Exhibit 10.11
LEXINGTON CORPORATE CENTER
L E A S E
ARTICLE 1
---------
Reference Data
--------------
1.1 Subject Referred To
-------------------
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section
1.1.
Date of this Lease: As of May 24, 1999
Building: The Building constructed in Lexington,
Massachusetts on a parcel of land described
in the deed filed with the Middlesex South
Registry District of the Land Court on April
16, 1997 as Document No. 1029106, and known
as 00 Xxxxxxx Xxxx (the Building and such
parcel of land hereinafter being collectively
referred to as the "Property").
Premises: The portion of the Building known as "Area
4," substantially as shown on Exhibit A
attached hereto.
Rentable Floor
Area of Premises: Approximately 31,046 rentable square feet
Landlord: 00 Xxxxxxx Xxxx LLC
Original Notice
Address of Landlord: c/x Xxxxxxxx Management Company, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Tenant: Xxxxxxxx.xxx, Inc. a ____________ corporation
Original Notice
Address of Tenant: 00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Expiration Date: The last day of the fifth (5th) Lease Year (as
hereinafter defined)
Delivery Date: September 1, 1999
Allowance: $683,012.00
Annual Fixed
Rent Rate: $776,150.00 during the 1st and 2nd Lease
Years; $807,196.00 during the 3rd Lease Year
and $838,242.00 thereafter.
Monthly Fixed
Rent Rate: $64,679.16 during the 1st and 2nd Lease
Years; $67,266.33 during the 3rd Lease Year
and $69,853.50 thereafter.
Rent
Commencement
Date: The date that is one (1) month from the
Commencement Date (as defined in Section 2.2).
Letter of Credit
Amount: $800,000.00, subject to reduction pursuant to
Section 4.4
Base Operating
Costs: $1,225,698.00
Base Taxes: $484,578.00
Tenant's Percentage: The ratio of the Rentable Floor Area of the
Premises to the total rentable area of the
Building, which shall initially be deemed to
be 10.89%.
Permitted Uses: General business offices and ancillary uses
incidental thereto, including without
limitation, incidental storage, kitchenette
and lunchroom areas for use by Tenant's
employees.
Public Liability Insurance Limits:
Comprehensive General Liability: $1,000,000 per occurrence
$5,000,000 general aggregate
1.2 Exhibits.
--------
The Exhibits listed below in this section are incorporated in this Lease by
reference and are to be construed as a part of this Lease.
EXHIBIT A Plan showing the Premises
EXHIBIT B Commencement Date Notification
EXHIBIT C Base Building Work
EXHIBIT C-1 Conceptual Plan of TIW
EXHIBIT D Work Change Order
EXHIBIT E Rules and Regulations
EXHIBIT F Form of Letter of Credit
EXHIBIT G Cleaning and Janitorial Standards
1
1.3 Table of Articles and Sections.
------------------------------
ARTICLE 1 -- Reference Data
---------------------------
1.1 Subjects Referred To...................................... 1
1.2 Exhibits.................................................. 1
1.3 Table of Articles and Sections............................ 2
ARTICLE 2 -- Premises and Term
------------------------------
2.1 Premises.................................................. 3
2.2 Term...................................................... 3
2.3 Extension Option.......................................... 3
2.4 Termination Right......................................... 4
ARTICLE 3 -- Improvements
-------------------------
3.1 Performance of Work and Approval of Landlord's Work....... 4
3.2 Acceptance of the Premises................................ 4
3.3 Pre-Commencement Entry by Tenant.......................... 5
ARTICLE 4 -- Rent
-----------------
4.1 The Fixed Rent............................................ 5
4.2 Additional Rent........................................... 5
4.2.1 Real Estate Taxes.................................. 5
4.2.2 Personal Property Taxes............................ 5
4.2.3 Operating Costs.................................... 5
4.2.4 Insurance.......................................... 6
4.2.5 Utilities.......................................... 7
4.3 Late Payment of Rent...................................... 7
4.4 Letter of Credit.......................................... 7
4.4.1 Amount of Letter of Credit......................... 7
4.4.1.1 Annual Reduction; Tenant's Election....... 7
4.4.2 Renewal of Letter of Credit........................ 7
4.4.3 Draws to Cure Defaults............................. 8
4.4.4 Draws to Pay Damages............................... 8
4.4.5 Draws for Failure to Deliver Substitute Letter
of Credit......................................... 8
4.4.6 Transferability.................................... 8
4.4.7 Substitution of Cash............................... 8
4.4.8 Return of Letter of Credit at End of Term.......... 8
ARTICLE 5 -- Landlord's Covenants
---------------------------------
5.1 Affirmative Covenants..................................... 8
5.1.1 Heat and Air Conditioning.......................... 8
5.1.2 Electricity........................................ 8
5.1.3 Cleaning; Water.................................... 8
5.1.4 Fire Alarm......................................... 8
5.1.5 Repairs............................................ 8
5.1.6 Landscaping; Snow Removal.......................... 8
5.1.7 On-Site Amenities.................................. 8
5.1.8 Access............................................. 8
5.1.9 Y2K Compliance..................................... 8
5.2 Interruption.............................................. 8
5.3 Outside Services.......................................... 8
5.4 Landlord's Insurance...................................... 8
ARTICLE 6 -- Tenant's Additional Covenants
------------------------------------------
6.1 Affirmative Covenants..................................... 8
6.1.1 Perform Obligations................................ 8
6.1.2 Use................................................ 8
6.1.3 Repair and Maintenance............................. 8
6.1.4 Compliance with Law................................ 8
6.1.5 Indemnification.................................... 8
6.1.6 Landlord's Right to Enter..........................10
6.1.7 Personal Property at Tenant's Risk.................10
6.1.8 Payment of Landlord's Cost of Enforcement..........10
6.1.9 Yield Up...........................................10
6.1.10 Rules and Regulations..............................10
6.1.11 Xxxxxxxx Certificate...............................10
6.1.12 Landlord's Expenses Re Consents....................10
6.2 Negative Covenants........................................10
6.2.1 Assignment and Subletting..........................10
6.2.2 Nuisance...........................................11
6.2.3 Hazardous Wastes and Materials.....................11
6.2.4 Floor Load; Heavy Equipment........................11
6.2.5 Installation, Alterations or Additions.............11
6.2.6 Abandonment........................................12
6.2.7 Signs..............................................12
6.2.8 Parking and Storage................................12
ARTICLE 7 -- Casualty or Taking
-------------------------------
7.1 Termination...............................................12
7.2 Restoration...............................................12
7.3 Award.....................................................12
ARTICLE 8 -- Defaults
---------------------
8.1 Events of Default.........................................12
8.2 Remedies..................................................13
2
8.3 Remedies Cumulative.......................................13
8.4 Landlord's Right to Cure Defaults.........................13
8.5 Effect of Waivers of Default..............................13
8.6 No Waiver, etc............................................13
8.7 No Accord and Satisfaction................................13
ARTICLE 9 -- Rights of Mortgage Holders
---------------------------------------
9.1 Rights of Mortgage Holders................................13
9.2 Lease Superior or Subordinate to Mortgages................13
ARTICLE 10 -- Miscellaneous Provisions
--------------------------------------
10.1 Notices From One Party to the Other......................14
10.2 Quiet Enjoyment..........................................14
10.3 Lease Not to be Recorded.................................14
10.4 Limitation of Landlord's Liability.......................14
10.5 Acts of God..............................................14
10.6 Landlord's Default.......................................14
10.7 Brokerage................................................14
10.8 Applicable Law and Construction..........................14
ARTICLE 2
---------
Premises and Term
-----------------
2.1 Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
--------
Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, excluding the roof,
exterior faces of exterior walls, the common stairways, stairwells,
elevators and elevator shafts, and pipes, ducts, conduits, wires, and
appurtenant fixtures serving exclusively or in common other parts of the
Building (and any areas, such as the space above the ceiling or in the
walls, that may contain such pipes, ducts, conduits, wires or appurtenant
fixtures), and if Tenant's space includes less than entire rentable area of
any floor, excluding the central core area of such floor.
Tenant shall have, as appurtenant to the Premises, rights to use in common,
subject to reasonable rules of general applicability to tenants of the
Building from time to time made by Landlord of which Tenant is given
reasonable advance notice, the common areas and facilities of the Building,
including, without limitation: (a) the common lobbies, hallways,
stairways, elevators and lavatories of the Building, loading docks and
ramps, (b) common walkways and driveways necessary for access to the
Building, (c) the common parking areas serving the Building, and (d) the
cafeteria and exercise facility, including the locker/shower room, on the
Property.
Tenant shall be permitted to use up to 109 parking spaces in the parking
area serving the Building.
Landlord reserves the right from time to time, without unreasonable
interference with use of the Premises: (a) to install, use, maintain,
repair, replace and relocate for service to the Premises and other parts of
the Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or Building, provided that any
such work is installed above the finished ceiling, below the finished
floor, or within existing chases, (b) to alter or relocate any other common
facility, (c) to make any repairs and replacements to the Premises which
Landlord is required or permitted to make hereunder, and (d) in connection
with any excavation made upon adjacent land of Landlord or others, to
enter, and to license others to enter, upon the Premises to do such work as
the person causing such excavation deems necessary to preserve the wall of
the Building from injury or damage and to support the same. Landlord will
use reasonable efforts to minimize any disruption to Tenant's use of the
Premises in Landlord's exercise of its rights hereunder.
2.2 Term. TO HAVE AND TO HOLD for a term (the "Original Term") beginning on
----
the Commencement Date, which shall be the earlier of (a) the date on which
the work to be performed by Landlord pursuant to Exhibits C and C-1 has
been Substantially Completed (defined below) or (b) the opening by Tenant
of its business in the Premises, and ending on the Expiration Date, unless
sooner terminated as hereinafter provided. The term "Substantially
Completed" as used herein shall mean that the work to be performed by
Landlord pursuant to Exhibits C and C-1 has been completed with the
exception of minor items which can be fully completed without material
interference with Xxxxxx's use of the Premises and other items which
because of the season or weather or the nature of the item are not
practicable to do at the time, provided that none of said items is
necessary to make the Premises tenantable for the Permitted Uses. If
Landlord's Work is delayed due to Tenant Delay (hereinafter defined), then,
for the purposes of determining the Commencement Date, the Landlord's Work
shall be deemed to be substantially completed on the date that such work
would have been substantially completed but for such Tenant Delay. If
Landlord's Work is deemed substantially completed, pursuant to the
foregoing (and the Original Term shall have commenced by reason thereof),
but the Landlord's Work is not in fact substantially completed, Tenant
shall not (except with Landlord's consent which consent shall not be
unreasonably withheld) be entitled to take possession of the Premises for
any purpose until the Landlord's Work is in fact substantially completed.
Any items of Landlord's Work not fully completed on the date when
Landlord's Work is in fact substantially completed shall thereafter be so
completed with reasonable diligence by Landlord. For the purposes hereof
"Tenant Delay" shall be defined as any delay in the performance of
Landlord's Work in fact caused by any action or inaction (where action by
Xxxxxx is required hereunder) by Tenant or any of its agents, employees or
contractors, including, without limitation, any delay in the performance
thereof caused by (i) any special work or long lead-time items for which
Landlord identifies in writing a specified period of Tenant Delay at the
time of approval of the plans therefor, or change orders made by Tenant
under subsection 3.1 hereof for which Xxxxxxxx identifies in writing a
specified period of Tenant Delay at the time of approval (and Tenant does
not withdraw or alter such special work, long lead-time item or change
order so as to avoid such delay), (ii) the delay of Tenant in submitting
any plans and/or specifications, supplying information required to be
supplied by Tenant, approving plans, specifications or estimates, giving
authorizations or otherwise, in each case beyond the time specified
hereunder for Tenant so to act (or where no time is specified, beyond a
reasonable period), (iii) default on the part of Tenant, (iv) any failure
to comply with Article 3 or any interference with the performance of
Landlord's Work by Xxxxxx, or any of its agents, employees, engineers,
architects or contractors.
When the dates of the beginning and end of the Original Term have been
determined, such dates shall be evidenced by a document, in the form
attached hereto as Exhibit B, which Landlord shall complete and deliver to
Tenant, and which shall be deemed conclusive unless Tenant shall notify
Landlord of any disagreement therewith within fifteen (15) days of receipt.
The term "Lease Year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first Lease Year shall begin on the
Rent Commencement Date if the Rent Commencement Date is the first day of a
calendar month; if not, then the first Lease Year shall commence upon the
first day of the calendar month next following the Rent Commencement Date.
Each succeeding Lease Year shall commence upon the anniversary date of the
first Lease Year.
