EXHIBIT 10.19
KILN XXXXX XX
00 XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXXXXXX 00000
LEASE dated September 23, 1996
Article I
REFERENCE DATA
1.1 SUBJECTS 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 Article.
LANDLORD: ADVENT REALTY LIMITED PARTNERSHIP
LANDLORD'S ORIGINAL ADDRESS: 00 Xxxx Xxxxxx, Xxxxxx, XX 00000
TENANT: ATRIA SOFTWARE, INC.
TENANT'S ORIGINAL ADDRESS: 00 Xxxxxxx Xxxx, Xxxxxxxxx, XX
TERM COMMENCEMENT DATE: September 23, 1996
RENT COMMENCEMENT DATE: November 23, 1996
TERM EXPIRATION DATE: December 31, 2001
ANNUAL BASIC RENT: $546,024.60 ($19.80 x 27,577)
TENANT ELECTRICITY COST: $23,440.45 ($.85 x 27,577)
TENANT ELECTRICITY RATE: $.85 per rentable square foot
BASE OPERATING EXPENSES PER SQUARE FOOT: Landlord's Operating Expenses for the
first twelve (12) full calendar months after the Term Commencement Date divided
by the Total Rentable Floor Area of the Building
LAND: The land on Xxxxxxxx Avenue in Lexington, Massachusetts and known as 00
Xxxxxxxx Xxxxxx, shown on Exhibit A attached hereto.
BUILDING: The entire office building on the Land.
TOTAL RENTABLE FLOOR AREA OF THE BUILDING: 76,440 Square Feet
PREMISES: The space on the third floor of the Building shown on Exhibit B,
attached to this Lease
RENTABLE FLOOR AREA OF THE PREMISES: 27,577 Square Feet
USEABLE FLOOR AREA OF THE PREMISES: 24,113 Square Feet
PERMITTED USES: General office uses consistent with a first-class office
building including without limitation software engineering and development,
software training, packaging and distribution, all to the extent permitted by
applicable law.
SECURITY DEPOSIT: See Article X
PUBLIC LIABILITY INSURANCE: $1,000,000
LANDLORD'S MANAGING AGENT: Graystone Corporation
ADDRESS OF LANDLORD'S MANAGING AGENT: 0000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
00000
BROKER: XxXxxx & Xxxx and Whittier Partners
TENANT'S AUTHORIZED REPRESENTATIVE: Xxxxx Bay
LANDLORD'S AUTHORIZED REPRESENTATIVE: Xxxx Xxxxx
Xxxxxxxxx Xxxxxx
XXXXXXX ROAD LEASE: The Lease between Landlord and Tenant, dated
March 18, 1995 for premises located in Kiln Brook V, 20
Xxxxxxx Road, Lexington, Massachusetts ("Kiln Brook V
Premises").
ARTICLE II
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PREMISES, TERM, RENT, OPERATING
EXPENSES AND TAXES
2.1 PREMISES AND EXCLUSIONS
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises in an "As-Is" condition, free of all occupants and in broom clean
condition and free of all personal property not owned by Tenant.
Notwithstanding the foregoing, Landlord agrees that, at the time the Premises
are delivered to Tenant, the electrical and mechanical systems serving the
Premises shall be in good working order and condition and, if required, Landlord
shall install a back-flow prevention device to prevent water in the fire
sprinkler pipe system from flowing into the Building's potable water supply.
The Premises specifically exclude the "Common Areas and Facilities", as
defined in Section 2.2.
Landlord shall provide Tenant with not less than 3.25 parking spaces per
1,000 square feet of rentable floor of the Premises in the parking areas
adjacent to the Building. Such parking shall be in common with Landlord, other
tenant's and occupants of the office Park and their respective employees,
customers and invitees.
This Lease is subject to all easements, restrictions, agreements, and
encumbrances of record to the extent in force and applicable. To the best of
Landlord's knowledge, there are no easements, restrictions, agreements or
encumbrances of record which would prohibit or materially interfere with the use
of the Premises by Tenant for the Permitted Use.
2.1.1. Space Planning. Intentionally Deleted.
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2.1.2. Landlord's Work. Intentionally Deleted.
---------------
2.1.3. Tenant's Work. Tenant shall perform any construction work
-------------
necessary or desired for Tenant's use and occupancy of the Premises ("Tenant's
Work"), subject to Landlord's prior review and approval of the plans and
specifications for such construction work, which approval shall not be
unreasonably withheld or delayed. Prior to beginning Tenant's Work, Tenant shall
obtain "all risk" "builder's risk insurance," so-called, insuring both Landlord
and
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any overlessor, as well as Tenant, against any claims for property damage,
personal injury, death, and for any other type of loss or damage arising out of
or occasioned by or connected in any way with Tenant's Work, together with any
other insurance coverage which may be required by law. Tenant shall furnish
Landlord with certificates of the issuance of all insurance prior to beginning
Tenant's Work. All insurance shall be maintained in force until Tenant's Work
has been completed and shall be in amounts reasonably satisfactory to Landlord.
Tenant shall commence Tenant's Work promptly after receipt of Landlord's
approval of Tenant's plans and specifications (but not before the Commencement
Date) and shall diligently prosecute the same to completion. Landlord's
approval of Tenant's plans and specifications for Tenant's Work shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules and regulations of
governmental agencies or authorities.
2.1.4. Temporary Space. Intentionally Deleted.
---------------
2.1.5. Tenant Improvement Allowance. Landlord agrees to provide Tenant
----------------------------
with a "Tenant Improvement Allowance" for costs of construction related to
Tenant's Work of up to but not more than $14.00 per square foot ($386,078).
Such payment shall be made within thirty (30) days following Landlord's
receipt of third-party invoices for actual work performed in accordance with
the plans and specifications approved by Landlord in advance, together with
"as-built" plan(s) showing the completion of such work, lien waivers
reasonably satisfactory to Landlord from contractors or others performing the
work or supplying the labor or material, and reasonable evidence that such
work has been completed in accordance with all applicable laws, rules,
regulations and ordinances. For the purposes hereof, "reasonable evidence" of
completion shall be the issuance or a certificate of occupancy and any other
certificates of compliance or completion required by applicable governmental
authorities. Such work shall be performed by a contractor or contractors
selected by Tenant and approved in writing by Landlord (such approval shall
not be unreasonably withheld, conditioned or delayed). Tenant shall be
responsible for and shall pay directly and indemnify Landlord from and against
any construction costs related to Tenant's Work in excess of the Tenant
Improvement Allowance. Notwithstanding anything herein to the contrary,
Landlord agrees that, provided the Tenant Improvement Allowance exceeds the
total proposed cost and expense of Tenant's
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construction work on the Premises ("Tenant's Improvement Costs"), on the basis
of the construction budget formulated by Tenant and the Architect before the
commencement of construction (as amended from time to time), and approved by
Landlord (which approval shall not be unreasonably withheld or delayed), Tenant
may add to Tenant's Improvement Costs and Landlord shall reimburse Tenant for,
up to the limit of the Tenant Improvement Allowance, the cost of (i) fees of
architects and construction managers incurred in connection with Tenant's Work,
and (ii) furniture, fixtures and business equipment to be incorporated into the
Premises, including by way of example and without limitation, office cubicles
and voice and data cabling. To the extent that any such furniture, fixtures and
equipment are paid for with the Tenant Improvement Allowance ("Financed FFE"),
such Financed FFE shall be the property of Landlord for the duration of the
initial five-year term of this Lease. If this lease shall terminate prior to the
expiration of the initial five-year term, Tenant may remove the Financed FFE
only after paying to Landlord the unamortized and unreimbursed cost of the
Financed FFE, which shall be determined by multiplying the original cost thereof
by a fraction, the numerator of which is the number of months remaining in the
initial five-year term at the time of such termination and the denominator of
which is 60. Provided there are funds available under the Tenant Improvement
Allowance for any Financed FFE (based on the construction budget), then until
the Tenant Improvement Allowance is reached, Landlord shall pay funds available
from the Tenant Improvement Allowance for the Financed FFE to Tenant within ten
(10) days following Tenant's written request, which request shall include
invoices and other reasonable substantiating documentation. If Tenant elects to
use the Tenant Improvement Allowance for the Financed FFE to the extent
permitted herein, and change orders or other events result in the Tenant
Improvement Costs (inclusive of any Financed FFE) exceeding the Tenant
Improvement Allowance, Tenant agrees to promptly pay to or reimburse Landlord
for, as appropriate, any such costs in excess of the Tenant Improvement
Allowance, it being the parties intention and understanding that Landlord shall
not be required to go "out-of-pocket" in excess of the Tenant Improvement
Allowance. Tenant shall not be entitled to receive, by payment, credit or
otherwise, any unused portion of the Tenant Improvement Allowance. The payment
of the Tenant Improvement Allowance to Tenant shall be subject to the following
conditions:
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(1) The improvements shall be made to the Premises within twelve (12)
months of the date hereof. If Tenant fails to make such improvements within
said twelve (12) month period, the Annual Basic Rent hereunder shall be
appropriately reduced to reflect the actual total amount of the Tenant
Improvement Allowance that was not disbursed to Tenant. Such reduction shall be
calculated by amortizing the undisbursed portion of the Tenant Improvement
Allowance on a straight-line basis over the remaining Term of the Lease
beginning with the next succeeding calendar year. Landlord and Tenant shall
promptly execute an Amendment of Lease to incorporate such change.
