the same within
thirty (30) days and diligently pursue the curing of the same; or
(c) LESSEE makes any assignment for the benefit of creditors, commits any
act of bankruptcy or files a petition under any bankruptcy or insolvency law; or
if such a petition is filed against LESSEE or any guarantor of LESSEE's
obligations under this Lease and is not dismissed within thirty (30) days; or if
a receiver or similar offer becomes entitled to LESSEE's leasehold hereunder and
it is not returned to LESSEE within thirty (30) days, or if such leasehold is
taken on execution or other process of law in any action against LESSEE; then in
any such case the LESSOR shall have the right thereafter, while such default
continues, to reenter and-take complete possession of the Leased Premises, to
declare the term of this Lease ended, and remove the LESSEE's effects at
LESSEE's sole cost and expense, without prejudice to any remedies which might be
otherwise used for arrears of rent or other default. The LESSEE shall indemnify
the LESSOR against all loss and reasonable payment of rent and other payments
which the LESSOR may incur by reason of such termination during the residue of
the term. In the event of default, LESSOR shall use its reasonable efforts to
re-let the Leased Premises so as
30
to mitigate any damages to the LESSEE hereunder.
If the LESSEE shall default, in the observance or performance of any
conditions or covenants on its part to be observed or performed under or by
virtue of any of the provisions of this Lease and after the expiration of any
period within which the LESSEE is entitled to cure such default as is provided
above in this Paragraph 18, the LESSOR, without being under any obligation to do
so and without thereby waiving such default, may remedy such default for the
account and at the expense of the LESSEE. If the LESSOR makes any expenditures
or incurs any obligations for the payment of money in connection therewith,
including but not limited to, reasonable attorney's fees, (except for
unsuccessful suits against the LESSEE) in instituting, prosecuting, or
defending any action or proceeding, such sums paid or obligations incurred, with
interest at the rate of twelve (12%) per annum and costs, shall be paid to the
LESSOR by the LESSEE as additional rent.
Nothing contained in this Lease shall limit or prejudice the right of
LESSOR to claim and obtain in proceedings for bankruptcy, insolvency or like
proceedings by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which the damages are to be claimed or proved,
whether or not the amount be greater, equal to or less than the amount of the
loss or damages referred to above.
18A. DEFAULT OF LANDLORD AND MORTGAGE RIGHTS. LESSOR shall in no event
be in default in the performance of any of LESSOR's obligations hereunder unless
and until LESSOR shall have failed to perform such obligations within thirty
(30) days or such
31
additional time as is reasonably required to correct any such default after
receipt of written notice by LESSEE to LESSOR properly specifying wherein LESSOR
has failed to perform any such obligation. LESSEE agrees to give any mortgagee,
by registered mail, a copy of any notice of default served upon the LESSOR,
provided that prior to such notice the LESSEE has been notified in writing of
the identity and address (by way of Notice of Assignment of Rents and Leases, or
otherwise) of the address of such mortgagee. The LESSEE further agrees that if
the LESSOR shall have failed to cure such default within the time provided for
in this Lease, then the mortgagee shall have an additional sixty (60) days
within which to cure such default or if such default cannot be cured within that
time, then such additional time as may be necessary if within sixty (60) days
the mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure) in which event this Lease shall
not be terminated while such remedies are being so diligently pursued.
18B. BANKRUPTCY OR INSOLVENCY.
(a) LESSEE's INTEREST NOT TRANSFERABLE. Neither LESSEE's interest in this
Lease nor any estate hereby created in LESSEE nor any interest herein or therein
shall pass to any trustee, except as may specifically be provided pursuant to
the Bankruptcy Code (11 USC Sec. 101, et seq.) or to any receiver or assignee
for the benefit of creditors or otherwise by operation of law.