2.3 Extension Option. Provided that as of the date of the notice specified
----------------
below and at the commencement of the Extended Term, Tenant is not in
default of its obligations under this Lease after notice thereof and the
expiration of any applicable grace period, Tenant shall have the right to
extend the term of this Lease for one additional period of five (5) years,
to begin immediately upon the expiration of the Original Term of this Lease
(the "Extended Term"). All of the terms, covenants and provisions of this
Lease shall apply to such
3
Extended Term except that (i) the Annual Fixed Rent Rate for such
extension period shall be the market rate at the commencement of such
Extended Term, as designated by Landlord, subject to the following
provisions of this Section 2.3, and (ii) the Letter of Credit Amount
shall be reduced to $200,000.00 during such Extended Term pursuant to the
provisions of Subsection 4.4.1.1(b) of this Lease. If Tenant shall elect
to exercise the aforesaid option, it shall do so by giving Landlord
notice in writing of its intention to do so not later than nine (9)
months prior to the expiration of the Original Term of this Lease. If
Tenant gives such notice, the extension of this Lease shall be
automatically effected without the execution of any additional documents.
The Original Term and the Extended Term are hereinafter collectively
called the "term".
Within fifteen (15) business days following such notice by Xxxxxx, Landlord
shall give written notice to Tenant setting forth Landlord's determination
of the market rate. Within ten (10) business days after Xxxxxxxx's notice,
Tenant shall (i) revoke its exercise of the aforesaid option by giving
written notice thereof to Landlord (in which case such exercise shall be
rendered ineffective and the right of extension shall expire and be of no
further force and effect), (ii) propose its determination of the market
rate by giving written notice thereof to Landlord, or (iii) accept
Landlord's determination. Failure on the part of Tenant to give such
notice of either revocation or its determination shall bind Tenant to
Landlord's determination. If Tenant proposes its determination and the
parties cannot agree upon the market rate, then the market rate shall be
submitted to arbitration as follows: market rate shall be determined by
impartial arbitrators, one to be chosen and compensated by the Landlord,
one to be chosen and compensated by Xxxxxx, and a third to be selected, if
necessary, as below provided. The unanimous written decision of the two
first chosen, without selection and participation of a third arbitrator, or
otherwise, the written decision of a majority of three arbitrators chosen
and selected as aforesaid, shall be conclusive and binding upon Landlord
and Tenant. Landlord and Tenant shall each notify the other of its chosen
arbitrator within ten (10) days following the call for arbitration and,
unless such two arbitrators shall have reached a unanimous decision within
thirty (30) days after their designation, they shall so notify the then
President of the Boston Bar Association and request him to select an
impartial third arbitrator, who shall be a real estate counselor or a
broker dealing with like types of properties, to determine market rate as
herein defined. Such third arbitrator and the first two chosen shall hear
the parties and their evidence and render their decision within thirty (30)
days following the conclusion of such hearing and notify Landlord and
Tenant thereof. Landlord and Tenant shall share equally the expense of the
third arbitrator (if any). If the dispute between the parties as to a
market rate has not been resolved before the commencement of Tenant's
obligation to pay Fixed Rent based upon such market rate, then Tenant shall
pay Fixed Rent under the Lease based upon the market rate designated by
Landlord until either the agreement of the parties as to the market rate,
or the decision of the arbitrators, as the case may be, at which time
Tenant shall pay any underpayment of Fixed Rent to Landlord, or Landlord
shall refund any overpayment of Fixed Rent to Tenant.
In any event, the Annual Fixed Rent Rate for the Extended Term shall not be
less than the Annual Fixed Rent Rate in effect immediately prior to such
Extended Term.
2.4 Termination Right. Provided that as of the date of the notice specified
-----------------
below and as of the Effective Termination Date (hereinafter defined),
Tenant is not in default of its obligations beyond any applicable grace
period under this Lease, and provided, further, that the initial Tenant
named herein shall continue to occupy all of the Premises both at the time
of the notice and as of the Effective Termination Date, Tenant shall have
the right to terminate this Lease effective as of the last day of the 3rd
Lease Year (the "Effective Termination Date"). If Tenant shall elect to
exercise such right, it shall do so by giving written notice to Landlord no
later than nine (9) months prior to the Effective Termination Date, such
notice to be accompanied by a termination payment equal to $600,000.00. It
is agreed that time is of the essence of this Section 2.4. Accordingly, if
Tenant fails timely to exercise its right to terminate the Lease on or
before the applicable exercise date specified above, Tenant shall have no
further right to terminate this Lease hereunder. This Termination Right is
personal to Xxxxxxxx.xxx, Inc. and may not be assigned. For the purposes
of this provision, amortization shall be on a straight line basis over the
original term of the Lease.
ARTICLE 3
---------
Improvements
------------
3.1 Performance of Work and Approval of Landlord's Work. Landlord shall cause
---------------------------------------------------
to be performed the base building work required by Exhibit C (the "Base
Building Work"), and the tenant improvement work to be shown in the final
construction documents developed as provided herein (the "TIW")
(collectively, the Base Building Work and the TIW are called, "Landlord's
Work"). The final construction documents, which have not been prepared as
of the date of this Lease, shall emanate from and be consistent in all
material respects with the conceptual plan attached hereto as Exhibit C-1.
Promptly after the execution hereof, Landlord shall cause to be prepared
and delivered to Tenant final construction documents for the TIW, which
shall be consistent in all material respects with Exhibit C-1. Landlord
shall use reasonable efforts to cause its contractor to give Tenant a good
faith estimate of the cost to construct the TIW as soon as possible after
delivery of such construction documents and any revisions thereto. Within
five (5) business days after receipt of such construction documents, Tenant
shall either approve such documents, which approval shall not be
unreasonably withheld so long as such documents are consistent in all
material respects with Exhibit C-1, or disapprove same in writing, setting
forth in reasonable detail Tenant's objections and Xxxxxx's proposed
modifications to address such objections. If Tenant so disapproves such
documents, Landlord shall promptly cause same to be revised to address
Tenant's objections and shall resubmit same to Tenant for approval or
disapproval in the manner set forth above until the construction documents
have been approved or deemed approved as provided herein. The failure of
Tenant to respond in writing within five (5) business days after receipt of
any documents or revised documents, as the case may be, shall constitute
approval thereof by Tenant. Immediately after approval of such documents,
Landlord shall cause its contractor to issue a firm, written bid for the
construction of the TIW and shall deliver same to Tenant. Xxxxxx agrees to
make a representative reasonably available to Landlord and its architect in
order to expedite the development of the construction documents.
All Landlord's Work shall be done in a good and workmanlike manner
employing good materials and so as to conform to all applicable building
laws. Xxxxxx agrees that Landlord may make any changes in the Base
Building Work without Tenant's approval. Landlord may make changes in the
TIW which may become reasonably necessary or advisable, other than material
changes, without approval of Tenant, provided written notice is promptly
given to Tenant. Any changes which are material in nature must first be
approved in writing by Tenant, which approval shall not be unreasonably
withheld or delayed, except for changes that affect the layout, general
appearance, or functionality of the Premises. Landlord shall use diligence
to (i) complete the on-site amenities center (i.e., the cafeteria and the
exercise/shower/locker facility), and (ii) cause Landlord's Work to be
Substantially Completed, both by the Delivery Date, but subject to Tenant
Delay and the provisions of Section 10.5 hereof. Landlord agrees that
Tenant may make changes in the TIW with the approval of Landlord, which
shall not be unreasonably withheld or delayed and the execution by Landlord
and Tenant of a Work Change Order in the form attached hereto as Exhibit D.
Tenant shall pay to Landlord a sum equal to the amount by which the costs,
including permitting fees, architectural, engineering and construction
management costs, incurred by Landlord in performing the TIW exceed the
Allowance, payment to be made as follows: (a) an amount equal to fifty
(50%) percent of the anticipated cost of the excess upon execution of this
Lease, (b) forty (40%) percent of such anticipated cost on or before the
Commencement Date and (c) the balance upon Xxxxxxxx's submission of the
final bill to Tenant.
If Landlord's Work has not been substantially completed by December 1, 1999
(the "Outside Date") and such failure is not the result of any Tenant
Delay, Tenant shall have the right to terminate this Lease by giving
written notice to Landlord within thirty (30) days following the Outside
Date, such termination to be effective at the expiration of thirty (30)
days from the giving of such notice, and if prior to the expiration of the
aforesaid thirty (30)-day period the work has not been substantially
completed, this Lease shall thereupon terminate.
3.2 Acceptance of the Premises. Tenant or its representatives may, at
--------------------------
reasonable times, enter upon the Premises during the progress of the work
to inspect the progress thereof and to determine if the work is being
performed in accordance with the requirements of Section 3.1. Tenant shall
promptly give to Landlord notices of any alleged failure by Landlord to
comply with those requirements. Landlord's Work shall be deemed approved
by Tenant when Tenant occupies the Premises for the conduct of its
business, except for (i) items of
4
Landlord's Work which are uncompleted or do not conform to Exhibit C or
Exhibit C-1 and as to which Tenant shall, in either case, have given
written notice to Landlord prior to such occupancy, (ii) latent defects
in workmanship or materials not then discoverable by a reasonable
examination and as to which Tenant shall have given Landlord written
notice within one (1) year after the Commencement Date, and (iii) a
punchlist prepared by Tenant, subject to confirmation and verification by
Landlord, based on an inspection made by the parties prior to the date on
which Tenant occupies the Premises for the conduct of its business;
provided, however, that if the Premises are not available to Tenant for
such inspection prior to the date of Tenant's occupancy, then such
punchlist shall be prepared and signed by Xxxxxx, and confirmed and
verified in writing by Landlord, within twenty (20) days after Tenant
first occupies the Premises. Landlord shall forthwith correct all defects
noted on such punchlist within thirty (30) days thereafter, except for
items which by their nature cannot be corrected within said 30-day
period, provided that Landlord shall use diligence to correct such items
expeditiously. A certificate of completion by a licensed architect or
registered engineer shall be conclusive evidence that Xxxxxxxx's Work has
been completed except for items stated in such certificate to be
incomplete or not in conformity with Exhibit C and Exhibit C-1.
3.3 Pre-Commencement Entry by Xxxxxx. With Landlord's prior consent, which
--------------------------------
shall not be unreasonably withheld, Tenant shall have the right to enter
the Premises, during normal business hours and without payment of rent, but
otherwise subject to all of the terms and conditions of the Lease,
including without limitation, the provisions of subsection 6.1.5, to
install Tenant's data and telecommunications wiring and equipment, so long
as such work does not interfere with the performance of Xxxxxxxx's work.
ARTICLE 4
---------
Rent
----
4.1 The Fixed Rent. Commencing as of the Rent Commencement Date, Tenant
--------------
covenants and agrees to pay rent to Landlord at the Original Address of
Landlord or at such other place or to such other person or entity as
Landlord may by notice in writing to Tenant from time to time direct, at
the Annual Fixed Rent Rate, in equal installments at the Monthly Fixed Rent
Rate (which is 1/12th of the Annual Fixed Rent Rate), in advance, on the
first day of each calendar month included in the term; and for any portion
of a calendar month following the Rent Commencement Date, a prorated part
thereof at the rate for the first lease year payable in advance for such
portion.
4.2 Additional Rent. Tenant covenants and agrees to pay, as Additional Rent,
---------------
insurance costs, utility charges, personal property taxes and its pro rata
share of increases in operating costs with respect to the Premises as and
to the extent provided in this Section 4.2 as follows:
4.2.1 Real Estate Taxes. If Taxes (as hereinafter defined) for any Tax
-----------------
Year during the term shall exceed Base Taxes, Tenant shall
reimburse Landlord, as additional rent, for Tenant's Percentage of
such excess (such amount hereinafter referred to as "Tax Excess").
Tenant shall remit to Landlord, on the first day of each calendar
month included in the term, estimated payments on account of Tax
Excess, such monthly amounts to be sufficient to provide Landlord,
by the time real estate tax payments are due and payable to any
governmental authority responsible for collection of same, a sum
equal to the Tax Excess, as reasonably estimated by Landlord from
time to time on the basis of the most recent tax data available.
If the total of such monthly remittances for any Tax Year is
greater than the actual Tax Excess for such Tax year, Landlord
shall promptly pay to Tenant, or credit against the next accruing
payments to be made by Tenant pursuant to this subsection 4.2.1,
the difference; if the total of such remittances is less than the
actual Tax Excess for such Tax Year, Tenant shall pay the
difference to Landlord at least ten (10) days prior to the date or
dates within such Tax Year that any Taxes become due and payable
to the governmental authority (but in any event no earlier than
ten (10) days following a written notice to Tenant, which notice
shall set forth the manner of computation of Tax Excess).
If, after Tenant shall have made reimbursement to Landlord
pursuant to this subsection 4.2.1, Landlord shall receive a refund
of any portion of Taxes paid by Tenant with respect to any Tax
Year during the term hereof as a result of an abatement of such
Taxes by legal proceedings, settlement or otherwise (without
Landlord having any obligation to undertake any such proceedings),
Landlord shall promptly pay to Tenant, or credit against the next
accruing payments to be made by Tenant pursuant to this subsection
4.2.1, the Tenant's Percentage of the refund (less the
proportional, pro rata expenses, including attorneys' fees and
appraisers' fees, incurred in connection with obtaining any such
refund), as relates to Tax Excess paid by Tenant to Landlord with
respect to any Tax Year for which such refund is obtained.