(2) In the event Tenant is in default of this Lease (after the expiration
of any applicable notice or cure period) at the time Landlord's payment of
Tenant's Improvement Allowance is due to Tenant, Landlord shall have the right
to setoff and deduct from the Tenant Improvement Allowance due to be paid to
Tenant any sums then due from Tenant to Landlord.
2.1.6 HVAC UPGRADE. In accordance with Section 2.1.6 of the Xxxxxxx Road
------------
Lease, Landlord agreed that, upon Tenant's written request, if given within
eighteen (18) months after the Term Commencement Date of the Lease, Landlord
would perform an "HVAC Upgrade" (as defined therein) and provide the "Shared
Upgrade Allowance" therefor. Tenant has not requested an HVAC Upgrade under the
Xxxxxxx Road Lease. Landlord hereby agrees to extend the deadline for
requesting an HVAC Upgrade under the Xxxxxxx Road Lease to December 31, 1996,
and further agrees that, subject to the terms and conditions of said Section
2.1.6 of the Xxxxxxx Road Lease, Tenant may also request an HVAC Upgrade for the
HVAC system serving either the Kiln Brook V Premises or the Premises demised
hereunder, by written request to Landlord on or before December 31, 1996,
provided that Landlord's aggregate contribution to the cost and expense for any
HVAC Upgrade work, to either the Kiln Brook V Premises or the Premises, shall be
limited to the Shared HVAC Allowance, and Tenant shall pay the full amount of
any such cost in excess of $25,000 as specified in the Xxxxxxx Road Lease. If
any balance of the Tenant Improvement Allowance remains after the completion of
Tenant's Work, Landlord shall first apply such balance against the cost and
expense of the HVAC Upgrade before applying, or requiring Tenant to pay, any
portion of the Shared Upgrade Allowance.
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2.2 APPURTENANT RIGHTS
Tenant shall have, as appurtenant to the Premises, the right to use, in
common with Landlord and other Building tenants (subject to reasonable rules of
general application promulgated from time to time by Landlord), those portions
of the Common Areas and Facilities necessary for access to, or for the use and
enjoyment of, the Premises, such as all parking and loading areas on the Land,
all entrances, driveways, service roads, sidewalks and walkways providing access
to such parking areas or the Land or the Building, all lobbies, entrances,
corridors, elevators, stairways and stairwells providing access to the Premises,
all rest rooms located on the same floor as any portion of the Premises, the
shower facilities on the first floor of the Building, and all pipes, ducts,
conduits, wires and other fixtures and mechanical systems serving the Premises
in common with the rest of the Building) (collectively, the "Common Areas and
Facilities"). Tenant shall also have the right to use the cafeteria in the
neighboring building commonly known as 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx, provided Landlord reserves the right to relocate said cafeteria
to another location within 00 Xxxxxxxx Xxxxxx or to the Building.
2.3 RESERVATIONS
Landlord reserves the right from time to time, upon reasonable advance
notice (except in emergency): (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; and (b) to alter or relocate any other Common Area and
Facilities. Installations, replacements and relocations referred to in clause
(a) above shall be located as far as practicable in the central core area of the
Building, above ceiling surfaces, below floor surfaces or within perimeter walls
of the Premises. No such installations, replacements or relocations shall (i)
result in a reduction of the leasable area of the Premises, (ii) materially
interfere with Tenant's access to the Premises, the Building or the parking and
loading areas on the Land, or (iii) reduce the number of parking spaces
available to Tenant below the number required under Section 2.1. and Landlord
shall at all times use reasonable efforts to avoid material interference with
Tenant's use and business activities at the Premises.
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2.4 TERM
The Term shall begin at 12:01 a.m. on the "Term Commencement Date".
Notwithstanding the Term Commencement Date specified in Section 1.1, if for any
reason Landlord cannot deliver possession of the Premises to Tenant on said
date, then, except as specifically provided below, Landlord shall not be subject
to any liability therefor, nor shall such failure affect the validity of this
Lease or the obligations of Tenant hereunder; provided, however, in such a case,
the Term Commencement Date shall be postponed until possession of the Premises
is tendered to Tenant, as provided in Section 2.1, and the Rent Commencement
Date shall be postponed for the same number of days as the Term Commencement
Date is postponed.
If part, but not all, of the Premises are ready for delivery on September
23, 1996, Landlord may deliver and Tenant may elect to accept such portion of
the Premises and Landlord agrees to reimburse Tenant for the reasonable and
documented increase in the costs and expenses of Tenant's construction resulting
directly from the staggered delivery of the Premises to Tenant. If it becomes
necessary to deliver the Premises in stages, Landlord shall use its best efforts
to deliver to Tenant the "Critical Area" shown on Exhibit B on September 23,
1996 or as soon thereafter as possible.
If Landlord fails to deliver all of the Premises to Tenant on or before
December 1, 1996, Tenant shall have the right, as its sole remedy therefor, to
terminate this Lease by giving written notice to Landlord on or before December
13, 1996 (and prior to the delivery of the Premises), and upon Landlord's
receipt of such notice this Lease shall terminate and the parties shall have no
further obligations or liabilities to each other hereunder.
Landlord and Tenant shall, at the request of either after the beginning of
the Term, execute and acknowledge a verification letter specifying the Term
Commencement Date, Rent Commencement Date and Term Expiration Date and other
basic lease information, in the form attached hereto as Exhibit C.
2.5 ANNUAL FIXED RENT
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Annual Fixed Rent shall be the sum of Annual Basic Rent plus any Tenant
Electricity Cost at the rates specified in Section 1.1. Tenant covenants and
agrees to pay Annual Fixed Rent as hereinafter defined to Landlord in advance in
equal monthly installments on the first day of each calendar month during the
Term beginning on the Rent Commencement Date. All payments shall be due without
billing or demand and without deduction, setoff or counterclaim except as
otherwise specified in this Lease. If the Term includes at its beginning or end
a portion of a calendar month, the monthly installment of Annual Fixed Rent
payable with respect to such portion shall be prorated based on the number of
days in such month occurring during the Term. All payments shall be payable to
Landlord c/o Landlord's Managing Agent at its address as specified in Section
1.1, or to such other entities at such other places as Landlord may from time to
time designate.