(b) TERMINATION OF LEASE. Notwithstanding anything to the contrary
contained in this Lease, in the event the interest or estate created in LESSEE
hereby shall be
32
taken in execution or by other process of law or if LESSEE or LESSEE's
guarantor, if any, or LESSEE's executors, administrators or assigns, if any,
shall be adjudicated insolvent or bankrupt pursuant to the provisions of any
state law of an order for the relief of such entity shall be entered pursuant to
the Bankruptcy Code, or if a receiver or trustee of the property of LESSEE or
LESSEE's guarantor, if any, shall be appointed by reason of the insolvency or
inability of LESSEE or LESSEE's guarantor, if any, to pay its debts or if any
assignment shall be made of the property of LESSEE, or LESSEE's guarantor, if
any, for the benefit of creditors, then and in any such events this Lease and
all rights of LESSEE hereunder shall automatically cease and terminate with the
same force and effect as though the date of such event were the date originally
established herein and fixed for the expiration of the term and LESSEE shall
vacate and surrender the Leased Premises but shall remain liable as herein
provided.
(c) LESSEE's OBLIGATION TO AVOID CREDITORS' PROCEEDINGS. LESSEE or LESSEE's
guarantor, if any, shall not cause or give cause for the appointment of a
trustee or receiver of the assets of LESSEE or LESSEE's guarantor, if any, and
shall not make any assignment for the benefit of creditors or become or be
adjudicated insolvent. The allowance of any petition under any insolvency law,
except under the Bankruptcy Code or the appointment of a trustee or receiver of
LESSEE or LESSEE's guarantor, if any, or of the assets of either of them, shall
be conclusive evidence that LESSEE caused or gave cause therefor, unless such
allowance of the petition or the appointment of a trustee or receiver is vacated
within ninety (90) days after such allowance or appointment. Any act described
in this paragraph shall be deemed a material breach of LESSEE's obligation
hereunder and this Lease shall thereupon automatically
33
terminate. LESSEE does, in addition, reserve any and all other remedies provided
in this Lease or in the law.
(d) RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE. Upon the filing of a
petition by or against LESSEE under the Bankruptcy Code, LESSEE, as debtor and
as debtor-in-possession, and any trustee who may be appointed agree as follows:
(i) to perform each and every obligation of LESSEE under this Lease including,
but not limited to, the manner of-operation of this Lease, until such time as
this Lease is either rejected or assumed by order of the United States
Bankruptcy Court; (ii) to pay monthly, in advance, on the first day of each
month, as reasonable compensation for use and occupancy of the Leased Premises,
an amount equal to all fixed annual Base Rent, additional rent and other charges
otherwise due pursuant to this Lease; (iii) to reject or assume this Lease
within sixty (60) days of the appointment of such trustee under Chapter 7 of the
Bankruptcy Code or within one hundred twenty (120) days (or such shorter term as
LESSOR, in its sole discretion, may deem reasonable, so long as notice of such
period is given) of the filing of a petition under any other chapter; (iv) to
give LESSOR at least forty-five(45) days' prior written notice of any proceeding
relating to any assumption of this Lease; (v) to give at least thirty (30) days'
prior written notice of any abandonment of the Leased Premises, with any such
abandonment to be deemed a rejection of this Lease and an abandonment of any
property not previously removed from the Leased Premises; (vi) to do all other
things of benefit to LESSOR otherwise required under the Bankruptcy Code; (vii)
to be deemed to have rejected this Lease in the event of the failure to comply
with any of the above: and (viii) to have consent to the entry of any order by
an
34
appropriate United States Bankruptcy Court providing all of the above, waiving
notice and hearing of the entry of same.
No default of this Lease by LESSEE, either prior to or subsequent to the
filing of such a petition, shall be deemed to have been waived unless expressly
done so in writing by LESSOR. It is understood and agreed that this is a Lease
of real property and that, therefore, Sec. 365(b) (3) of the Bankruptcy Code is
applicable to any proposed assumption of this Lease in a bankruptcy case.
Included within and in addition to any other conditions or obligations
imposed upon LESSEE or its successor in the event of assumption and/or
assignment are the following: (i) the cure of any monetary defaults and the
reimbursement of pecuniary loss immediately upon entry of a court order
providing for assumption and/or assignment; (ii) [intentionally omitted]; (iii)
the use of the leased Premises as set forth in the reference data section of
this Lease and the quality, quantity and/or lines of merchandise of any goods
or services required to be offered for sale are unchanged; (iv) the payment of
any sums which may then be due or which may thereafter become due under the
provisions of this Lease; (v) the debtor, debtor-in-possession, trustee or
assignee of such entity demonstrates in writing that it has sufficient
background, including, but not limited to, substantial commercial experience
in buildings of comparable size and financial ability to operate a commercial
establishment out of the Leased Premises in the manner contemplated in this
Lease, and meets all other reasonable criteria of LESSOR as did LESSEE upon
execution of this Lease; (vi) the prior written consent of any mortgagee to
which this Lease has been assigned as collateral security; and (vii) the Leased
Premises at all times remains a
35
single store (if retail) and no physical changes of any kind may be made to
the Leased Premises unless in compliance with the applicable provisions of this
Lease.
Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall, upon demand, execute and
deliver to LESSOR an instrument confirming such assumption in accordance with
the terms of Paragraph 21 hereof.
19. NOTICE. Any notice from the LESSOR to the LESSEE relating to the Leased
Premises or to the occupancy thereof shall be deemed duly served, if mailed,
registered or certified mail, return receipt requested, postage prepaid,
addressed to the LESSEE, net.Genesis Corp., Attention: President at the Leased
Premises and to
XXXX X. XXXXXXXXX, XX., ESQ.
XXXXX XXXX & XXXXX LLP
XXX XXXX XXXXXX XXXXXX
XXXXXX, XX 00000
Any notice from the LESSEE to the LESSOR relating to the Leased Premises or
to the occupancy thereof, shall be deemed duly served, if mailed to the LESSOR
by registered or certified mail, return receipt requested, postage prepaid,
addressed to the LESSOR at such address as the LESSOR may from time to time
advise in writing. All rent and notices shall be paid and sent to the LESSOR
at:
ATHENAEUM REALTY NOMINEE TRUST
c/o THE ATHENAEUM GROUP
000 XXXXX XXXXXX
XXXXXXXXX, XXXXXXXXXXXXX 00000-0000
36
20. RULES AND REGULATIONS. The LESSOR shall have the right to institute and
to change from time to time, rules and regulations for the use of the Building
by commercial office Lessees, and by commercial retail lessees, which shall be
reasonable in all instances and shall be uniformly applicable to all commercial
Lessees in the Building and the LESSEE agrees to abide thereby.
21. PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
22. SURRENDER. The LESSEE shall at the expiration or other termination of
this Lease remove all LESSEE's goods and effects from the Leased Premises
(including, without hereby limiting the generality of the foregoing, all signs
and lettering affixed or painted by the LESSEE, either inside or outside the
Leased Premises). LESSEE shall deliver to the LESSOR the Leased Premises and all
keys, locks thereto, and other fixtures connected therewith, and all alterations
and additions made to or upon the Leased Premises, in the same condition as they
were at the commencement of the term, or as they were put in during the term
hereof, reasonable wear and tear and damage by fire or other casualty only
excepted. In the event of the LESSEE's failure to remove any of the LESSEE's
property from the Leased Premises, LESSOR is hereby authorized without liability
to LESSEE for loss or damage thereto, and at the sole risk of LESSEE, to remove
and store any of the property at LESSEE's expense or to retain the same under
LESSOR's control or to sell at public or private sale, with reasonable notice
any or all of
37
the property not so removed, and to apply the net proceeds of such sale to the
payment of any sum due hereunder.
23. OPTION TO EXTEND. If the LESSEE is not then in default, LESSOR does
hereby grant to LESSEE the option to extend this Lease for one (1) additional
five (5) year term, commencing on the expiration of the Initial Term upon the
same terms and conditions as herein contained except the annual Base Rent set
forth in Paragraph 4 hereof shall be at the rate set forth below. LESSEE's
desire to extend the Lease shall be communicated by written notice from LESSEE
and received by LESSOR at least seven (7) months prior to the expiration of the
Initial Term. LESSOR shall provide LESSEE at least six (6) months prior to the
expiration of the initial term with its reasonable estimate of the then current
market value for comparable space in Cambridge. LESSEE shall notify LESSOR at
least four (4) months prior to the expiration of the Initial Term of its
decision to accept or reject LESSOR's rent.