In the event this Lease shall commence, or shall end (by reason of
expiration of the term or earlier termination pursuant to the
provisions hereof), on any date other than the first or last day of
the Tax Year, or should the Tax Year or period of assessment of real
estate taxes be changed or be more or less than one (1) year, as the
case may be, then the amount of Tax Excess which may be payable by
Tenant as provided in this subsection 4.2.1 shall be appropriately
apportioned and adjusted.
The term "Taxes" shall mean all taxes, assessments, betterments and
other charges and impositions (including, but not limited to, fire
protection service fees and similar charges) levied, assessed or
imposed at any time during the term by any governmental authority
upon or against the Property, or taxes in lieu thereof, and
additional types of taxes to supplement real estate taxes due to
legal limits imposed thereon. If, at any time during the term of
this Lease, any tax or excise on rents or other taxes, however
described, are levied or assessed against Landlord with respect to
the rent reserved hereunder, either wholly or partially in
substitution for, or in addition to, real estate taxes assessed or
levied on the Property, such tax or excise on rents shall be
included in Taxes; however, in any event Taxes shall not include
franchise, estate, gift, inheritance, succession, capital levy,
transfer, income or excess profits taxes assessed on Landlord or
with respect to the Property, or any late payment penalties or
interest, other than interest paid on assessments paid in
installments. With respect to betterment assessments and other
charges and impositions, there shall only be included in "Taxes"
amounts equal to the installments which would be payable had
Landlord paid such assessments, other charges and impositions over
the longest period permitted by law. Taxes shall include any
estimated payment made by Landlord on account of a fiscal tax
period for which the actual and final amount of taxes for such
period has not been determined by the governmental authority as of
the date of any such estimated payment, subject to adjustment upon
such final determination.
4.2.2 Personal Property Taxes. Tenant shall pay all taxes charged,
-----------------------
assessed or imposed upon the personal property of Tenant in or upon
the Premises.
4.2.3 Operating Costs. If, during the term hereof, Operating Costs (as
---------------
hereinafter defined) incurred by Landlord in any calendar year
shall exceed Base Operating Costs, Tenant shall reimburse
Landlord, as additional rent, for Tenant's Percentage of any such
excess (such amount being hereinafter referred to as the
"Operating Costs Excess"). Tenant shall remit to Landlord, on the
first day of each calendar month, estimated payments on account of
Operating Costs Excess, such monthly amounts to be sufficient to
provide Landlord, by the end of the calendar year, a sum equal to
the Operating Costs Excess, as reasonably estimated by Landlord
from time to time, but in no event more than two times in any
calendar year. If, at the expiration of the year in respect of
which monthly installments of Operating Costs Excess shall have
been made as aforesaid, the total of such monthly remittances is
greater than the actual Operating Costs Excess for such year,
Landlord shall promptly pay to Tenant, or credit against the next
accruing payments to be made by Tenant pursuant to this subsection
4.2.3, the difference; if the total of such remittances is less
than the Operating Costs Excess for such year, Tenant shall pay
the difference to Landlord within twenty (20) days from the date
Landlord shall furnish to Tenant an itemized statement of the
Operating Costs Excess, showing all Operating Costs in reasonable
detail and the computation of the Operating Costs Excess,
prepared, allocated and computed in accordance with generally
accepted accounting
5
principles. Tenant shall have the right, upon reasonable notice
and during business hours, to examine at Xxxxxxxx's office, within
six (6) months following receipt of a statement of Operating Costs
Excess, Xxxxxxxx's books and records respecting such statement. If
such examination discloses any errors, appropriate adjustments
shall be made. Any reimbursement for Operating Costs due and
payable by Tenant with respect to periods of less than twelve (12)
months shall be equitably prorated.
The term "Operating Costs" shall mean all costs and expenses
incurred for the operation, cleaning, maintenance, repair and
upkeep of the Property, including, without limitation, all costs
of maintaining and repairing the Property (including snow removal,
landscaping and grounds maintenance, parking lot operation and
maintenance, security, operation and repair of heating and air-
conditioning equipment, elevators, lighting and any other Building
equipment or systems) and of all repairs and replacements (other
than repairs or replacements for which Landlord has received full
reimbursement from contractors, other tenants of the Building or
from others) necessary to keep the Property in good working order,
repair, appearance and condition; all costs, including material
and equipment costs, for cleaning and janitorial services to the
Building (including window cleaning of the Building); all costs of
any reasonable insurance carried by Landlord relating to the
Property; all costs related to provision of heat (including oil,
electric, steam and/or gas), air-conditioning, and water
(including sewer charges) and other utilities to the Building
(exclusive of reimbursement to Landlord for any of same received
as a result of direct billing to any tenant of the Building);
payments under all service contracts relating to the foregoing;
all compensation, fringe benefits, payroll taxes and workmen's
compensation insurance premiums related thereto with respect to
any employees of Landlord or its affiliates engaged in security
and maintenance of the Property; attorneys' fees and disbursements
(exclusive of any such fees and disbursements incurred in tax
abatement proceedings or the preparation of leases) and auditing
and other professional fees and expenses; and a management fee.
There shall not be included in such Operating Costs: (a) brokerage
fees (including rental fees) related to the operation or leasing
of the Building; (b) interest and depreciation charges incurred on
the Property; (c) expenditures made by Tenant with respect to (i)
cleaning, maintenance and upkeep of the Premises, and (ii) the
provision of electricity to the Premises;. (d) any cost or expense
to the extent to which Landlord is paid or reimbursed (other than
as a payment for Operating Costs), including but not necessarily
limited to, (1) work or service performed for any tenant
(including Tenant) at such tenant's cost, (2) the cost of any item
for which Landlord is paid or reimbursed by insurance proceeds,
warranties, service contracts, condemnation proceeds or otherwise,
(3) increased insurance or taxes assessed specifically to any
tenant of the Building, and (4) charges (including applicable
taxes) for heat, air conditioning, electricity, water or other
utilities for which Landlord is entitled to direct reimbursement
from any tenant; (e) the cost of operating and maintaining any
special facilities, such as an observatory, luncheon club,
conference center or other similar facilities except that such
costs with respect to a cafeteria, athletic club, locker room or
showers shall be includible in Operating Costs (but with any
reimbursement to Landlord by an operator thereof for such costs
excluded therefrom); (f) the cost of correcting defects in the
design or construction of the Building ; (g) salaries, bonuses and
other employment costs of any employee of Landlord above the level
of Building Manager; (h) taxes, operating costs or the cost of any
work or services performed for any facility other than the
Building; (i) any fees, costs, and commissions incurred in
procuring or attempting to procure other tenants including, but
not necessarily limited to brokerage commissions, finders fees,
attorneys' fees and expenses, entertainment costs, travel expenses
and advertising and production costs; (j) any cost included in
Operating Costs representing an amount paid to a person, firm,
corporation or other entity related to Landlord which is in excess
of the amount which would have been paid on an arms length basis
in the absence of such relationship; (k) any costs of painting or
decorating of any space for tenants or other occupants of the
Building; (l) Landlord's general overhead except as it relates
specifically to the actual management of the Building; (m)
attorneys' fees, costs and other expenditures incurred in
connection with leasing of premises in the Building, leasing
disputes with tenants or occupants of the Building or with other
third persons and/or claims by such tenants or occupants or third
parties; (n) the cost of acquiring sculptures, paintings and other
objects of art other than normally acquired for decoration of
similar buildings; (o) the cost of curing any violation of any
law, ordinance or regulation in effect as of the Commencement Date
of this Lease or any cost of remediating any environmental
condition existing as of the Commencement Date, unless such
condition was caused by Tenant; (p) any late fees, fines or
penalties incurred by Landlord; (q) costs that are capital in
nature, except for an annual charge-off for capital expenditures
(defined below); or (r) costs incurred in performing work or
furnishing services for any tenant (including Tenant), whether at
such tenant's or Landlord's expense, to the extent that such work
or service is in excess of any work or service that Landlord is
obligated to furnish to Tenant at Landlord's expense (e.g., if
Landlord agrees to provide extra cleaning to another tenant, the
cost thereof would be excluded since Landlord is not obligated to
furnish extra cleaning to Tenant).
If, during the term of this Lease, Landlord shall replace any
capital items or make any capital expenditures in order to, in
either case, comply with laws in effect after the Commencement
Date, effect savings in Operating Costs or replace worn-out items
(collectively called "capital expenditures") the total amount of
which is not properly included in Operating Costs for the calendar
year in which they were made, there shall nevertheless be included
in Operating Costs for each calendar year in which and after such
capital expenditure is made the annual charge-off of such capital
expenditure. (Annual charge-off shall be determined by (i)
dividing the original cost of the capital expenditure by the
number of years of useful life thereof [The useful life shall be
reasonably determined by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time
of acquisition of the capital item.]; and (ii) adding to such
quotient an interest factor computed on the unamortized balance of
such capital expenditure based upon an interest rate reasonably
determined by Landlord as being the interest rate then being
charged for long-term mortgages by institutional lenders on like
properties within the locality in which the Building is located.)
Provided, further, that if Landlord reasonably concludes on the
basis of engineering estimates that a particular capital
expenditure will effect savings in Operating Costs and that such
annual projected savings will exceed the annual charge-off of
capital expenditure computed as aforesaid, then and in such
events, the annual charge-off shall be determined by dividing the
amount of such capital expenditure by the number of years over
which the projected amount of such savings shall fully amortize
the cost of such capital item or the amount of such capital
expenditure; and by adding the interest factor, as aforesaid.
If during any portion of any year for which Operating Costs are
being computed, the Building was not fully occupied by tenants or
if not all of such tenants were paying fixed rent or if Landlord
was not supplying all tenants with the services being supplied
hereunder, actual Operating Costs incurred shall be reasonably
extrapolated by Landlord to the estimated Operating Costs that
would have been incurred if the Building were fully occupied by
tenants and all such tenants were then paying fixed rent or if
such services were being supplied to all tenants, and such
extrapolated amount shall, for the purposes of this Section 4.2.3,
be deemed to be the Operating Costs for such year.
4.2.4 Insurance. Tenant shall, at its expense, as Additional Rent, take
---------
out and maintain throughout the term the following insurance
protecting Landlord:
4.2.4.1 Comprehensive liability insurance naming Landlord,
Tenant, and Xxxxxxxx's managing agent and any mortgagee
of which Xxxxxx has been given notice as insureds or
additional insureds and indemnifying the parties so named
against all claims and demands for death or any injury to
person or damage to property which may be claimed to have
occurred on the Premises (or the Property, insofar as
used by customers, employees, servants or invitees of the
Tenant), in amounts which shall, at the beginning of the
term, be at least equal to the limits set forth in
Section 1.1, and, which, from time to time during the
term, shall be for such higher limits, if any, as are
customarily carried in the area in which the Premises are
located on property similar to the Premises and used for
similar purposes, and uniformly required of all similarly
situated tenants of the Property; and workmen's
compensation insurance with statutory limits covering all
of Tenant's employees working on the Premises.
6
4.2.4.2 Fire insurance with the usual extended coverage
endorsements covering all Tenant's furniture,
furnishings, fixtures and equipment. At Tenant's
election, Tenant shall be permitted to self-insure this
risk so long as Tenant maintains insurance coverage
protecting Tenant and Landlord, as an additional insured,
against loss of rent in an amount equal to at least all
the Fixed Rent and Additional Rent payable for one year
under Article 4.
4.2.4.3 All such policies shall be obtained from responsible
companies qualified to do business and in good standing
in Massachusetts, which companies and the amount of
insurance allocated thereto shall be subject to
Landlord's reasonable approval, which shall not be
unreasonably withheld or delayed. Xxxxxx agrees to
furnish Landlord with certificates evidencing all such
insurance prior to the beginning of the term hereof and
evidencing renewal thereof at least thirty (30) days
prior to the expiration of any such policy. Each such
policy shall be non-cancelable with respect to the
interest of Landlord without at least ten (10) days'
prior written notice thereto. In the event provision for
any such insurance is to be by a blanket insurance
policy, the policy shall allocate a specific and
sufficient amount of coverage to the Premises.