2.6 ADDITIONAL RENT - TAXES AND OPERATING EXPENSES
2.6.1 Additional Rent - General Covenant. Tenant covenants and agrees to
pay to Landlord, as additional rent in accordance with the method set forth in
Section 2.6.2, an amount equal to the product of (a) the Rentable Floor Area of
the Premises and (b) the excess (if any) of Landlord's Operating Expenses per
square foot allocable to Tenant over Base Operating Expenses Per Square Foot (as
specified in Section 1.1). Except as provided in the next sentence, Landlord's
Operating Expenses per square foot allocable to Tenant for any period shall be
the total amount of Landlord's Operating Expenses for such period (actual or
extrapolated, as described herein) divided by the greater of (i) the actual
percentage of rentable floor area of the Building actually occupied during such
period or (ii) 95% of the Total Rentable Floor Area of the Building provided
that if less than 95% of the Total Rentable Floor Area of the Building is
occupied at any time during such period and any components of Landlord's
Operating Expenses vary based on the degree of occupancy in the Building,
Landlord may extrapolate such components of Landlord's Operating Expenses as
though the Total Rentable Floor Area of the Building had been occupied at all
times during such period. If Landlord is not obligated to furnish electricity,
cleaning and janitorial services, or any other item services, the costs of which
are included in Landlord's Operating Expenses, to all rentable areas of the
Building or if Landlord furnishes amounts of any such item services to the
Premises in return for direct reimbursement of the cost
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thereof (any such item not furnished to all rentable areas or furnished to any
rentable areas on a direct reimbursement basis is referred to as a "restricted
item"), Landlord's Operating Expenses per square foot allocable to Tenant for
any period shall be the sum of the following amounts (x) and (y):
(x) For each restricted item included in Landlord's Operating Expenses and
furnished to the Premises, the cost of such item for the period divided by the
total Rentable Floor Area of all premises to which the item is then furnished,
or if such item is a directly reimbursable item (not payable under another
provision of this Lease), the amount of direct reimbursement divided by the
Rentable Floor Area of the Premises.
(y) For all other items other than restricted items included in Landlord's
Operating Expenses, the amount per square foot thereof allocable to Tenant in
accordance with the second sentence of this Section 2.6.1.
If the Term includes less than any portion of a calendar year, Tenant's
liability hereunder shall be prorated based on the number of days in such
portion of a calendar year occurring during the Term and the nature of the
expenses allocable to such period.
2.6.2 Payment. Additional rent for Operating Expenses under this Section
2.6 shall be paid for any portion of a month at the beginning of the Term and
thereafter in monthly installments on the first day of each calendar month in
amounts reasonably estimated by Landlord for the then current year. Within 90
days after the end of each calendar year, Landlord will provide Tenant with a
written accounting, certified by a representative of Landlord, of actual
Landlord's Operating Expenses and Landlord's Operating Expenses per square foot
allocable to Tenant for the then preceding calendar year and other data
necessary to calculate additional rent hereunder prepared by Landlord in
accordance herewith and otherwise in accordance with generally accepted
accounting principles, together with the amount of the estimated monthly payment
for the ensuing year. Landlord may from time to time revise such estimate based
on more current information relating to Landlord's Operating Expenses. Upon
issuance of Landlord's annual accounting, there shall be adjustments between
Landlord and Tenant for the applicable calendar year to the end that Landlord
shall have received the exact amount of additional rent due hereunder. Any
overpayments by
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Tenant hereunder shall be credited against the next payments of additional rent
due under this Section 2.6.2, subject to the last sentence of this Section
2.6.2. Any underpayments by Tenant shall be due and payable within thirty (30)
days of receiving such accounting. With respect to the calendar year in which
the Term ends, the adjustments shall be pro rated for the portion of the year
included in the Term, but shall take place nevertheless at the times provided in
the preceding sentences; and any overpayments by Tenant in such year shall be
refunded upon such adjustment at the time of the delivery to Tenant of such
accounting.
Tenant shall have the right to audit Landlord's books and records
concerning Landlord's Operating Expenses, provided Tenant exercise such right by
written notice to Landlord within sixty (60) days following its receipt of
Landlord's annual statement, and Tenant shall conduct such audit within ninety
(90) days after its notice exercising such right, time being of the essence.
Landlord's annual statement shall be conclusive, final and binding if Tenant
does not timely exercise its audit right and conduct its audit within the time
set forth above. Any such audit shall be performed during usual business hours
at the Building Manager's office, without unreasonable interference with the
conduct of business. Tenant shall be solely responsible for the cost of
Tenant's audit, provided that in the event Landlord annual statement overstates
Operating Expenses by five percent (5%) or more, Landlord shall reimburse Tenant
for the reasonable cost of the audit.
2.6.3 "Landlord's Operating Expenses" - Definition. "Landlord's Operating
Expenses" means all costs of Landlord in owning or leasing (as the case may be),
servicing, operating, managing, maintaining, and repairing the Building and
Land, and providing services to tenants, including, without limitation, the
costs of the following: (i) supplies, materials and equipment purchased or
rented for use in the operation, maintenance, management, security, cleaning or
repair of the Building or Landlord's total wage and salary costs paid to and on
account of any building manager or other employees of Landlord reporting to the
building manager to the extent such employees are engaged in the operation,
maintenance, management, security, cleaning and repair of the Building and Land,
including employment taxes and so-called "fringe benefits"; (i-a) payments under
service contracts to the extent relating to the operation, maintenance,
management
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security, cleaning or repair of the Building or the Land; (ii) building services
generally furnished to tenants of the Building at Landlord's expense (including
the types of services furnished to Tenant pursuant to Section 4.1 hereof) and
maintenance of and services provided to or on behalf of the Building performed
by Landlord's employees or by other persons under contract with Landlord or
Landlord's Managing Agent; (iii) utilities consumed and expenses incurred in the
operation and maintenance of the Building and Land including, without
limitation, oil, gas, electricity (including electricity serving Tenant in the
Premises and other tenants in their premises), water, sewer and snow removal;
(iv) premiums for insurance covering the Building or the Land; (v) management
fees not to exceed four and one-half percent (4.5%) of gross Building income
plus an imputed cost for any space in the Building occupied without charge by
the Managing Agent; and (vi) "Landlord's Taxes" as defined below. Operating
Expenses shall include only those capital expenditures incurred, and capital
items purchased, for the purpose of reducing or conserving the use of energy in
the Building, reducing Landlord's Operating Expenses, or to comply with
applicable laws, rules or regulations enacted or promulgated after the date of
this lease, and the amount of such expenditure or the cost of such item shall be
amortized over the useful life of such item in accordance with generally
accepted accounting principles, with interest at the so-called base rate from
time to time announced by the Bank of Boston at its head office in Boston,
Massachusetts, and the amount included in Landlord's Operating Expenses for any
calendar year shall be limited to the annual amortized charge (including
interest). Notwithstanding anything to the contrary contained herein, Landlord's
Operating Expenses shall not include any costs and expenses relating to the
following: (i) the construction and development of the Building; (ii) payments
of ground rent; (iii) salaries of executives or principals of Landlord (except
as the same may be reflected in the management fee for the Building or
attributable to actual Building operations); (iv) principal, interest and other
charges relating to indebtedness secured by a mortgage covering any portion of
the Building or the Land; (v) leasehold improvements which are made in
connection with the preparation of any portion of the Building for occupancy by
a new tenant or which are not provided generally for the benefit of all tenants
of the Building; (vi) costs, expenses or other charges properly chargeable or
attributable to a particular tenant or tenants, other than Tenant; (vii) efforts
to lease portions of the
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Building or to procure new tenants for the Building, including advertising and
leasing commissions and attorneys' fees; (viii) depreciation of the Building,
the Common Areas or any other improvements on the Land; (ix) repairs and
replacements arising out of a fire or other casualty occurring at the Building
or the Land, provided that Landlord may include in Landlord's Operating Expenses
the amount of any insurance deductible or retainage paid by Landlord but not
more than $25,000 per occurrence; (x) fees, fines or penalties arising out of
Landlord's breach of any obligation (contractual or at law), including
attorneys' fees; (xi) wages and benefits of any employee, contractor or agent to
the extent such employee, contractor or agent does not devote his or her time to
the operation, maintenance, security, cleaning or repair of the Building or the
Land, provided that Landlord may include in Landlord's Operating Costs the
Building's allocable share of the wages and benefits of employees, contractors
and agents engaged in the maintenance, security, cleaning or repair of all of
Landlord's and Landlord's affiliates buildings and property in the Kiln Brook
Office Park, as may be reasonably determined by Landlord; (xii) salaries of
executives or principals of Landlord; (xiii) compensation paid to employees or
other persons in connection with commercial concessions operated by Landlord;
(xiv) fees for licenses, permits or inspections that are not part of routine
maintenance or result from the negligence or willful misconduct of Landlord, its
employees, agents or contractors, or any other tenant or occupant of the
Building; (xv) environmental compliance, testing or remediation; (xvi)
compliance by Landlord with laws existing as of the date of this Lease,
including without limitation the American With disabilities Act (as such laws
apply to the Building generally and not as to any tenant's particular use); (xv)
sculpture, paintings and other works of art; (xvi) repairs necessary to cure
defects in the construction of the Building and (xvii) any capital expenditures
not specifically included in this Section 2.6.3.