24. BROKER. The LESSOR and LESSEE each represent and warrant to the other
that each has had no dealings with any Brokers other than Xxxxxxx X. Xxxxx of
Xxxxxxxx Xxxxx & Company concerning this Lease, and each party agrees to
indemnify and hold the other harmless for any damages occasioned to the other by
reason of a breach of this representation and warranty. LESSOR shall pay a
commission to Xxxxxxxx Xxxxx & Company.
25. ESTOPPEL CERTIFICATE. LESSOR and LESSEE each agree at any time from
time to time, upon not less than ten (10) days prior notice to execute,
acknowledge and deliver to the other, a statement in writing, certifying to the
extent possible that this Lease is unmodified and in full force and effect, or
if there have been modifications, that the same is in
38
full force and effect as modified and stating such modifications and otherwise
certifying if there exists any default under the terms of this Lease and such
other information as may be reasonably requested concerning this Lease by the
other party or any other third party with a bona fide interest. Should either
party fail to deliver to the other party any such statement within ten (10) days
of receipt of a written notice requesting any such statement, the party failing
to deliver any such statement shall pay to the requesting party, the sum of
$500.00 per day (as liquidated damages and not as a penalty), for each day after
such tenth (10th) day during which such failure continues.
26. SECURITY DEPOSIT. Waived.
27. MISCELLANEOUS.
(a) Upon written request from LESSOR, LESSEE shall submit annual financial
statements to the LESSOR including statements of cash flow. If the LESSEE is a
publicly traded corporation it shall supply LESSOR, on a quarterly basis, with
its 10-Q filings.
(b) The LESSOR reserves the right to assign or transfer any and all of its
right title and interest under the Lease, including but not limited to the
benefit of all covenants of the LESSEE hereunder. Notwithstanding anything
contained in this Lease to the contrary, it is specifically understood and
agreed that the obligations imposed under the LESSOR hereunder shall be binding
upon the LESSOR and LESSOR's successors in interest only with respect to
breaches occurring during and prior to LESSOR's and LESSOR's successors'
ownership of LESSOR's interest hereunder and LESSOR and its said successors in
interest shall not be liable for acts and occurrences arising from and after the
transfer of their interest as LESSOR
39
hereunder.
(c) This Lease shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts, as the same may from time to time
exist.
(d) This Lease contains all of the agreements of the parties with respect
to the subject matter thereof and supersedes all prior oral and written
negotiations and dealings between them with respect to such subject matter. The
agreement of the parties contained in this Lease shall not be modified or
amended unless such modification or amendment is in writing and signed by the
parties.
(e) The LESSEE acknowledges that LESSEE has not been influenced to enter
into this Lease nor has it relied upon any warranties or representations not set
forth or incorporated in this Lease or previously made in writing.
(f) If any term or provision of this Lease or the application thereof to
any person or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Lease or the application of such term or provisions to persons
or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term and provision of this
Lease shall be valid and enforced to the fullest extent permitted by law.
The undersigned Trustees of the ATHENAEUM REALTY NOMINEE TRUST do hereby
certify that they were each authorized by all of the beneficiaries of said Trust
to acknowledge the within Lease on behalf of the Trustees.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 23rd day of October, 1996.
40
LESSOR:
ATHENAEUM REALTY NOMINEE TRUST
/s/ Xxxxxx X. Xxxxx, Trustee /s/ [Illegible Signature]
----------------------------------- -------------------------------
NAME: Xxxxxx X. Xxxxx, Trustee WITNESS
OFFICE: Trustee
Hereunto Duly Authorized.
/s/ K. Xxxxxx Xxxxxxxx, Trustee /s/ [Illegible Signature]
------------------------------------ -------------------------------
NAME: K. Xxxxxx Xxxxxxxx, Trustee WITNESS
OFFICE: Trustee
Hereunto Duly Authorized
LESSEE
net.Genesis Corp.
/s/ Xxxxx Xxxxxxxx /s/ Xxxxxxxx Cucotta
----------------------------------- --------------------------------
NAME: Xxxxx Xxxxxxxx WITNESS
OFFICE: President
Hereunto Duly Authorized
/s/ Xxxxx Xxxxxxxx /s/ Xxxxxxxx Cucotta
----------------------------------- --------------------------------
NAME: Xxxxx Xxxxxxxx WITNESS
OFFICE: Treasurer
Hereunto Duly Authorized