4.2.4.4 All insurance which is carried by either party with
respect to the Building, Premises or to furniture,
furnishings, fixtures, or equipment therein or
alterations or improvements thereto, whether or not
required, shall include provisions which either designate
the other party as one of the insured or deny to the
insurer acquisition by subrogation of rights of recovery
against the other party to the extent such rights have
been waived by the insured party prior to occurrence of
loss or injury, insofar as, and to the extent that, such
provisions may be effective without making it impossible
to obtain insurance coverage from responsible companies
qualified to do business in the state in which the
Premises are located (even though extra premium may
result therefrom). In the event that extra premium is
payable by either party as a result of this provision,
the other party shall reimburse the party paying such
premium the amount of such extra premium. If at the
request of one party, this non-subrogation provision is
waived, then the obligation of reimbursement shall cease
for such period of time as such waiver shall be
effective, but nothing contained in this subsection shall
derogate from or otherwise affect releases elsewhere
herein contained of either party for claims. Each party
shall be entitled to have certificates of any policies
containing such provisions. Each party hereby waives all
rights of recovery against the other for loss or injury
against which the waiving party is protected, or would
have been protected if the party suffering such loss had
maintained casualty insurance in the full replacement
value of the damaged or destroyed property pursuant to
the terms of this Lease (whether or not such party
carried the requisite insurance coverages), by insurance
containing said provisions, or for loss or injury against
which such party self-insures or maintains a high
deductible, reserving, however, any rights with respect
to any excess of loss or injury over the amount recovered
by such insurance. Tenant shall not acquire as insured
under any insurance carried on the Premises any right to
participate in the adjustment of loss or to receive
insurance proceeds and agrees upon request promptly to
endorse and deliver to Landlord any checks or other
instruments in payment of loss in which Tenant is named
as payee.
4.2.5 Utilities. Tenant shall pay to Landlord all charges for electricity
---------
supplied by Landlord and separately check metered (which shall include
and be limited to electricity for lights, outlets and VAV boxes).
Except as otherwise provided in Article 5, it is understood and agreed
that Tenant shall make its own arrangements for the installation or
provision at Tenant's expense of all utilities provided to the
Premises other than utilities or services supplied by Landlord
pursuant to Subsections 5.1.1, 5.1.2, and 5.1.3, and that Landlord
shall be under no obligation to furnish any other utilities to the
Premises and shall not be liable for any interruption or failure in
the supply of any utilities to the Premises. The utilities and
services described in Subsections 5.1.1 and 5.1.3 shall be provided
without additional charge to Tenant, other than is expressly set forth
in Subsection 4.2.3.
4.3 Late Payment of Rent. If any installment of rent is paid more than three
--------------------
(3) days after the date the same was due, and if on a prior occasion in the
twelve (12) month period prior to the date such installment was due an
installment of rent was paid after the same was due, then Tenant shall pay
Landlord a late payment fee equal to five (5%) percent of the overdue
payment.
4.4 Letter of Credit. The performance of Tenant's obligations under this Lease
----------------
shall be secured by a letter of credit or a cash security deposit
throughout the term hereof in accordance with and subject to the following
terms and conditions:
4.4.1 Amount of Letter of Credit. Concurrently with Tenant's execution
--------------------------
and delivery of this Lease, Tenant shall either (i) deliver to
Landlord an irrevocable standby letter of credit (the "Original
Letter of Credit") which shall be (A) in the form of Exhibit F
attached to this Lease (the "Form LC"), (B) issued by Sanwa Bank
of California or any other bank reasonably satisfactory to
Landlord upon which presentment may be made in Boston,
Massachusetts, (C) in the amount equal to the Letter of Credit
Amount, and (D) for a term of at least 1 year, subject to the
provisions of Section 4.4.2 below, or (ii) deposit with Landlord
cash in the amount of the Letter of Credit Amount, which Landlord
shall hold in accordance with Section 4.4.5 below, and shall have
the same rights with respect thereto under said Section 4.4.5 as
if such cash were Security Proceeds (defined in said Section
4.4.5). Tenant may substitute the Original Letter of Credit for
such cash at any time, and Landlord shall promptly refund such
cash to Tenant upon receipt of the Original Letter of Credit. The
Original Letter of Credit, any Additional Letters(s) of Credit and
Substitute Letter(s) of Credit are referred to herein as the
"Letter of Credit."
4.4.1.1 Annual Reduction; Tenant's Election (a) Provided Tenant is
-----------------------------------
not in default and has not previously been in default of
any of its obligations under this Lease in each case
after notice thereof and the expiration of any applicable
cure periods more than two (2) times in any twelve-month
period (but in no event more than four (4) times during
the term) at the time of reduction hereunder, the Letter
of Credit Amount for each of the 2nd through the 5th
Lease Years shall be reduced at the beginning of each of
the 2nd through 5th Lease Years by an amount equal to the
Annual Reduction Amount, provided, however, that Tenant
shall not be entitled to reduce the Letter of Credit by
the Annual Reduction Amount if Tenant elects to reduce
the Letter of Credit Amount pursuant to the provisions of
subparagraph (b) below. For the purpose hereof, the
"Annual Reduction Amount" shall be $150,000.00.
(b) On the condition that Tenant is a publicly-traded
company at the time of the notice required by this
subparagraph (b), Tenant may elect, by written notice to
Landlord on or before the first day of the 2nd Lease
Year, to have the Letter of Credit Amount reduced to
$400,000.00, if Tenant has a net income of $1,000,000.00
for the preceding fiscal year of Tenant and Tenant
provides Landlord with an audited annual report reporting
such net income, and provided Tenant is not in default
after notice thereof and expiration of the applicable
cure period under this Lease at the time of its election
or at the time of the reduction hereunder. If Xxxxxx
makes an election to reduce the Letter of Credit Amount
pursuant to this subparagraph (b), Tenant shall no longer
be entitled to reduce the Letter of Credit Amount by the
Annual Reduction Amount. Notwithstanding the foregoing,
if Tenant duly and timely exercises its right pursuant to
Section 2.3 hereof to extend the Original Term, the
Letter of Credit Amount shall be reduced to $200,000.00
as of the commencement of the Extended Term, provided
that Tenant is not in default of any of its obligations
under this Lease beyond all applicable notice and cure
periods as of the commencement of such Extended Term, and
provided further, that Landlord is not obligated to make
any contributions or provide any tenant improvement
allowances for the benefit of Tenant at the commencement
of the Extended Term.
4.4.2 Renewal of Letter of Credit. Each Letter of Credit shall be
---------------------------
automatically renewable in accordance with the second to last
paragraph of the Form LC; provided however, that Tenant shall be
required to deliver to Landlord a new letter of credit (a
"Substitute Letter of Credit") satisfying the requirements for the
Original Letter of Credit under Section 4.4.1 on or before
7
the date 30 days prior to the expiration of the term of the Letter
of Credit then in effect, if the issuer of such Letter of Credit
gives notice of its election not to renew such Letter of Credit
for any additional period pursuant thereto.
4.4.3 Draws to Cure Defaults. If the Fixed Rent or Additional Rent
----------------------
payable hereunder shall be overdue and unpaid or should Landlord
make payments on behalf of the Tenant, or Tenant shall fail to
perform any of the terms of this Lease in all cases after notice
thereof and the expiration of all applicable cure periods, then
Landlord shall have the right, at any time thereafter to draw down
from the Letter of Credit the amount necessary to cure such
default. In the event of any such draw by the Landlord, Tenant
shall, within 30 days of written demand therefor, deliver to
Landlord an additional Letter of Credit ("Additional Letter of
Credit") satisfying the requirements for the Original Letter of
Credit, except that the amount of such Additional Letter of Credit
shall be the amount of such draw.
4.4.4 Draws to Pay Damages. In addition, if (i) this Lease shall have
--------------------
been terminated as a result of Tenant's default under this Lease
after notice thereof and the expiration of the applicable cure
period, and/or (ii) this Lease shall have been rejected in a
bankruptcy or other creditor-debtor proceeding, then Landlord
shall have the right at any time thereafter to draw down from the
Letter of Credit an amount sufficient to pay any and all damages
payable by Tenant on account of such termination or rejection, as
the case may be, pursuant to Article 8 hereof. In the event of
bankruptcy or other creditor-debtor proceeding against Tenant, all
proceeds of the Letter of Credit shall be deemed to be applied
first to the payment of rent and other charges due Landlord for
all periods prior to the filing of such proceedings.
4.4.5 Draws for Failure to Deliver Substitute Letter of Credit. If
---------------------------------------------------------
Tenant fails timely to deliver to Landlord a Substitute Letter of
Credit, then Landlord shall have the right, at any time thereafter
while such failure continues, without giving any further notice to
Tenant, to draw down the Letter of Credit and to hold the proceeds
thereof ("Security Proceeds") in a bank account in the name of
Landlord, which may be withdrawn and applied by Landlord under the
same circumstances and for the same purposes as if the Security
Proceeds were a Letter of Credit. If Tenant thereafter delivers to
Landlord such Substitute Letter of Credit, Landlord shall promptly
thereafter return such Security Proceeds to Tenant, less the
actual costs and expenses incurred by Landlord in drawing down the
Letter of Credit as aforesaid. Upon any such application of
Security Proceeds by Landlord, Tenant shall, within 30 days of
written demand therefor, deliver to Landlord an Additional Letter
of Credit in the amount of Security Proceeds so applied. Security
Proceeds paid by Tenant to Landlord pursuant to Section 4.4.7 in
substitution for the Letter of Credit shall be held by Landlord in
a bank account in Landlord's name and interest earned thereon
shall be disbursed to Tenant on a quarterly basis so long as
Tenant is not in default after notice thereof and expiration of
applicable cure periods hereunder.
4.4.6 Transferability. Landlord shall be entitled to transfer its
---------------
beneficial interest under the Letter of Credit or any Security
Proceeds only in connection with a transfer of Landlord's interest
in the Property, and the Letter of Credit shall specifically state
that it is transferable by Landlord, its successors and assigns.
Upon any transfer of Landlord's interest in the Property, Landlord
shall simultaneously transfer its interest under the Letter of
Credit and/or Security Proceeds to the transferee of the Property.
All costs and expenses incurred by Landlord to effect such
transfer shall be paid by Tenant upon demand therefor.
4.4.7 Substitution of Cash. Provided that Tenant is not in default beyond
--------------------
expiration of applicable cure periods under this Lease, Tenant
shall have the right to substitute cash in the amount of the
Letter of Credit Amount for the Letter of Credit at any time after
the Rent Commencement Date. In such event, upon receipt of cash in
the amount of the Letter of Credit Amount, Landlord shall hold
such cash in accordance with Section 4.4.5, shall have the same
rights with respect thereto thereunder as if such cash were
Security Proceeds, and shall promptly return the Letter of Credit
to Tenant.
4.4.8 Return of Letter of Credit or Security Proceeds at End of Term.
--------------------------------------------------------------
Within 30 days after the expiration or earlier termination of the
term, to the extent Landlord has not previously drawn upon any
Letter of Credit or Security Proceeds held by Landlord, Landlord
shall return the same to Tenant provided that Tenant is not then
in default of any of its obligations under this Lease.
ARTICLE 5
---------
Landlord's Covenants
--------------------
5.1 Affirmative Covenants. Landlord covenants with Tenant:
---------------------
5.1.1 Heat and Air-Conditioning. To furnish to the Premises heat and air-
-------------------------
conditioning (reserving the right, at any time, to change energy
or heat sources) sufficient to maintain the Premises and all
common areas of the Building at comfortable temperatures (subject
to all federal, state, and local regulations relating to the
provision of heat), during the hours of 7:00 a.m. to 6:00 p.m. on
Mondays through Fridays and 8:00 a.m. to 1:00 p.m. on Saturdays,
except for the following holidays on which the Building is closed:
New Year's Day, Washington's Birthday, Patriot's Day, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veteran's Day,
Thanksgiving, Christmas and Xxxxxx Xxxxxx Xxxx Day. If Tenant
requires heat or air-conditioning other than on the days or during
the hours listed above, Landlord shall furnish the same upon
Tenant's reasonable advance request therefor and Tenant shall pay
Landlord, as additional rent, a commercially reasonable charge for
such after-hours heat or air-conditioning, as determined by
Landlord.
5.1.2 Electricity. To furnish to the Premises, separately metered by
-----------
check meter and at the direct expense of Tenant as hereinabove
provided, reasonable electricity for Tenant's Permitted Uses,
which service shall be at least the same level of power provided
to other tenants in the Building having uses similar to Tenant. If
Tenant shall require electricity in excess of such reasonable
quantities for Tenant's Permitted Uses and if (i) in Landlord's
reasonable judgment, Landlord's facilities are inadequate for such
excess requirements, or (ii) such excess use shall result in an
additional burden on the Building utilities systems and additional
cost to Landlord on account thereof, as the case may be, (a)
Tenant shall, upon demand, reimburse Landlord for such additional
cost, as aforesaid, or (b) Landlord, upon written request, and at
the sole cost and expense of Tenant, will furnish and install such
additional wire, conduits, feeders, switchboards and appurtenances
as reasonably may be required to supply such additional
requirements of Tenant (if electricity therefor is then available
to Landlord), provided that the same shall be permitted by
applicable laws and insurance regulations and shall not cause
permanent damage or injury to the Building or cause or create a
dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs. Landlord, at Tenant's expense
and upon Xxxxxx's request, shall purchase and install all
replacement lightbulbs and lamps of types generally commercially
available used in the Premises.