"Landlord's Taxes" means all taxes, assessments and similar charges
assessed or imposed by any governmental authority upon the Building and Land
(and upon personal property situated thereon or therein and used in the
operation and maintenance of the Building and Land), reduced by any net amounts
received as an abatement or reduction of taxes to the extent any such abatement
applies to a tax year (or part thereof) occurring during the Term hereof. If
any such abatement or reduction of taxes has the effect of reducing
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Landlord's Operating Expenses which make up Base Operating Expenses per Square
Foot, then payments of additional rent under Sections 2.6.1 and 2.6.3 hereof
shall be recalculated reflecting the corrected Base Operating Expenses per
Square Foot, and any overpayments or underpayments will be dealt with in
accordance with Section 2.6.2. The amount of special taxes or special
assessments included in Landlord's Taxes for any year shall be limited to the
amount of the installment (plus any interest, other than penalty interest,
payable thereon) of such special tax or special assessment required to be paid
during or with respect to the year in question. Landlord's Taxes include
expenses, including reasonable fees of attorneys, appraisers and other
consultants, incurred in connection with any efforts to obtain abatements or
reductions or to assure maintenance of Landlord's Taxes for any year wholly or
partially included in the Term, whether or not successful and whether or not
such efforts involved filing of actual abatement applications or initiation of
formal proceedings. Landlord's Taxes exclude income taxes of general application
and all estate, succession, inheritance and transfer taxes. If at any time
during the Term the present system of ad valorem taxation of real property shall
be changed so that, in addition to or in lieu of the whole or any part of the ad
valorem tax on real property there shall be assessed on Landlord a capital levy
or other tax on the gross rents or other measures of building operations, or a
governmental income, franchise, excise or similar tax, assessment, levy, charge
or fee (distinct from any such tax now in effect in the jurisdiction in which
the Building is located) measured by or based, in whole or in part, upon gross
rents or other measures of building operations or benefits of or governmental
services furnished to the Building or Land, then any and all of such taxes,
assessments, levies, charges and fees, to the extent so measured or based, shall
be included within the term Landlord's Taxes, but only to the extent that the
same would be payable if the Building and Land were the only property of
Landlord.
ARTICLE III
CONSTRUCTION OF BUILDING; FINISH WORK
3.1 CONSTRUCTION OF BUILDING
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Intentionally Deleted.
3.2 CONSTRUCTION FOR TENANT - FINISH WORK
Intentionally Deleted. (See Section 2.1).
3.3 COMPLIANCE WITH LEASE
Intentionally Deleted.
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ARTICLE IV
LANDLORD'S COVENANTS
4.1 LANDLORD'S COVENANTS
4.1.1 Building Services. Landlord shall furnish services, utilities,
-----------------
facilities and supplies set forth in this Section 4.1.1. Tenant may obtain
additional services, utilities, facilities and supplies from time to time upon
reasonable advance request or Landlord may furnish the same without request if
Landlord reasonably determines that the same are required for the proper care of
the Premises as a result of uses, events or functions which are unusual or
excessive for general office space, and, in either case, the cost of the same
(including related expenses such as costs for meter installation and
maintenance) at reasonable and competitive rates from time to time established
by Landlord shall constitute a restricted item allocable to the Premises under
Section 2.6.1.
4.1.1.1 Water Charges. Landlord shall furnish hot and cold water for
-------------
ordinary office cleaning, toilet, lavatory, kitchenette and drinking purposes.
If Tenant requires, uses or consumes water for any other purpose, Landlord may
either assess on Tenant reasonable charges for additional water, or install a
water meter to measure Tenant's consumption. (The cost of installation and
maintenance of any such meter shall be borne by Tenant.) If Tenant's water
consumption is measured by a separate meter, Tenant shall pay for all water so
consumed together with the sewer charges based on said meter charges as and when
bills are rendered. All piping and other equipment and facilities for use of
water outside the Building core will be installed and maintained by Landlord at
Tenant's cost and expense.
4.1.1.2 Elevator, Heat, Electricity and Cleaning. Landlord, at its
----------------------------------------
expense, shall: (i) provide necessary elevator facilities on Mondays through
Fridays excepting legal holidays from 7:00 a.m. to 6:00 p.m. (such hours on such
days being referred to as "business days") and have at least one elevator in
operation available for Tenant's non-exclusive use at all other times; (ii)
furnish heat reasonable and customary for first-class office buildings to the
Premises during the normal heating season from
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7:00 a.m to 6:00 p.m. Mondays through Fridays and 7:00 a.m. to 1:00 p.m. on
Saturdays (excepting legal holidays); (iii) furnish electricity to the Premises
sufficient for normal office uses, including work stations, personal computers
and other standard office equipment but excluding special uses such as raised
floor computer rooms, main frame computers and other machinery with high
electrical consumption (Landlord will furnish electricity for such special uses
provided Tenant pays extra costs associated therewith including costs associated
with sub-metering); and (iv) cleaning service to the Premises and Common Areas
and Facilities in accordance with the standards set forth on Exhibit D attached
hereto.
4.1.1.3 Air-conditioning. Landlord shall, through the Building air-
----------------
conditioning system, furnish to and distribute in the Premises air-conditioning
as normal seasonal changes may require on business days when air-conditioning
may reasonably be required for the comfortable occupancy of the Premises by
Tenant according to customary standards in first-class office buildings. If
Tenant requests air conditioning for times other than such business days,
Landlord may charge Tenant for such air conditioning at an hourly rate as
reasonably determined by Landlord to be the fair market rate for such service,
including reasonable administrative charges related to the provision of such
service, provided such cost shall not exceed $12.00 per hour during the initial
five year term of this Lease. If Tenant requires additional air-conditioning
for business machines, meeting rooms or other purposes, or because of unusual
occupancy or unusual electrical loads, any additional air-conditioning units,
chillers, condensers, compressors, ducts, piping and other equipment will be
installed and maintained by Landlord at Tenant's sole cost and expense, but only
to the extent that the same are compatible with the Building and its mechanical
systems.
4.1.1.4 Energy Conservation. Tenant agrees to cooperate with Landlord and
-------------------
to abide by all Building reasonable regulations applying generally to all
occupants of the Building which Landlord may, from time to time, prescribe for
the proper functioning and protection of the heating and air-conditioning
systems and in order to maximize the effect thereof and to conserve heat and
air-conditioning. Notwithstanding anything to the contrary in this Section
4.1.1 or otherwise in this Lease, Landlord may institute such policies, programs
and measures as may be in Landlord's
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reasonable judgment necessary, required or expedient for the conservation or
preservation of energy or energy services, or as may be necessary to comply with
applicable codes, rules, regulations or standards taking effect after the date
of this Lease, provided however, except for programs or measures required by
governmental or regulatory authority or otherwise beyond Landlord's reasonable
control, such policies, programs and measures shall not materially adversely
interfere with Tenant's business operations at the Premises.
4.1.2 Repairs. Except as otherwise provided in this Lease, and except for
-------
repairs to items referred to below necessitated by Tenant's negligence or
willful misconduct (which shall be Tenant's repair obligation under Section
5.2), Landlord shall make such repairs to the Building structure, roof, exterior
walls, floor slabs, and Common Areas and Facilities as may be necessary to keep
them in good condition, order and repair consistent with a first class office
building. Landlord shall remove snow and ice from the exterior portions of the
Common Areas and Facilities, consistent with similar service for a first class
office building. Landlord shall be responsible for complying with all laws,
regulations, orders, by-laws or ordinances applicable to the Building or the
Land generally, as opposed to laws, regulations, orders and the like applicable
to Tenant's or any other tenant's use and occupancy.
4.1.3 Office Identification. Landlord shall provide and install, at no
---------------------
expense to Tenant (for the initial installation), (a) letters or numerals on
entry doors to the Premises and on the directory in the lobby of the Building to
identify Tenant's official name and Building address and (b) letters and
numerals on the existing exterior monument sign to identify Tenant's official
name. Tenant's name shall be listed on said exterior monument sign with other
tenants of the Building, provided Tenant shall have the largest panel or
lettering, as the case may be. All such letters and numerals shall be in the
Building standard graphics and no other signs shall be used or permitted on the
exterior of the Premises. Tenant's exterior sign rights shall be subject to the
groundlessor's consent and compliance with applicable legal requirements.