5.1.3 Cleaning; Water. To provide cleaning to the Premises and the common
---------------
areas in accordance with the cleaning and janitorial standards set
forth in Exhibit G attached hereto; and to furnish hot and cold
water for ordinary cleaning, kitchenette, lavatory and toilet
facilities. If Tenant desires additional hot water in the
Premises, Tenant, at its sole cost and expense, may install a hot
water heater in the Premises. Tenant shall be solely responsible
for maintenance and repair of any such hot water heater and for
any and all costs associated therewith .
5.1.4 Fire Alarm. To maintain fire alarm systems within the Building.
----------
5.1.5 Repairs. Except as otherwise expressly provided herein, to make
-------
such repairs and replacements to the roof, exterior walls, floor
slabs and other structural components of the Building, to the
common areas and facilities of the Building and to the plumbing,
electrical, heating, ventilating and air-conditioning systems of
the Building as may be necessary and in each
8
case, to keep them in good repair and condition (exclusive of
equipment installed by Tenant and except for those repairs
required to be made by Tenant pursuant to Section 6.1.3 hereof and
repairs or replacements occasioned by any act or negligence of
Tenant, its servants, agents, customers, contractors, employees,
invitees, or licensees).
5.1.6 Landscaping; Snow Removal. To provide landscaping, snow and ice
-------------------------
removal and grounds maintenance services to the Property
(including parking areas and walkways) consistent with those
services provided by landlords of comparable office buildings in
the area.
5.1.7 On-site Amenities. To cause to be operated on the Property an on-
-----------------
site cafeteria in accordance with the terms and provisions of an
operating agreement entered into between Landlord and the provider
of such cafeteria services, it being expressly understood that
said provider has the sole right to determine the hours of
operation of the cafeteria pursuant to the terms of the aforesaid
operating agreement; and to operate the exercise facility during
the normal Building hours specified above.
5.1.8 Access. Tenant shall have access to the Premises twenty-four (24)
------
hours a day, seven (7) days a week, subject to Landlord's reasonable
security requirements for the Building.
5.1.9 Y2K Compliance. Landlord shall, at its expense, diligently take the
--------------
necessary actions to prevent the occurrence of any failure of
building services which Landlord is obligated by the terms of this
Lease to provide to Tenant resulting from the inability of
computer systems controlling such services to correctly recognize
dates containing the year 2000.
5.2 Interruption. Landlord shall be under no responsibility or liability for
------------
failure or interruption of any of the above-described services, repairs or
replacements caused by breakage, accident, strikes, repairs, inability to
obtain supplies, labor or materials, or for any other causes beyond the
control of the Landlord, and in no event for any indirect or consequential
damages to Tenant; and failure or omission on the part of the Landlord to
furnish any of same for any of the reasons set forth in this paragraph
shall not be construed as an eviction of Tenant, actual or constructive,
nor entitle Tenant to an abatement of rent, nor render the Landlord liable
in damages, nor release Tenant from prompt fulfillment of any of its
covenants under this Lease. However, in each instance of failure or
interruption, Landlord shall use diligent efforts in good faith to remedy
the cause thereof.
5.3 Outside Services. In the event Tenant wishes to provide outside services
----------------
for the Premises over and above those services to be provided by Landlord
as set forth herein, Tenant shall first obtain the prior written approval
of Landlord, which approval shall not be unreasonably withheld, for the
installation and/or utilization of such services ("Outside services" shall
include, but shall not be limited to, cleaning services, television, so-
called "canned music" services, security services, catering services and
the like.) In the event Landlord approves the installation and/or
utilization of such services, such installation and utilization shall be at
Tenant's sole cost, risk and expense.
5.4 Landlord's Insurance. To take out and maintain throughout the term all-
--------------------
risk casualty insurance in commercially reasonable amounts, with
endorsements for risks customarily insured against by landlords of
comparable buildings in the vicinity of the Building.
ARTICLE 6
---------
Tenant's Additional Covenants
-----------------------------
6.1 Affirmative Covenants. Tenant covenants at all times during the term and
---------------------
for such further time (prior or subsequent thereto) as Tenant occupies the
Premises or any part thereof:
6.1.1 Perform Obligations. To perform promptly all of the obligations of
-------------------
Tenant set forth in this Lease; and to pay when due the Fixed Rent
and Additional Rent and all charges, rates and other sums which by
the terms of this Lease are to be paid by Xxxxxx.
6.1.2 Use. To use the Premises only for the Permitted Uses, and from time
---
to time to procure all licenses and permits necessary therefor, at
Tenant's sole expense (but excluding licenses and permits required
generally for the use and occupancy of the Building and the
initial certificate of occupancy for the Premises). With respect
to any licenses or permits for which Tenant may apply, pursuant to
this subsection 6.1.2 or any other provision hereof, Tenant shall
furnish Landlord copies of applications therefor on or before
their submission to the governmental authority.
6.1.3 Repair and Maintenance. To maintain the Premises in neat order and
----------------------
condition and to perform all routine and ordinary repairs to the
Premises and to any plumbing, heating, electrical, ventilating and
air-conditioning systems located within the Premises and installed
by Tenant such as are necessary to keep them in good working
order, appearance and condition, as the case may require,
reasonable use and wear thereof and damage by fire or by
unavoidable casualty only excepted; to keep all glass in windows
and doors of the Premises (except glass in the exterior walls of
the Building) whole and in good condition with glass of the same
quality as that injured or broken; and to make as and when needed
as a result of misuse by, or the negligence or intentional
misconduct of Tenant or Tenant's servants, employees, agents,
invitees or licensees, all repairs necessary, which repairs and
replacements shall be in quality and class equal to the original
work. (Landlord, upon default of Tenant hereunder after notice
thereof and, except in case of emergency, expiration of the
applicable cure period, may elect, at the expense of Tenant, to
perform all such maintenance and to make any such repairs or to
repair any damage or injury to the Building or the Premises caused
by moving property of Tenant in or out of the Building, or by
installation or removal of furniture or other property, or by
misuse by, or neglect, or improper conduct of, Tenant or Tenant's
servants, employees, agents, contractors, customers, patrons,
invitees, or licensees.)
6.1.4 Compliance with Law. To make all repairs, alterations, additions or
-------------------
replacements to the Premises required by any law or ordinance or
any order or regulation of any public authority on account of
Tenant's particular use of the Premises or because of work
performed by or on behalf of Tenant; to keep the Premises equipped
with all safety appliances so required; and to comply with the
orders and regulations of all governmental authorities with
respect to zoning, building, fire, health and other codes,
regulations, ordinances or laws applicable to the Tenant's
particular use of the Premises, except that Tenant may defer
compliance so long as the validity of any such law, ordinance,
order or regulations shall be contested by Tenant in good faith
and by appropriate legal proceedings, if Tenant first gives
Landlord appropriate assurance or security against any loss, cost
or expense on account thereof. Notwithstanding the foregoing, with
respect to any repair, alteration or replacement that is required
by any law, ordinance, order or regulation applicable to office
buildings generally and not required on account of Tenant's
particular use of the Premises, then Landlord shall make such
repair, alteration or replacement.
6.1.5 Indemnification. To save harmless, exonerate and indemnify
---------------
Landlord, its agents (including, without limitation, Landlord's
managing agent) and employees (such agents and employees being
referred to collectively as the "Landlord Related Parties") from
and against any and all claims, liabilities or penalties asserted
by or on behalf of any person, firm, corporation or public
authority on account of injury, death, damage or loss to person or
property in or upon the Premises and the Property arising out of
the use or occupancy of the Premises by Tenant or by any person
claiming by, through or under Tenant (including, without
limitation, all patrons, employees and customers of Tenant), or
arising out of any delivery to or service supplied to the
Premises, or on account of or based upon anything whatsoever done
on the Premises, except to the extent any of the same was caused
by the gross negligence or willful misconduct of Landlord or the
Landlord Related Parties. In respect of all of the foregoing,
Tenant shall indemnify Landlord and the Landlord Related Parties
from and
9
against all costs, expenses (including reasonable attorneys'
fees), and liabilities incurred in or in connection with any such
claim, action or proceeding brought thereon; and, in case of any
action or proceeding brought against Landlord or the Landlord
Related Parties by reason of any such claim, Tenant, upon notice
from Landlord and at Xxxxxx's expense, shall resist or defend such
action or proceeding and employ counsel therefor reasonably
satisfactory to Landlord.
Xxxxxxxx agrees to indemnify and hold Tenant harmless from and
against any and all claims, liability, damage, expense and causes
of action arising from injury, death, damage or loss to person or
property during the term to person or property sustained in the
common areas of the Building, except if the same was caused by the
negligence, fault or misconduct of Tenant, its agents, employees
or customers.
6.1.6 Landlord's Right to Enter. To permit Landlord and its agents to
-------------------------
enter into and examine the Premises at reasonable times and to
show the Premises, and to make repairs to the Premises required or
permitted hereunder, and, during the last six (6) months prior to
the expiration of this Lease, to keep affixed in suitable places
notices of availability of the Premises. Landlord shall use
reasonable efforts to minimize disruption of Tenant's business in
the Premises whenever Landlord exercises its rights hereunder.
6.1.7 Personal Property at Tenant's Risk. All of the furnishings,
----------------------------------
fixtures, equipment, effects and personal property of every kind,
nature and description of Tenant and of all persons claiming by,
through or under Tenant which, during the continuance of this
Lease or any occupancy of the Premises by Tenant or anyone
claiming under Tenant, may be on the Premises, shall be at the
sole risk and hazard of Tenant 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 Landlord,
except that Landlord shall in no event be indemnified or held
harmless or exonerated from any liability to Tenant or to any
other person, for any injury, loss, damage or liability to the
extent prohibited by law.
6.1.8 Payment of Landlord's Cost of Enforcement. To pay on demand
-----------------------------------------
Landlord's expenses, including reasonable attorneys' fees,
incurred in successfully enforcing any obligation of Tenant under
this Lease or in curing any default by Tenant under this Lease as
provided in Section 8.4. Landlord shall pay on demand Xxxxxx's
expenses, including reasonable attorney's fees, incurred in
successfully enforcing any obligation of Landlord under this
Lease.
6.1.9 Yield Up. At the expiration of the term or earlier termination of
--------
this Lease: to surrender all keys to the Premises; to remove all
of its trade fixtures and personal property in the Premises; to
deliver to Landlord stamped architectural plans showing any
changes or alterations (other than wall and floor covering
replacement) made by Tenant to the Premises after the Commencement
Date; to remove such installations made by it as Landlord may
request (Landlord hereby agreeing that Tenant shall not be
required to remove the TIW) (including computer and
telecommunications wiring and cabling, it being understood that if
Tenant leaves such wiring and cabling in a useable condition,
Tenant shall not be obligated to so remove the same) and all
Tenant's signs wherever located; to repair all damage caused by
such removal and to yield up the Premises (including all
installations and improvements made by Tenant except for trade
fixtures and such of said installations or improvements as
Landlord shall request Tenant to remove), broom-clean and in the
same good order and repair in which Tenant is obliged to keep and
maintain the Premises by the provisions of this Lease. Tenant, at
the time of making any installation, may request in writing
Landlord's permission to leave such installation in the Premises
at the expiration or earlier termination of this Lease. If
Landlord grants permission, then, notwithstanding the foregoing
provisions of this subsection 6.1.9, Landlord may not later
request removal of such installation at the end of the term. Any
property not so removed shall be deemed abandoned and, if Landlord
so elects, deemed to be Landlord's property, and may be retained
or removed and disposed of by Landlord in such manner as Landlord
shall determine and Tenant shall pay Landlord the entire cost and
expense incurred by it in effecting such removal and disposition
and in making any repairs reasonably resulting from such removal.
Tenant shall further indemnify Landlord against all loss, cost and
damage resulting from Xxxxxx's failure and delay in surrendering
the Premises as above provided.
If the Tenant remains in the Premises beyond the expiration or
earlier termination of this Lease, such holding over shall be
without right and shall not be deemed to create any tenancy, but
the Tenant shall be a tenant at sufferance only at a daily rate of
rent equal to two (2) times the rent and other charges in effect
under this Lease as of the day prior to the date of expiration of
this Lease.
6.1.10 Rules and Regulations. To comply with the Rules and Regulations
---------------------
set forth in Exhibit E, and with all reasonable Rules and
Regulations of general applicability to all tenants of the
Building hereafter made by Landlord, of which Tenant has been
given notice; Landlord shall not be liable to Tenant for the
failure of other tenants of the Building to conform to such Rules
and Regulations, but shall use reasonable efforts to enforce the
Rules and Regulations uniformly against all tenants of the
Building.
6.1.11 Estoppel Certificate. Upon not less than fifteen (15) days' prior
--------------------
written request by Xxxxxxxx, to execute, acknowledge and deliver
to Landlord a statement in writing, certifying all or any of the
following, to the extent true: that this Lease is unmodified and
in full force and effect and that Tenant has no defenses, offsets
or counterclaims against its obligations to pay the Fixed Rent
and Additional Rent and any other charges and to perform its
other covenants under this Lease (or, if there have been any
modifications, that the Lease is in full force and effect as
modified and stating the modifications and, if there are any
defenses, offsets or counterclaims, setting them forth in
reasonable detail), and the dates to which the Fixed Rent and
Additional Rent and other charges have been paid, whether or not
Landlord is in default in performance of any of the terms of this
Lease, and such further information with respect to the Lease or
the Premises as Landlord may reasonably request. Any such
statement delivered pursuant to this subsection 6.1.11 may be
relied upon by any prospective purchaser or mortgagee of the
Premises, or any prospective assignee of such mortgage. Tenant
shall also deliver to Landlord copies of Xxxxxx's most recent
annual reports as may be reasonably required by Landlord to be
provided to any mortgagee or prospective purchaser of the
Premises.
6.1.12 Landlord's Expenses Re Consents. To reimburse Landlord promptly on
-------------------------------
demand for all reasonable legal expenses incurred by Landlord in
connection with all requests by Tenant for consent or approval
hereunder.
6.2 Negative Covenants. Tenant covenants at all times during the term and such
------------------
further time (prior or subsequent thereto) as Tenant occupies the Premises
or any part thereof:
6.2.1 Assignment and Subletting. Except as provided for in the next
-------------------------
paragraph below, not to assign, transfer, mortgage or pledge this
Lease or to sublease (which term shall be deemed to include the
granting of concessions and licenses and the like) all or any part
of the Premises or suffer or permit this Lease or the leasehold
estate hereby created or any other rights arising under this Lease
to be assigned, transferred or encumbered, in whole or in part,
whether voluntarily, involuntarily or by operation of law, or
permit the occupancy of the Premises by anyone other than Tenant
without the prior written consent of Landlord. In the event Tenant
desires to assign this Lease or sublet any portion or all of the
Premises, Tenant shall notify Landlord in writing of Xxxxxx's
intent to so assign this Lease or sublet the Premises and the
proposed effective date of such subletting or assignment, and
shall request in such notification that Landlord consent thereto.
Landlord may terminate this Lease in the case of a proposed
assignment, or suspend this Lease pro tanto for the period and
with respect to the space involved in the case of a proposed
subletting, by giving written notice of termination or suspension
to Tenant, with such termination or suspension to be effective as
of the effective date of such assignment or subletting. If
Landlord does not so terminate or suspend, Xxxxxxxx's consent
shall not be unreasonably withheld to an assignment during the
term or to a subletting during the Original Term, provided that
the assignee or subtenant shall use the Premises only for the
Permitted Uses. Tenant shall, as Additional Rent, reimburse
Landlord promptly for Landlord's reasonable legal expenses
incurred in
10
connection with any request by Tenant for such consent. If
Landlord consents thereto, no such subletting or assignment shall
in any way impair the continuing primary liability of Tenant
hereunder, and no consent to any subletting or assignment in a
particular instance shall be deemed to be a waiver of the
obligation to obtain the Landlord's written approval in the case
of any other subletting or assignment. With respect to any
assignment or sublease during the Original Term of this Lease,
such assignment shall not include the right under Section 2.3
hereof granted to the initial Tenant named herein to extend the
term or the right under Section 2.4 granted to the initial Tenant
named herein to terminate this Lease, and such sublease shall be
for a term expiring no later than the Expiration Date.
The provisions of the preceding paragraph shall not apply to, and
Landlord's prior consent shall not be required for, (i) transfers
with an entity into or with which Tenant is merged or consolidated
or (ii) transfers with an entity to which all of Tenant's stock or
all or substantially all of Tenant's assets are transferred or
(iii) transfers to any entity (a "Related Entity") which controls,
is controlled by, or is under common control with Tenant, provided
that in any of such events (A) such entity or successor to Tenant
(specifically excluding a Related Entity) has a net worth computed
in accordance with generally accepted accounting principles at
least equal to the net worth of Tenant immediately prior to such
merger, consolidation or transfer, (B) proof reasonably
satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction (except in connection with
a transfer to a Related Entity), (C) in the case of an assignment,
the assignee agrees directly with Landlord, by written instrument
in form reasonably satisfactory to Landlord, to perform all the
obligations of Tenant; (D) in the case of a sublease, the
sublessee agrees, in a written sublease instrument in form
reasonably satisfactory to Landlord, to abide by all of the terms
and covenants of this Lease and the sublessee occupies the
Premises for the Permitted Uses and no other use; and (E) nothing
shall impair the continuing primary liability of Tenant hereunder.
If for any assignment or sublease consented to by Landlord
hereunder or permitted by the preceding paragraph Xxxxxx receives
rent or other consideration, either initially or over the term of
the assignment or sublease, in excess of the rent called for
hereunder, or in case of sublease of part, in excess of such rent
fairly allocable to the part, after appropriate adjustments in
either such case to assure that all other payments called for
hereunder are appropriately taken into account and after deduction
for reasonable expenses of Tenant in connection with the
assignment or sublease, to pay to Landlord as additional rent
fifty (50%) percent of the excess of each such payment of rent or
other consideration received by Tenant promptly after its receipt.
Whenever Tenant lists with a broker or brokers or otherwise
advertises, holds out or markets the Premises or any part thereof
for sublease or assignment, Tenant shall give Xxxxxxxx Company, as
brokers, a non-exclusive listing with respect to such sublease or
assignment.
If, at any time during the term of this Lease, there is a transfer
of a controlling interest in the stock, membership or general
partnership interests of Tenant, Tenant shall so notify Landlord
and (whether or not Tenant so notifies Landlord), such transfer
shall be deemed an assignment by Tenant subject to the first
paragraph and the following provisions of this subsection 6.2.1,
provided, however, the foregoing shall not apply to, and
Xxxxxxxx's prior consent shall not be required in the event of,
any public offering and the public trading of shares of stock in
Tenant after any public offering.
6.2.2 Nuisance. Not to injure, deface or otherwise harm the Premises; nor
--------
commit any nuisance; nor permit in the Premises any vending
machine (except such as is used for the sale of merchandise to
employees of Tenant) or inflammable fluids or chemicals (except
such as are customarily used in connection with standard office
equipment); nor permit any cooking to such extent as requires
special exhaust venting; nor permit the emission of any
objectionable noise or odor; nor make, allow or suffer any waste;
nor make any use of the Premises which is contrary to any law or
ordinance or which will invalidate any of Landlord's insurance or
interfere with the quiet enjoyment of other tenants of the
Building; nor conduct any auction, fire, "going out of business"
or bankruptcy sales.
6.2.3 Hazardous Wastes and Materials. Not to dispose of any hazardous
------------------------------
wastes, hazardous materials or oil on the Premises or the
Property, or into any of the plumbing, sewage, or drainage systems
thereon, and to indemnify and save Landlord harmless from all
claims, liability, loss or damage arising on account of the use or
disposal of hazardous wastes, hazardous materials or oil by
Tenant, its agents, contractors, or employees, including, without
limitation, liability under any federal, state, or local laws,
requirements and regulations, or damage to any of the aforesaid
systems. Tenant shall comply with all governmental reporting
requirements with respect to hazardous wastes, hazardous materials
and oil, and shall deliver to Landlord copies of all reports filed
with governmental authorities by or on behalf of Tenant with
respect to the Premises or the Property. Landlord warrants to
Tenant that as of the date hereof, to the best of Landlord's
knowledge, no asbestos is present in the Premises or in the common
areas of the Building, and in the event any asbestos is present in
the Premises, Landlord, shall at its sole expense, remove or
encapsulate any asbestos not introduced into the Premises or
Building by Tenant in accordance with applicable laws.
6.2.4 Floor Load; Heavy Equipment. Not to place a load upon any floor of
---------------------------
the Premises exceeding the floor load per square foot area which
such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position
of all heavy business machines and equipment, including safes,
which shall be placed so as to distribute the weight. Business
machines and mechanical equipment which cause vibration or noise
shall be placed and maintained by Tenant at Tenant's expense in
settings sufficient to absorb and prevent vibration, noise and
annoyance outside of the Premises. Tenant shall not move any safe,
heavy machinery, heavy equipment, freight or fixtures into or out
of the Premises except in such manner and at such time as Landlord
shall in each instance authorize.
6.2.5 Installation, Alterations or Additions. Not to make any
--------------------------------------
installations, alterations or additions in, to or on the Premises
nor to permit the making of any holes in the walls, partitions,
ceilings or floors nor the installation or modification of any
locks or security devices without on each occasion obtaining the
prior written consent of Landlord (which consent shall not be
required for any painting or carpeting performed by or on behalf
of Tenant, and which consent shall not be unreasonably withheld
with respect to nonstructural alterations that do not affect the
structural integrity of the Building, reduce its value or involve
penetrations of the roof or structural walls and which consent
shall not be required for nonstructural alterations costing less
than $25,000.00 in each instance), and then only pursuant to plans
and specifications approved by Landlord in advance in each
instance; Tenant shall pay promptly when due the entire cost of
any work to the Premises undertaken by Tenant so that the Premises
shall at all times be free of liens for labor and materials, and
at Landlord's request Tenant shall furnish to Landlord a bond or
other security reasonably acceptable to Landlord assuring that any
work commenced by Tenant in excess of $25,000.00 in any one
instance (exclusive of painting or carpeting) will be completed in
accordance with the plans and specifications theretofore approved
by Landlord and assuring that the Premises will remain free of any
mechanics' lien or other encumbrance arising out of such work. In
any event, Tenant shall forthwith bond against or discharge any
mechanics' liens or other encumbrances that may arise out of such
work. Tenant shall procure all necessary licenses and permits at
Tenant's sole expense before undertaking such work. All such work
shall be done in a good and workmanlike manner employing materials
of good quality and so as to conform with all applicable zoning,
building, fire, health and other codes, regulations, ordinances
and laws. Tenant shall save Landlord harmless and indemnified from
all injury, loss, claims or damage to any person or property
occasioned by or arising out of such work.
Without waiver of any of the provisions of this subsection 6.2.5
as it relates to the performance of the work in connection with
such installation and with subsection 6.1.5 deemed to be
applicable to such installation, Landlord hereby consents to
Tenant installing one satellite dish antenna (no larger than 1.5
meters in diameter) on the roof of the Building at a
technologically sufficient location thereon specified by Landlord
(called the "Antenna Area"), provided that such installation meets
Landlord's reasonable design criteria (including visual shielding
such that it cannot be seen by the public) and does not void any
roof bonds or affect the integrity of the roof (and therefore
shall include appropriate pavers
11
to protect the roof from traffic thereto), and that Tenant has
obtained all required approvals of applicable governmental
authorities. The installation, operation, maintenance and removal
of such satellite dish shall be at Tenant's sole cost and expense
and shall be performed in accordance with all applicable laws and
requirements of governmental authorities. Tenant shall operate
such satellite dish so as not to cause material interference with
any other equipment on the roof of, or in, the Building at the
time of Tenant's installation. The Antenna Area shall be deemed a
part of the Premises for all purposes under this Lease, including
without limitation, the provisions of subsection 6.1.5.
Not to grant a security interest in, or to lease, any personal
property being installed in the Premises (including, without
limitation, demountable partitions) without first obtaining an
agreement, for the benefit of Landlord, from the secured party or
lessor that such property will be removed within ten (10) business
days after the expiration or earlier termination of this Lease and
that a failure to so remove will subject such property to the
provisions of subsection 6.1.9 of the Lease.
6.2.6 Abandonment. Not to abandon the Premises during the term, it being
-----------
understood and agreed that vacancy of the Premises shall not be
construed as abandonment so long as all of Tenant's other
obligations under this Lease, including without limitation the
payment of rent, continue to be timely performed and reasonable
measures are taken to manage the vacant space on a daily basis,
including maintaining the appearance of a lighted reception area
during the Building's normal business hours.
6.2.7 Signs. Not without Landlord's prior written approval to paint or
-----
place any signs or place any curtains, blinds, shades, awnings,
aerials, or the like, visible from outside the Premises. Within a
reasonable time after the Commencement Date, Landlord shall, at
Landlord's cost, install Landlord's standard signage displaying
Tenant's name on a monument sign at the entrance of the portion of
the Building known as "Area 4" and also on the directory that
Landlord shall erect near the main entrance for the Property.
6.2.8 Parking and Storage. Not to permit any storage of materials outside
-------------------
of the Premises; nor to permit the use of the parking areas for
either temporary or permanent storage of trucks; nor permit the
use of the Premises for any use for which heavy trucking would be
customary.
ARTICLE 7
---------
Casualty or Taking
------------------
7.1 Termination. In the event that the Premises or the Building, or any
-----------
material part thereof, shall be taken by any public authority or for any
public use, or shall be destroyed or damaged by fire or casualty, or by the
action of any public authority, then this Lease may be terminated at the
election of Landlord, provided that Landlord simultaneously terminates the
leases of all other tenants which are similarly situated. Such election,
which may be made notwithstanding the fact that Landlord's entire interest
may have been divested, shall be made by the giving of notice by Landlord
to Tenant within sixty (60) days after the date of the taking or casualty.