Subject to Landlord's reasonable approval, Tenant shall also have the right to
install as sign bearing Tenant's name on the side of the Building of a size and
design and in a location that shall comply with all applicable laws.
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4.1.4 Quiet Enjoyment. Landlord covenants that Tenant, on paying the rent
---------------
and performing the tenant obligations in this Lease, shall peacefully and
quietly have, hold and enjoy the Premises, subject to all of the terms and
provisions hereof.
4.1.5 Access. Tenant and its employees, agents, contractors and
------
invitees shall have access to the Premises at all times unless due to causes
beyond Landlord's reasonable control. Landlord shall provide unrestricted
access to the Building by Tenant and its agents, employees, contractors and
invitees during business days. Landlord shall provide keys or access cards to
Tenant to permit access by Tenant to the Building during times other than
business days.
4.2 INTERRUPTION
Landlord shall not be liable to Tenant for any compensation or reduction of
rent by reason of inconvenience or annoyance or for loss of business arising
from the necessity of Landlord or its agents entering the Premises for any of
the purposes authorized in this Lease or for repairing the Premises or from
repairs by Landlord of any portion of the Building however the necessity may
occur, provided, however, that Landlord shall at all times use reasonable
efforts to avoid material interference with Tenant's use of, and business
operations at, the Premises, and Landlord shall remain liable for the negligence
and willful misconduct of its employees, agents and contractors. In case
Landlord is prevented or delayed in making any repairs, alterations or
improvements, or furnishing any services or performing any other covenant or
duty to be performed on Landlord's part, by reason of any cause reasonably
beyond Landlord's control, Landlord shall not be liable to Tenant therefor nor,
except as otherwise provided hereinbelow and in Section 6.1, shall Tenant be
entitled to any abatement or reduction of rent by reason thereof, nor shall the
same give rise to a claim in Tenant's favor that such failure constitutes actual
or constructive, total or partial, eviction from the Premises. In no event
shall Landlord be liable for indirect or consequential damages. Notwithstanding
the foregoing, if any interruption in services to the Premises persists for more
than five (5) days and has a material, adverse effect on Tenant's business
operations, the Basic Annual Rent due hereunder shall xxxxx according to the
nature
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and extent of such adverse effect during the continuance of such interruption,
as Tenant's sole remedy.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed; provided, however, that in each instance of stoppage, Landlord
shall exercise reasonable diligence to eliminate the cause thereof as promptly
as possible. Except in case of emergency, repairs Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use reasonable
efforts to avoid unnecessary inconvenience to Tenant by reason thereof.
ARTICLE V
TENANT'S COVENANTS
5.1 RENT, UTILITIES
Tenant covenants and agrees to pay when due all fixed rent and additional
rent and all charges for utilities and services rendered to the Premises and for
all other matters for which Tenant is responsible hereunder.
5.2 MAINTENANCE AND REPAIR
Except for damage by eminent domain, fire or casualty and reasonable wear,
Tenant shall at all times keep the Premises clean and in as good repair, order
and condition as the same are at the beginning of the Term or may be put in
thereafter.
5.3 USE, WASTE AND NUISANCE
Throughout the Term, Tenant shall use the Premises for the Permitted Uses
only. Tenant shall not injure, overload, deface or commit waste in the Premises
or any part of the Building or anywhere on the Land, nor permit the occurrence
of any nuisance therein or the emission therefrom of any objectionable noise or
odor, nor use or permit any use of the Premises, Building or Land which is
improper, offensive, contrary to law or ordinance or which is liable to
invalidate or increase the premium for any insurance on the Building or its
contents or which is liable to render
20
necessary any alterations or additions in the Building, nor obstruct in any
manner any portion of the Building or the Land. If Tenant uses the Premises for
other than general office purposes (without in any way suggesting or implying
that Tenant has the right to do so) and such use results in an increase in the
premium for any insurance on the Building or its contents, Landlord shall notify
Tenant of such increase and Tenant shall pay same as additional rent. Tenant may
not, without Landlord's consent, install in the Premises any water fountains,
water-connected coffee makers, water-connected refrigerators, sinks or cooking
equipment, provided that Landlord's consent will not be unreasonably withheld
with respect to items designed for the convenience of Tenant's employees and
further provided that Landlord determines that special venting or other matters
are not required in connection therewith. Landlord consents to the installation
of kitchenettes in the Premises as part of the initial construction, subject to
and in accordance with Section 2.1. and Landlord also consents to the use of
bottled water dispensers for the convenience of Tenant's employees.
5.4 RULES AND REGULATIONS
Tenant shall conform to all reasonable rules and regulations of general
application to all occupants of the Building now or hereafter promulgated by
Landlord for the care and use of the Premises, the Building and the Land. The
current rules and regulations are attached hereto as Exhibit E.
5.5 SAFETY APPLIANCES
Tenant shall keep the Premises equipped with all safety appliances and
permits which, as a result of Tenant's particular activities, are required by
law or ordinance or any order or regulation of any public authority, shall keep
the Premises equipped at all times with adequate fire extinguishers and other
such equipment reasonably required by Landlord law, and, upon notice by
Landlord, shall make all repairs, alterations, replacements, or additions so
required as a result of Tenant's particular activities. To the best of
Landlord's knowledge (having made no inquiry), neither the Premises, the
Building or the Land are in material violation of any applicable laws,
regulations, orders, by-laws or ordinances, and, to the best of Landlord's
knowledge (having made no inquiry), the Building contains adequate
21
safety appliances (however, each Tenant is required to properly equip its leased
premises with safety appliances and Landlord makes no representation with
respect thereto).
5.6 INDEMNIFICATION AND INSURANCE
Tenant shall save Landlord, its partners, officers, directors, agents,
employees, mortgagees, ground lessors (collectively the "Indemnitees") harmless
and indemnified (and shall defend the Indemnitees with counsel reasonably
approved by the Indemnitees) against any claim or loss arising out of any
injury, loss or damage to any person or property while on or in the Premises or
in transit thereto or therefrom if not due to negligence or willful misconduct
of the Indemnitees, and to any person or property anywhere occasioned by the
negligence or willful misconduct of Tenant or of the employees, agents,
independent contractors or invitees of Tenant. In addition to the foregoing,
Landlord may make all repairs and replacements to the Building resulting from
the negligence or willful misconduct of Tenant's employees, agents, independent
contractors or invitees (including damage and breakage occurring when Tenant's
property is being moved into or out of the Building) and Landlord may recover
all costs and expenses thereof from Tenant as additional rent. Tenant shall
maintain in a responsible company or companies approved by Landlord, liability
insurance in form reasonably satisfactory to Landlord, insuring the Indemnitees
and other parties designated by Landlord, and Tenant, as their respective
interests may appear, against all claims, demands or actions for injury, death,
and property damage in amounts not less than those specified in Section 1.1 (as
such amounts may, from time to time, be reasonably increased by Landlord
consistent with requirements of similar tenants at similar properties). Such
insurance shall provide that it will not be subject to cancellation,
termination, or change except after at least 30 days' prior written notice to
the Indemnitees. The policy or policies, or a duly executed certificate or
certificates for the same, together with satisfactory evidence of the payment of
the premium thereon, shall be deposited with the Indemnitees at the beginning of
the Term (or upon Tenant's first entry onto the Premises to perform Tenant's
Work, if earlier) and, upon renewals of such policies, not less than 30 days
prior to the expiration of the term of such coverage. If Tenant fails to comply
with any of the foregoing requirements after notice (which may be by telephone
or facsimile transmission) and the expiration of three (3) business
22
days, except in the case of emergency, Landlord may obtain such insurance on
behalf of Tenant and may keep the same in effect, and Tenant shall pay Landlord,
as additional rent, the premium cost thereof upon demand.
5.7 TENANT'S PROPERTY
All furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Tenant and of all persons claiming through Tenant
which from time to time may be on the Premises or elsewhere in the Building or
in transit thereto or therefrom 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 be borne by the Indemnitees, except that the Indemnitees
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 such indemnity, hold harmless or exoneration is
prohibited by law or to the extent the loss or liability is due to the
negligence or willful act of the Indemnitees, their agents or employees.