In the event that the Premises are destroyed or damaged by fire or
casualty, or by the action of public authority, and, in the reasonable
opinion of an independent architect or engineer selected by Landlord,
cannot be repaired or restored within nine (9) months after the date of the
casualty or taking, then this Lease may be terminated at the election of
Landlord or Tenant, which election shall be made by the giving of notice to
the other party within ten (10) days after the date the opinion of the
architect or engineer is made available to the parties. In the event a
taking results in a permanent loss of more than 20% of the parking on the
Property (and Landlord does not elect to furnish reasonable substitute
parking in a convenient location on or in close proximity to the Property)
or a permanent deprivation of convenient access to the Premises or the
Property, then this Lease may be terminated at the election of Tenant,
which election shall be made by giving of notice by Tenant to Landlord
within thirty (30) days after the date of the taking.
7.2 Restoration. If neither Landlord nor Tenant elects to so terminate, this
-----------
Lease shall continue in force and a just proportion of the rent reserved,
according to the nature and extent of the damages sustained by the
Premises, shall be suspended or abated until the Premises, or what may
remain thereof, shall be put by Landlord in proper condition for use, which
Landlord covenants to do with reasonable diligence to the extent permitted
by the net proceeds of insurance recovered or damages awarded for such
taking, destruction or damage and subject to zoning and building laws or
ordinances then in existence. "Net proceeds of insurance recovered or
damages awarded" refers to the gross amount of such insurance or damages
less the reasonable expenses of Landlord incurred in connection with the
collection of the same, including without limitation, fees and expenses for
legal and appraisal services. If Landlord shall not have restored the
Premises within nine (9) months from the taking or casualty, Tenant shall
have the right to terminate this Lease by giving notice of such termination
to Landlord, effective at the expiration of thirty (30) days from the
giving of such notice; provided however, that such termination will be
rendered ineffective if, prior to the expiration of said 30-day period,
Landlord shall have completed such restoration.
7.3 Award. Irrespective of the form in which recovery may be had by law, all
-----
rights to damages or compensation shall belong to Landlord in all cases
except for awards or damages specifically made to for Tenant's personal
property, trade fixtures, equipment and moving expenses, which shall belong
to Tenant, provided Xxxxxxxx's award is not reduced thereby. Except for
such, Tenant hereby grants to Landlord all of Tenant's rights to such
damages and covenants to deliver such further assignments thereof as
Landlord may from time to time request.
ARTICLE 8
---------
Defaults
--------
8.1 Events of Default. (a) If Tenant shall default in the performance of any
-----------------
of its obligations to pay the Fixed Rent or Additional Rent hereunder and
if such default shall continue for ten (10) days after written notice from
Landlord designating such default or if within thirty (30) days after
written notice from Landlord to Tenant specifying any other default or
defaults Tenant has not commenced diligently to correct the default or
defaults so specified or has not thereafter diligently pursued such
correction to completion, or (b) if any assignment shall be made by Tenant
or any guarantor of Tenant for the benefit of creditors, or (c) if
Tenant's leasehold interest shall be taken on execution, or (d) if a lien
or other involuntary encumbrance is filed against Tenant's leasehold
interest or Tenant's other property, including said leasehold interest, and
is not discharged within thirty (30) days thereafter, or (e) if a petition
is filed by Tenant or any guarantor of Tenant for liquidation, or for
reorganization or an arrangement under any provision of any bankruptcy law
or code as then in force and effect, or (f) if an involuntary petition
under any of the provisions of any bankruptcy law or code is filed against
Tenant or any guarantor of Tenant and such involuntary petition is not
dismissed within forty-five (45) days thereafter, then, and in any of such
cases, Landlord and the agents and servants of Landlord lawfully may, in
addition to and not in derogation of any remedies for any preceding breach
of covenant, immediately or at any time thereafter without demand or notice
and with process of law enter into and upon the Premises or any part
thereof in the name of the whole or mail a notice of termination addressed
to Tenant, and repossess the same as of landlord's former estate and expel
Tenant and those claiming through or under Tenant and remove its and their
effects without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent
or prior breach of covenants, and upon such entry or mailing as aforesaid
this Lease shall terminate, Tenant hereby waiving all statutory rights to
the Premises (including without limitation rights of redemption, if any, to
the extent such rights may be lawfully waived) and Landlord, without notice
to Tenant, may store Tenant's effects, and those of any person claiming
through or under Tenant, at the expense and risk of Tenant, and, if
Landlord so elects, may sell such effects at public auction or private sale
and apply the net proceeds to the payment of all sums due to Landlord from
Tenant, if any, and pay over the balance, if any, to Tenant.
12
8.2 Remedies. In the event that this Lease is terminated under any of the
--------
provisions contained in Section 8.1 or shall be otherwise terminated for
breach of any obligation of Tenant, Tenant covenants to pay forthwith to
Landlord, as compensation, the present value (discounted at the then
applicable federal discount rate) the excess of the total rent reserved for
the residue of the term over the rental value of the Premises for said
residue of the term. In calculating the rent reserved there shall be
included, in addition to the Fixed Rent and Additional Rent, the value of
all other considerations agreed to be paid or performed by Xxxxxx for said
residue. Tenant further covenants as additional and cumulative obligations
after any such termination, to pay punctually to Landlord all the sums and
to perform all the obligations which Tenant covenants in this Lease to pay
and to perform in the same manner and to the same extent and at the same
time as if this Lease had not been terminated. In calculating the amounts
to be paid by Tenant pursuant to the next preceding sentence Tenant shall
be credited with any amount paid to Landlord as compensation as in this
Section 8.2 provided and also with the net proceeds of any rent obtained by
Landlord by reletting the Premises, after deducting all Landlord's expense
in connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, fees for legal services and
expenses of preparing the Premises for such reletting, it being agreed by
Tenant that Landlord may (i) relet the Premises or any part or parts
thereof, for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the term and may grant such concessions and free rent as
Landlord in its sole judgment considers advisable or necessary to relet the
same and (ii) make such alterations and repairs in the Premises as Landlord
in its sole judgment considers advisable or necessary to relet the same,
and no action of Landlord in accordance with the foregoing or failure to
relet or to collect rent under reletting shall operate or be construed to
release or reduce Tenant's liability as aforesaid.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy
or insolvency by reason of the termination of this Lease, an amount equal
to the maximum allowed by any statute or rule of law in effect at the
time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater than, equal to, or less than
the amount of the loss or damages referred to above.
8.3 Remedies Cumulative. Any and all rights and remedies which Landlord or
-------------------
Tenant may have under this Lease, and at law and equity, shall be
cumulative and shall not be deemed inconsistent with each other, and any
two or more of all such rights and remedies may be exercised at the same
time insofar as permitted by law.
8.4 Landlord's Right to Cure Defaults. Landlord may, but shall not be
---------------------------------
obligated to, cure, at any time, without additional notice, any default by
Tenant under this Lease that continues after notice thereof and expiration
of the applicable cure period; and whenever Landlord so elects, all out-of-
pocket costs and expenses incurred by Landlord, including reasonable
attorneys' fees, in curing a default shall be paid, as Additional Rent, by
Tenant to Landlord on demand, together with lawful interest thereon from
the date of payment by Landlord to the date of payment by Xxxxxx.
8.5 Effect of Waivers of Default. Any consent or permission by Landlord or
----------------------------
Tenant to any act or omission which otherwise would be a breach of any
covenant or condition herein, shall not in any way be held or construed
(unless expressly so declared) to operate so as to impair the continuing
obligation of any covenant or condition herein, or otherwise, except as to
the specific instance, operate to permit similar acts or omissions.
8.6 No Waiver, etc. The failure of either party to seek redress for violation
--------------
of, or to insist upon the strict performance of, any covenant or condition
of this Lease shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from
having all the force and effect of an original violation. The payment by
Tenant or receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed to have been a waiver of such
breach by either party. No consent or waiver, express or implied, by
either party to or of any breach of any agreement or duty shall be
construed as a waiver or consent to or of any other breach of the same or
any other agreement or duty.
8.7 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum than
--------------------------
the Fixed Rent, Additional Rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such rent
or charge due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent or other charge be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such
installment or pursue any other remedy in this Lease provided.
ARTICLE 9
---------
Rights of Mortgage Holders
--------------------------
9.1 Rights of Mortgage Holders. The word "mortgage" as used herein includes
--------------------------
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. The word
"holder" shall mean a mortgagee, and any subsequent holder or holders of a
mortgage. Until the holder of a mortgage shall enter and take possession
of the Property for the purpose of foreclosure or otherwise, such holder
shall have only such rights of Landlord as are necessary to preserve the
integrity of this Lease as security. Upon entry and taking possession of
the Property for the purpose of foreclosure, such holder shall have all the
rights of Landlord. No such holder of a mortgage shall be liable either as
mortgagee or as assignee, to perform, or be liable in damages for failure
to perform, any of the obligations of Landlord unless and until such holder
shall enter and take possession of the Property. Upon entry and taking
possession, such holder shall be liable to perform all of the obligations
of Landlord, subject to and with the benefit of the provisions of Section
10.4, provided that a surrender of possession shall be deemed a conveyance
under said provisions to the owner of the equity of the Property.
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a holder of a mortgage (particularly,
without limitation thereby, the covenants and agreements contained in
this Section 9.1) constitute a continuing offer to any person,
corporation or other entity, which by accepting a mortgage subject to
this Lease, assumes the obligations herein set forth with respect to such
holder; such holder is hereby constituted a party of this Lease as an
obligee hereunder to the same extent as though its name were written
hereon as such; and such holder shall be entitled to enforce such
provisions in its own name. Xxxxxx agrees on request of Xxxxxxxx to
execute and deliver from time to time any agreement to the extent
reasonably necessary to implement the provisions of this Section 9.1.
9.2 Lease Superior or Subordinate to Mortgages. It is agreed that the rights
------------------------------------------
and interest of Tenant under this Lease shall be (i) subject or
subordinate to any present or future mortgage or mortgages and to any and
all advances to be made thereunder, and to the interest of the holder
thereof in the Premises or any property of which the Premises are a part if
Landlord shall elect by notice to Tenant to subject or subordinate the
rights and interest of Tenant under this Lease to such mortgage or (ii)
prior to any present or future mortgage or mortgages, if Landlord shall
elect, by notice to Tenant, to give the rights and interest of Tenant under
this Lease priority to such mortgage; in the event of either of such
elections and upon notification by Landlord to that effect, the rights and
interest of Tenant under this Lease should be deemed to be subordinate to,
or have priority over, as the case may be, said mortgage or mortgages,
irrespective of the time of execution or time of recording of any such
mortgage or mortgages. In confirmation of such subordination, Xxxxxx
agrees it will, upon request of Landlord, execute, acknowledge and deliver
any and all commercially reasonable instruments necessary or desirable to
give effect to or notice of such subordination or priority, provided that
any subordination agreement provides, among other things, that Xxxxxx's use
and occupancy of the Premises shall not be disturbed so long as Tenant is
not in default beyond the expiration of applicable cure periods hereunder.
Any Mortgage to which this Lease shall be subordinated may contain such
terms, provisions and conditions as the holder deems usual or customary.
13
ARTICLE 10
----------
Miscellaneous Provisions
------------------------
10.1 Notices from One Party to the Other. All notices required or permitted
-----------------------------------
hereunder shall be in writing and addressed, if to the Tenant, at the
Original Notice Address of Tenant or such other address as Tenant shall
have last designated by notice in writing to Landlord and, if to Landlord,
at the Original Notice Address of Landlord or such other address as
Landlord shall have last designated by notice in writing to Tenant. Any
notice shall be deemed duly given upon receipt or rejection by the
addressee after having been mailed to such address postage prepaid, by
registered or certified mail, return receipt requested, or when delivered
to such address by hand, or when sent to such address by nationally
recognized overnight courier.
10.2 Quiet Enjoyment. Landlord agrees that upon Xxxxxx's paying the rent and
---------------
performing and observing the agreements, conditions and other provisions on
its part to be performed and observed, Tenant shall and may peaceably and
quietly have, hold and enjoy the Premises during the term hereof without
any manner of hindrance or molestation from Landlord or anyone claiming
under Landlord, subject, however, to the terms of this Lease.
10.3 Lease not to be Recorded. Tenant agrees that it will not record this
------------------------
Lease. Both parties shall, upon the request of either, execute and deliver
a notice or short form of this Lease in such form, if any, as may be
permitted by applicable statute.
10.4 Limitation of Landlord's Liability. The term "Landlord" as used in this
----------------------------------
Lease, so far as covenants or obligations to be performed by Landlord are
concerned, shall be limited to mean and include only the owner or owners at
the time in question of the Property, and in the event of any transfer or
transfers of title to said property, the Landlord (and in case of any
subsequent transfers or conveyances, the then grantor) shall be
concurrently freed and relieved from and after the date of such transfer or
conveyance, without any further instrument or agreement of all liability as
respects the performance of any covenants or obligations on the part of the
Landlord contained in this Lease thereafter to be performed, it being
intended hereby that the covenants and obligations contained in this Lease
on the part of Landlord, shall, subject as aforesaid, be binding on the
Landlord, its successors and assigns, only during and in respect of their
respective successive periods of ownership of said leasehold interest or
fee, as the case may be. Tenant, its successors and assigns, shall not
assert nor seek to enforce any claim for breach of this Lease against any
of Landlord's assets other than Landlord's interest in the Property and in
the rents, issues and profits thereof, and Xxxxxx agrees to look solely to
such interest for the satisfaction of any liability or claim against
Landlord under this Lease, it being specifically agreed that in no event
whatsoever shall Landlord (which term shall include, without limitation,
any general or limited partner, trustees, beneficiaries, officers,
directors, or stockholders of Landlord) ever be personally liable for any
such liability.
10.5 Acts of God. In any case where either party hereto is required to do any
-----------
act, delays caused by or resulting from Acts of God, war, civil commotion,
fire, flood or other casualty, labor difficulties, shortages of labor,
materials or equipment, government regulations, unusually severe weather,
or other causes beyond such party's reasonable control (but financial
inability shall never constitute a cause beyond either party's control)
shall not be counted in determining the time during which work shall be
completed, whether such time be designated by a fixed date, a fixed time or
a "reasonable time," and such time shall be deemed to be extended by the
period of such delay.
10.6 Landlord's Default. Landlord shall not be deemed to be in default in the
------------------
performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of
thirty (30) days or such additional time as is reasonably required
(provided that Landlord shall have commenced to correct such default within
such thirty-day period and thereafter diligently pursues such correction to
completion) to correct any such default after written notice has been given
by Tenant to Landlord specifying the nature of Landlord's alleged default.
Landlord shall not be liable in any event for incidental or consequential
damages to Tenant by reason of Xxxxxxxx's default, whether or not notice is
given. Tenant shall have no right to terminate this Lease for any default
by Landlord hereunder and no right, for any such default, to offset or
counterclaim against any rent due hereunder, except as provided for herein.
10.7 Brokerage. Tenant warrants and represents that it has dealt with no
---------
broker in connection with the consummation of this Lease, other than
Xxxxxxxx Company, CB Xxxxxxx Xxxxx, and Xxxxx & Xxxxx, and in the event of
any brokerage claims, other than by Xxxxxxxx Company, CB Xxxxxxx Xxxxx, or
Xxxxx & Xxxxx, against Landlord predicated upon prior dealings with Xxxxxx,
Xxxxxx agrees to defend the same and indemnify and hold Landlord harmless
against any such claim.
10.8 Applicable Law and Construction. This Lease shall be governed by and
-------------------------------
construed in accordance with the laws of the Commonwealth of Massachusetts
and, if any provisions of this Lease shall to any extent be invalid, the
remainder of this Lease shall not be affected thereby. There are no oral
or written agreements between Landlord and Tenant affecting this Lease.
This Lease may be amended, and the provisions hereof may be waived or
modified, only by instruments in writing executed by Landlord and Xxxxxx.
The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Lease.
Unless repugnant to the context, the words "Landlord" and "Tenant"
appearing in this Lease shall be construed to mean those named above and
their respective heirs, executors, administrators, successors and assigns,
and those claiming through or under them respectively. If there be more
than one tenant, the obligations imposed by this Lease upon Tenant shall be
joint and several.
WITNESS the execution hereof under seal on the day and year first above
written:
Landlord:
00 XXXXXXX XXXX LLC
By: Nordic Holdings I LLC, as manager
By:________________________________
Xxxxx X. Xxxxxxxx, as manager
By:________________________________
Xxxxx Xxxxxxxxx, as manager
Tenant:
XXXXXXXX.XXX, INC.
By:_________________________________
Its:________________________________
By:_________________________________
Its:________________________________
14
EXHIBIT B
---------
COMMENCEMENT DATE NOTIFICATION
------------------------------
To:___________________________
(Tenant)
_______________ ("Landlord") and _______________ ("Tenant") are parties to a
lease ("Lease") dated _____________ of premises in a building known as
______________________, Massachusetts. Landlord hereby notifies Tenant that the
term of the Lease commenced on _____________ and will end on ______________ and
that the first lease year commenced on __________ and will end on ____________.
Although not required for this notification to be effective, we would appreciate
your confirming the foregoing by signing the enclosed copy of this letter and
returning it to us.
___________________________________
(Landlord)
By_________________________________
Confirmed:
___________________________________
(Tenant)
By:________________________________
EXHIBIT C
---------
BASE BUILDING WORK
------------------
Building Entrances: Three handicapped accessible, aluminum and glass, two-
story, curtain-wall entrances are provided to access
Areas 1, 2, & 3. Area 4 is accessed at grade via, a
single-story, curtain-wall entrance with an inside
vestibule. Numerous secondary entrances are provided for
the Building.
Windows: Aluminum frames with thermopane, Low-E, tinted glass is
provided throughout. Area 4 has two six (6') foot wide
window units installed in each bay of the northwest wall,
and three storefront-type windows will be installed in
the southwest wall.
Roof: Single-ply, EPDM membrane roofing systems with 2 1/2"
insulation providing an R16 level are provided at Areas
1, 2 & 3. Area 4 has a built-up roof.
Common Areas: Two-story atrium lobbies are provided in Areas 1, 2, & 3,
which include elevators, monumental stairs, and bathroom
cores. Area 4 has a new bathroom core.
Interior drywall partitions for the lobbies, bathroom
cores, electrical and mechanical rooms are constructed
using steel studs, 16" on center with 1/2" gypsum wall
board to the underside of the deck.
The bathroom and utility room doors are 3'-0" x 7'-0"
solid-core, maple veneer in hollow metal frames with
standard lever hardware.
Two coats of latex paint is provided on all drywall and
door frames. Doors and window xxxxx receive stain and/or
clear sealed.
A combination of drywall soffits and suspended ceilings
is provided in the lobbies and all other common areas.
Bathrooms have 2' X 2' suspended ceilings.
A combination of tile and carpet is provided in the
lobbies. All common hallways have carpet. Ceramic tile is
provided in the bathrooms and shower rooms on the floors
and wet walls.
Common areas in Areas 1, 2, & 3 have semi-recessed chrome
sprinkler heads located in the suspended or drywall
ceilings.
Tenant Entrances: The entrance from the lobby into each tenant space has 3'-
6"X 7'-10" solid core maple veneer door with tempered
glass and 3'- 6" tempered-glass sidelight.
Partitions: The inside of the exterior walls are steel studs 16" on
center with bat insulation and 5/8" gypsum wall board to
10 feet above the finished floor. Hardwood veneer window
xxxxx are provided at all windows.
HVAC: All Areas are serviced by a variable air volume (VAV)
system consisting of rooftop (Areas 1, 2 & 4) and
interior (Area 3) air handler units.
Flooring: The existing, unfinished floors in Tenant spaces will be
leveled to receive new flooring.
Electrical: 13.8kv primary main service and 480/277 and 110/208,
three phase, secondary. Distribution panels and feeders
are provided for the HVAC system, lighting and utility
power. Tenant spaces are serviced by sub-panels located
in common electrical rooms on each floor. An emergency
light and exit sign system is provided to meet code
requirements for the common areas and unfinished tenant
spaces.
Sprinkler: A sprinkler system is provided throughout the Building.
Tenant spaces have the proper coverage required by code
for open, unfinished space, with heads facing up at the
underside of the exposed deck.
Fire Alarm: An addressable fire alarm system is provided throughout
the Building in conformance with all State and municipal
code requirements. Tenant spaces have the proper coverage
required by code for open, unfinished space.
EXHIBIT D
---------
WORK CHANGE ORDER
-----------------
Lease Date:_____________________________ Date:_____________________________
Landlord:_______________________________ Work Change Order No.:____________
Tenant:_________________________________ Building Address:_________________
Premises:_________________________
================================================================================
Tenant directs Landlord to make the following additions to Landlord's work:
Description of additional work:
Work Change Order Amount:
================================================================================
Amount of Previous Work Change Orders:__________________________________
This Work Change Order:_________________________________________________
Total Amount of Work Change Orders:_____________________________________
Xxxxxxxx approves this Work Change Order and Xxxxxx agrees to pay to Landlord
the Total Amount of Work Change Orders at the earlier of ten days following
receipt of the Certificate of Occupancy of the premises or occupancy of the
premises by Xxxxxx.
Tenant: Landlord:
By: _____________________________ By: _____________________________
Title: ___________________________ Title: ___________________________
EXHIBIT E
---------
RULES AND REGULATIONS
---------------------
1. The sidewalks, entrances, passages, corridors, vestibules, halls,
elevators, or stairways in or about the Building shall not be obstructed by
Tenant.
2. Tenant shall not place objects against glass partitions, doors or windows
which would be unsightly from the Building corridor or from the exterior of
the Building.
3. Tenant shall not waste electricity or water in the Building premises and
shall cooperate fully with Landlord to assure the most effective operation
of the Building heating and air conditioning systems. All regulating and
adjusting of heating and air-conditioning apparatus shall be done by the
Landlord's agents or employees.
4. Tenant shall not use the Premises so as to cause any increase above normal
insurance premiums on the Building.
5. No vehicles or animals of any kind shall be brought into or kept in or
about the Premises. No space in the Building shall be used for
manufacturing or for the sale of merchandise of any kind at auction or for
storage thereof preliminary to such sale.
6. Tenant shall cooperate with Landlord in minimizing loss and risk thereof
from fire and associated perils.
7. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were designed and
constructed and no sweepings, rubbish, rags, acid or like substance shall
be deposited therein. All damages resulting from any misuse of the
fixtures shall be borne by the Tenant.
8. Tenant acknowledges that the Building has been designated a non-smoking
building. At no time shall Tenant permit its agents, employees,
contractors, guests or invitees to smoke in the Building or, except in
specified locations, directly outside the Building.
9. Landlord reserves the right to establish, modify, and enforce reasonable
parking rules and regulations, provided such rules and obligations do not
diminish Tenant's rights under the Lease.
10. Landlord reserves the right at any time to rescind, alter or waive any rule
or regulation at any time prescribed for the Building and to impose
additional reasonable rules and regulations when in its judgment deems it
necessary, desirable or proper for its best interest and for the best
interest of the tenants and no alteration or waiver of any rule or
regulation in favor of one tenant shall operate as an alteration or waiver
in favor of any other tenant, provided such rules and regulations do not
diminish Tenant's rights under the Lease. Landlord shall not be
responsible to any tenant for the nonobservance or violation by any other
tenant however resulting of any rules or regulations at any time prescribed
for the Building.
EXHIBIT F
---------
FORM OF LETTER OF CREDIT
------------------------
BENEFICIARY: ISSUANCE DATE: ________________, _____
00 Xxxxxxx Xxxx LLC IRREVOCABLE STANDBY
LETTER OF CREDIT NO. _______
ACCOUNTEE/APPLICANT: MAXIMUM/AGGREGATE
CREDIT AMOUNT:
USD $
GENTLEMEN:
We hereby establish our irrevocable letter of credit in your favor for account
of the applicant up to an aggregate amount not to exceed _________ US Dollars
($________) available by your draft(s) drawn on ourselves at sight accompanied
by:
Your statement, signed by a purportedly authorized officer/official certifying
that the Beneficiary is entitled to draw upon this Letter of Credit (in the
amount of the draft submitted herewith) pursuant to Section 4.4 of the lease
(the "Lease") dated _____, 1999 by and between 10 Xxxxxxx Road LLC, as Landlord,
and ______________, as Tenant, relating to the premises at 00 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx.
Draft(s) must indicate name and issuing bank and credit number and must be
presented at this office.
You shall have the right to make partial draws against this Letter of Credit,
from time to time.
Except as otherwise expressly stated herein, this Letter of Credit is subject to
the "Uniform Customs and practice for Documentary Credits, International Chamber
of Commerce, Publication No. 500 (1993 Revision)."
This Letter of Credit shall expire at our office on ________________, ____ (the
"Stated Expiration Date"). It is a condition of this Letter of Credit that the
Stated Expiration Date shall be deemed automatically extended without amendment
for successive one (1) year periods from such Stated Expiration Date, unless at
least forty-five (45) days prior to such Stated Expiration Date) or any
anniversary thereof) we shall notify the Beneficiary and the Accountee/Applicant
in writing by registered mail (return receipt) that we elect not to consider
this Letter of Credit extended for any such additional one (1) year period.
We engage with you that all drafts drawn under and in compliance with the terms
of this letter of credit will be duly honored on presentation to us.
Very truly yours,
Authorized Signatory