5.8 ENTRY FOR REPAIRS AND INSPECTIONS
Tenant shall permit Landlord and its agents, upon reasonable advance
written notice except in an emergency, to enter and examine the Premises at
reasonable times and, if Landlord shall so elect, to make any repairs or
replacements Landlord may deem necessary, to remove at Tenant's expense, any
alterations, additions, signs, curtains, blinds, shades, awnings, aerial
flagpoles, or the like not consented to in writing, and to show the Premises to
prospective purchasers and mortgagees and, during the twelve (12) months
preceding expiration of the Term, to prospective tenants, all during reasonable
business hours, provided, however, that Landlord shall use reasonable efforts to
avoid material interference with Tenant's use of, and business operations at,
the Premises.
5.9 EXPENSES AND ATTORNEYS' FEES
23
Tenant shall pay as additional rent Landlord's expenses, including
reasonable attorneys' fees, incurred in enforcing any obligations of Tenant
under this Lease with which Tenant has failed to comply. Landlord shall pay
Tenant's expenses, including reasonable attorneys' fees, incurred in enforcing
any obligations of Landlord under this Lease with which Landlord has failed to
comply.
5.10 ASSIGNMENT, SUBLETTING
Tenant shall not assign this Lease, or sublet or license the Premises or
any portion thereof or permit the occupancy of all or any portion of the
Premises by anybody other than Tenant without obtaining, on each occasion, the
prior consent of the Landlord, not to be unreasonably withheld or delayed;
provided, however, that Tenant may, without Landlord's consent but, except as
provided below, with not less than ten (10) business days prior notice to
Landlord (i) assign this Lease or sublet any portion of the Premises to any
corporation, partnership or other business organization controlling, controlled
by or under common control with Tenant (and provided Tenant and such affiliated
entity remain affiliated), or (ii) assign this Lease in connection with the sale
of all or substantially all of Tenant's assets or (iii) assign this lease
pursuant to (a "Merger Event") a merger or consolidation of Tenant into any
other firm or corporation, or (iv) assign this lease pursuant to (a "Controlling
Stock Transfer") the transfer or sale of a controlling interest in Tenant,
whether by sale of its capital stock or otherwise (any of the foregoing referred
to as an "Affiliate Transfer").
Notwithstanding the foregoing, Tenant shall not be required to give
Landlord ten (10) days prior written notice of a Controlling Stock Transfer,
provided that Tenant shall use its best efforts to give such notice and Tenant
shall, in any event, give Landlord notice thereof as soon as Tenant has
knowledge thereof. For the purposes of this notice obligation, a Controlling
Stock Transfer shall be deemed to have occurred when one stockholder (or a group
of affiliated stockholders) shall own and hold more than 50% of the outstanding
voting stock of Tenant.
Notwithstanding the foregoing, (i) an assignment of this lease as a result
of a Merger Event shall only be treated as an "Affiliate Transfer" if such event
is pursued and completed by
24
Tenant for a legitimate corporate business purpose and not to avoid Tenant's
obligations under this lease or to circumvent the need to obtain Landlord's
consent hereunder, and (ii) if the assignee subsequently elects to lease
additional space from Landlord pursuant to the provisions of Article XIII hereof
and Landlord provides Tenant with an improvement allowance or other funding for
tenant improvements for any such additional space, and the net worth of the
assignee at the time the assignee exercises its right to lease such additional
space is less than the net worth of the original named Tenant herein at the time
of the Merger Event, then as a condition precedent to Landlord's obligations to
fund such tenant improvements and as security therefor, Tenant shall obtain and
deliver to Landlord a Letter of Credit (conforming with the provisions of
Article X of the Xxxxxxx Road Lease) in an amount equal to one-third of the cost
of such tenant improvement allowance and other funding from Landlord, which
Letter of Credit shall be maintained by Tenant for the balance of the lease
Term.
Notwithstanding the requirement of prior notice to Landlord of an Affiliate
Transfer, Tenant shall not be required to provide Landlord with material non-
public information, provided that Tenant shall notify Landlord of a proposed
Affiliate Transfer as soon as reasonably practicable and in any event as soon as
any transaction which shall result in an Affiliate Transfer is announced to the
public.
Tenant's request for consent to an assignment or subletting and Tenant's
notice to Landlord of an Affiliate Transfer shall include a copy of the proposed
instrument of assignment or subletting, if available, or else a statement of the
proposed assignment or subletting in detail satisfactory to Landlord, together
with reasonably detailed financial, business and other information about the
proposed assignee or sublessee and, in the case of an Affiliate Transfer, its
relationship with Tenant.
Without limiting the reasons for which Landlord may withhold consent,
Landlord's withholding shall be deemed reasonable if Landlord determines that a
proposed assignee's or sublessee's financial condition would not be acceptable
to Landlord on a direct lease of the space in question, notwithstanding that the
original Tenant is required to remain primarily liable therefor hereunder.
Tenant shall not offer to make or enter into negotiations with
25
respect to an assignment or subletting for use other than first class general
office use.
Except in the case of an Affiliate Transfer, if Tenant proposed to (x)
assign this Lease or (y) sublet any portion of the Premises for the balance of
the Term of this lease (inclusive of extension periods available to the
sublessee but not including unexercised extension periods under this lease),
Landlord shall have the option (but not the obligation) to terminate the Lease
(but only with respect to the portion of the Premises which Tenant proposes to
sublet in the case of a proposed subletting) effective upon the date of the
proposed assignment and continuing for the proposed term thereof by giving
Tenant notice of such termination within thirty (30) days after Landlord's
receipt of Tenant's request. If Landlord exercises its right to terminate this
Lease with respect to a portion of the Premises, Landlord will have the right to
demise such space and provide access thereto for the purpose of leasing such
space.
If Tenant does make an assignment (other than an Affiliate Transfer) of
this lease or in connection with any subletting of up to fifty percent (50%) of
the rentable floor area Premises, Tenant shall pay to Landlord, as additional
rent, fifty percent (50%) of the amount (the "Net Sublet Profit") by which the
aggregate rent and other charges payable to Tenant under and in connection with
such assignment or subletting (including without limitation any amounts paid for
leasehold improvements) exceeds the rent and other charges paid hereunder,
provided Tenant shall first be permitted to recover the reasonable costs
incurred in connection such assignment or subletting (the "Net Sublet Profit").
In connection with any subletting in excess of fifty percent (50%) of the
rentable floor area Premises, Tenant shall pay to Landlord, as additional rent,
one hundred percent (100%) the Net Sublet Profit.
Tenant shall pay to Landlord, as additional rent, Landlord's reasonable
legal fees and other reasonable out-of-pocket expenses incurred in connection
with any proposed assignment or subletting, including fees for review of
documents and investigations of proposed assignees.
Notwithstanding any such assignment or subletting, the original Tenant
named herein shall remain directly and primarily
26
obligated under this Lease, notwithstanding any recognition (by acceptance of
rent or otherwise) or indulgence or waiver at any time granted to Landlord to
Tenant or any assignee or sublessee; and Tenant in the case of an Assignment
shall be deemed to have waived all defenses otherwise available to Tenant as
guarantor or surety. No consent to any assignment or subletting in a particular
instance shall be deemed a waiver of the obligation to obtain the Landlord's
consent in case of any other assignment or subletting. Any assignee of this
Lease shall have been deemed to assume all of the obligations and liabilities of
tenant, jointly and severally with Tenant, and any sublease shall be deemed
subject and subordinate to this Lease and to the Term hereof.
After any default by Tenant hereunder (and the expiration of any applicable
notice or cure period), Landlord shall have the right, upon written notice to
Tenant and any affected subtenant, to collect the rent and other charges due
under any sublease of the Premises directly from the subtenant and apply the
same to Tenant's obligations hereunder, without being deemed to have accepted
such subtenant as a direct tenant or to have waived any rights or remedies
against Tenant as the primary obligor under this lease.
5.11 ALTERATIONS, ADDITIONS, HEAVY EQUIPMENT, ETC.
Except as provided in Section 2.1 with respect to the initial improvements
to the Premises, Tenant shall not make any alterations or additions in or to the
Premises, nor erect or paint any sign or other identification on any window or
Premises entry door without obtaining Landlord's prior consent, which shall not
be unreasonably withheld, delayed or conditioned with respect to interior, non-
structural alterations. Notwithstanding the foregoing, after the completion of
Tenant's Work pursuant to Section 2.1, Tenant may make non-structural
alterations to the Premises of up to $25,000 in value without Landlord's prior
consent, but with prior notice to Landlord (which notice shall include an
estimate of the cost of such alterations and a work schedule). Tenant will not
bring into or install in the Premises any safes, or bulky or heavy furnishings,
equipment, or machines without the prior approval of Landlord as to methods of
transportation and installation (Landlord may prohibit installation if the
weight of any such item will exceed 125 pounds per square foot or if Landlord
reasonably decides that the same will cause vibration or noise to be transmitted
to the Building structure or to areas outside the Premises), nor shall
27
Tenant move any furniture, furnishings, equipment or machines into or out of the
Building except by prior arrangement with and approval of Landlord which shall
not be unreasonably withheld, delayed or conditioned.
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5.12 SURRENDER AND LIEN FOR RENT
At the expiration of the Term or earlier termination of this Lease, Tenant
shall peaceably give up and surrender the Premises without the requirement of
any notice, including any alterations, installations or additions and all
replacements thereof, including carpeting, any water or electricity meters, and
all fixtures (other than Tenant's trade fixtures) and alterations (including
partitions) in anyway bolted or otherwise attached to the Premises (which shall
become the property of Landlord), except such non-building standard equipment,
fixtures, work and the like as Landlord shall direct Tenant to remove.
Notwithstanding any provision of this Lease to the contrary, Tenant shall have
the right to remove (i) any Financed FFE to the extent permitted and subject to
the terms of Section 2.1.5, (ii) Tenant's trade fixtures and personal property,
and (iii) any cubicles or fabricated office partitions other than Financed FFE.
The Premises and such alterations, installations or additions shall be in as
good order, repair and condition as exists as of the Term Commencement Date,
damage by fire, casualty, eminent domain and reasonable wear excepted. Tenant
shall, at the time of termination, remove the goods, effects and fixtures which
Tenant is directed or permitted to remove in accordance with the provisions of
this Section making any repairs to the Premises and other areas necessitated by
such removal and leaving the Premises broom clean. Should Tenant fail to remove
any of such goods, effects, and fixtures, Landlord may have them removed
forcibly, if necessary, and store any of Tenant's property in a public warehouse
at the risk of Tenant; the expense of such removal, storage and reasonable
repairs necessitated by such removal shall be borne by Tenant or reimbursed by
Tenant to Landlord. Notwithstanding the foregoing, upon Tenant's written
request prior to making any alteration or installation to the Premises, Landlord
will notify Tenant as to whether the removal of such item will be required or
permitted upon the expiration or earlier termination of the Term.
5.13 PAYMENT FOR TENANT WORK
Tenant shall pay within 14 days after request the entire cost of any work
undertaken by Tenant in the Premises, including equipment, furnishings and
fixtures, so that the Premises shall always be free of liens for labor or
materials. Tenant shall
29
obtain all permits or licenses for such work. Tenant shall also indemnify and
save the Indemnitees harmless from all injury, loss, claims, liens or damage to
any person or property occasioned by or arising from such work. If any
mechanic's lien (which term shall include all similar liens relating to the
furnishing of labor and materials) is filed against the Premises or the Building
or any part thereof which is claimed to be attributable to work performed by or
at the request of Tenant, its agents, employees or contractors, Tenant shall
promptly discharge the same by payment thereof or filing any necessary bond.
5.14 PERSONAL PROPERTY TAXES
Tenant shall pay promptly when due all taxes (and charges in lieu thereof)
imposed upon personal property in the Premises, no matter to whom assessed
(including without limitation fixtures, equipment and any improvements which are
in excess of Building Standard).
ARTICLE VI
CASUALTY AND TAKING
6.1 DAMAGE BY FIRE OR CASUALTY
Landlord shall at all times maintain insurance covering the Building on an
all-risk basis with an extended coverage endorsement, in an amount not less than
80% of replacement cost of the Building. If the Premises or any part thereof
shall be damaged by fire or other insured casualty, then, subject to the last
paragraph of this Section 6.1, Landlord shall proceed with diligence, subject to
the then applicable statutes, building codes, zoning ordinances and regulations
of any governmental authority, and at the expense of Landlord (but only to the
extent of insurance proceeds made available to Landlord by any mortgagee of the
Building) to repair or cause to be repaired such damage, provided, however, all
repairs to and replacements of property which Tenant is entitled to remove shall
be made by and at the expense of Tenant. If the Premises or any part thereof
shall have been rendered unfit for use and occupation hereunder or access
thereto is denied (without reasonable substitute access having been provided) by
reason of such damage, the Annual Basic Rent or a
30
just and proportionate part thereof, according to the nature and extent to which
the Premises shall have been so rendered unfit or access is denied, shall be
abated until the Premises (except as to the property which is to be repaired by
or at the expense of Tenant) shall have been restored as nearly as practicable
to the condition in which they were immediately prior to such fire or other
casualty. Landlord shall not be liable for delays in the making of any such
repairs which are due to government regulation, casualties and strikes,
unavailability of labor and materials, and other causes beyond the reasonable
control of Landlord, nor shall Landlord be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting from delays in
repairing such damage due to any of the foregoing causes.
(i) If the Premises are so damaged by fire or other casualty (whether or
not insured) at any time during the last thirty months of the Term that the cost
to repair such damage is reasonably estimated to exceed one-third of the total
Annual Fixed Rent payable hereunder for the period from the estimated completion
date of repair until the end of the Term, (ii) if at any time the Building
(whether or not including any portion of the Premises) is so damaged by fire or
other casualty (whether or not insured) that, in Landlord's reasonable judgment,
demolition or substantial reconstruction is required and the leases for all
similarly situated tenants shall be terminated a result thereof, or (iii) if at
any time damage to the Building occurs by fire or other insured casualty and any
mortgagee or ground lessor shall refuse to permit insurance proceeds to be
utilized for the repair or replacement of such property and Landlord determines
not to repair such damage, then and in any of such events, this Lease and the
term hereof may be terminated at the election of Landlord by a notice from
Landlord to Tenant within sixty (60) days, or such longer period as is required
to complete arrangements with any mortgagee or ground lessor regarding such
situation, following such fire or other casualty, the effective termination date
which shall be not less than thirty (30) days after the day on which such
termination notice is received by Tenant. In the event of any termination, this
Lease and the Term hereof shall expire as of such effective termination date as
though that were the date originally stipulated in Section 1.1 for the end of
the Term and the Annual Fixed Rent shall be apportioned as of such date. Tenant
shall in no event be entitled to compensation or damages on account of annoyance
or
31
inconvenience in making any repairs, or on account of construction, or on
account of Landlord's election to terminate this Lease.
Notwithstanding the foregoing, Tenant shall have the right to terminate
following a fire or other casualty: (i) if the Premises (or access thereto as
the case may be) cannot reasonably be expected to be substantially complete (as
defined in Section 2.1.1) for Tenant's use within nine (9) months; or (ii) if
the Premises are not substantially completed to its condition before such fire
or other casualty within nine (9) months after notice to Landlord of such fire
or other casualty. Tenant may exercise such termination right, if at all, by
giving written notice to Landlord within thirty (30) days following the accrual
of such right, which notice shall specify a termination date not more than sixty
(60) days nor less than thirty (30) days after the day on which such termination
notice is received, and the termination shall be effective as of such date
(provided the Premises are not substantially restored prior thereto). Failure
of Tenant to exercise said election within said period shall constitute Tenant's
agreement to accept delivery of the Premises under this Lease, provided Landlord
thereafter pursues reconstruction or restoration diligently to completion,
subject to delays beyond Landlord's reasonable control.
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6.2 CONDEMNATION - EMINENT DOMAIN
In case during the Term all or any substantial part of the Premises or the
Building or material access thereto are taken by eminent domain or Landlord
receives compensable damage by reason of anything lawfully done in pursuance of
public or other authority, this Lease shall terminate at Landlord's election,
which may be made (notwithstanding that Landlord's entire interest may have been
divested) by notice given to Tenant within 90 days after the election to
terminate arises, specifying the effective date of termination. The effective
date of termination specified by Landlord shall not be less than 15 nor more
than 30 days after the date of notice of such termination. Unless terminated
pursuant to the foregoing provisions, this Lease shall remain in full force and
effect following any such taking, subject, however, to the following provisions.
If in any such case any portion of the Premises are is rendered unfit for use
and occupation and this Lease is not terminated, Landlord shall use due
diligence (following the expiration of the period in which Landlord may
terminate this Lease pursuant to the foregoing provisions of this Section) to
put the Premises, or what may remain thereof (excluding any items installed or
paid for by Tenant which Tenant may be required to remove pursuant to Section
5.12), into proper condition for use and occupation and a just proportion of the
Annual Fixed Rent and additional rent according to the nature and extent of the
injury and its effect on Tenant's business operations shall be abated until the
Premises or such remainder shall have been put by Landlord in such condition;
and in case of a taking which permanently reduces the area of the Premises, a
just proportion of the Fixed Rent and additional rent shall be abated for the
remainder of the Term.
Notwithstanding the foregoing, Tenant shall have the right to terminate
this lease following a taking by eminent domain (or other transfer in lieu
thereof): (i) if more than twenty-five (25%) of the Premises then occupied and
in use by Tenant are taken, or (ii) if access to the Premises is denied as a
result thereof and Landlord fails or is unable to provide reasonable substitute
access. Tenant may exercise such termination right, if at all, by giving
written notice to Landlord within thirty (30) days following such taking,
specifying a termination date not more than sixty (60) days nor less than thirty
(30) days after the day on which such
33
termination notice is received, and the termination shall be effective as of
such date.
6.3 EMINENT DOMAIN AWARD
Except for Tenant's relocation expenses and damages to Tenant's trade
fixtures and personal property (which may be separately awarded to Tenant and
specifically so designated), Landlord reserves to itself any and all rights to
receive awards made for damages to the Premises, Building and Land and the
leasehold hereby created, or any one or more of them, accruing by reason of
exercise of eminent domain or by reason of anything lawfully done in pursuance
of public or other authority. Tenant hereby releases and assigns to Landlord
all Tenant's rights to such awards, and covenants to deliver such further
assignments and assurances thereof as Landlord may from time to time request.
6.4 TEMPORARY TAKING
In the event of any taking of the Premises or any part thereof for
temporary use, (i) this Lease shall be and remain unaffected thereby and rent
shall not xxxxx, and (ii) Tenant shall be entitled to receive for itself such
portion or portions of any award made for such use with respect to the period of
the taking which is within the Term.
ARTICLE VII
DEFAULT
7.1 TERMINATION FOR DEFAULT OR INSOLVENCY
This Lease is upon the condition that (1) if Tenant shall fail to perform
or observe any of Tenant's covenants, and if such failure shall continue, in the
case of rent or payment of any sum due Landlord hereunder, for more than five
(5) days after written notice, or in any other case for more than thirty (30)
days after written notice (provided that if correction of any such matter
reasonably requires longer than 30 days and Tenant so notifies Landlord within
20 days together with an estimate of time required for such cure, Tenant shall
be allowed such longer period, but only if such delay does not increase the risk
of damage to person or
34
property), or (2) if three or more notices of a default are given to Tenant in
any twelve month period; or (3) if Tenant shall abandon all or substantially all
of the Premises, or (4) if the leasehold hereby created shall be taken on
execution, or by other process of law, or if any assignment shall be made of
Tenant's property for the benefit of creditors, or (5) if a receiver, guardian,
conservator, trustee in bankruptcy or similar officer shall be appointed by a
court of competent jurisdiction to take charge of all or any part of Tenant's
property and such appointment is not discharged within 90 days thereafter or if
a petition including, without limitation, a petition for reorganization or
arrangement is filed by Tenant under any bankruptcy law or is filed against
Tenant and, in the case of a filing against Tenant only, the same shall not be
dismissed within 90 days from the date upon which it is filed, then, and in any
of said cases, Landlord may, immediately or at any time thereafter, elect to
terminate this Lease by entry or by notice of termination to Tenant at the
Premises and to recover possession of the Premises under and by virtue of the
provisions of the laws of The Commonwealth of Massachusetts or such other
proceedings, including notice, re-entry or possession. Upon termination of this
Lease by such entry or notice, Landlord shall be entitled to recover possession
of the Premises from Tenant and those claiming through or under the Tenant. Such
termination of this Lease and repossession of the Premises shall be without
prejudice to any remedies which Landlord might otherwise have for arrears of
rent or for a prior breach of the provisions of this Lease.
7.2 REIMBURSEMENT OF LANDLORD'S EXPENSES
In the case of termination of this Lease pursuant to Section 7.1, Tenant
shall reimburse Landlord for all reasonable expenses arising out of such
termination, including without limitation, all costs incurred in collecting
amounts due from Tenant under this Lease (including attorneys' fees, costs of
litigation and the like); all expenses incurred by Landlord in attempting to
relet the Premises or parts thereof (including advertisements, brokerage
commissions, Tenant's allowances, costs of preparing space, and the like); and
all Landlord's other reasonable expenditures necessitated by the termination.
The reimbursement from Tenant shall be due and payable immediately from time to
time upon notice from Landlord that an expense has been incurred, without regard
to whether the expense was incurred before or after the termination.
35
7.3 DAMAGES
No termination or repossession by Landlord under Section 7.1 shall relieve
Tenant of its liabilities and obligations hereunder, all of which shall survive
such termination and repossession. In the event of any such termination or
repossession, Tenant shall indemnify Landlord for the loss of rent by a payment
at the end of each month which would have been included in the Term,
representing the difference between the rent which would have been paid in
accordance with this Lease (Annual Fixed Rent under Section 2.5, and additional
rent which would have been payable under Section 2.6 to be ascertained monthly)
and the rent actually derived from the Premises by Landlord for such month, if
any. (The amount of rent deemed derived shall be the actual amount less any
portion thereof attributable to Landlord's reletting expenses described in
Section 7.2 which have not been reimbursed by Tenant thereunder) (such damages
being referred to herein as "current damages"). At any time after any
termination or repossession by Landlord, whether or not Landlord has collected
any current damages pursuant to the foregoing sentence, Landlord may elect by
written notice to Tenant, as liquidated damages in lieu of all current damages
accruing beyond the date of such notice, a lump sum payment representing the
present value of the amount of rent which would have been paid in accordance
with this Lease for the remainder of the Term minus the present value of the
aggregate fair market rent payable for the Premises for the remainder of the
Term, estimated as of the date of the termination, and taking into account
reasonable projections of vacancy and time required to lease. (For the purposes
of calculating the rent which would have been paid hereunder for the lump sum
payment calculation described herein, the last full year's additional rent under
Section 2.6 is to be deemed constant for each year thereafter.) Should the
parties be unable to agree on a fair market rent, the matter shall be submitted,
upon the demand of either party, to the Boston, Massachusetts office of the
American Arbitration Association, with a request for arbitration in accordance
with the rules of the Association by a single arbitrator who shall be an MAI
appraiser with at least ten years experience as an appraiser of suburban
commercial real estate in the Greater Boston Area. The parties agree that a
decision of the arbitrator shall be conclusive and binding upon them.
36
In lieu of any other damages or indemnity and in lieu of full recovery by
Landlord of all sums payable under all the foregoing provisions of this Section
7.3, Landlord may by written notice to Tenant within 2 months after termination
under any of the provisions contained in Section 7.1 and before such full
recovery, elect to recover, and Tenant shall thereupon pay, as liquidated
damages, an amount equal to the lesser of (i) the aggregate of the Annual Fixed
Rent under Section 2.5 and additional rent under Section 2.6 for the balance of
the Term had it not been terminated or (ii) the aggregate thereof for the 12
months ended next prior to such termination, plus in either case the amount of
Annual Fixed Rent and additional rent of any kind accrued and unpaid at the time
of termination and less the amount of any recovery by Landlord under the
foregoing provisions of this Section 7.3 up to the time of payment of such
liquidated damages (but not less any amounts of reimbursement under Section
7.2).
7.4 MITIGATION
Landlord shall use reasonable efforts to relet the Premises following the
termination of this Lease under Section 7.1, subject to the reasonable
requirements of Landlord to develop the Building in a harmonious manner with an
appropriate mix of uses, terms, tenants, floor areas and terms of tenancies,
etc.
7.5 CLAIMS IN BANKRUPTCY
Nothing herein shall limit or prejudice the right of Landlord to prove and
obtain in a proceeding for bankruptcy, insolvency, arrangement or
reorganization, by reason of the termination, an amount equal to the maximum
allowed by a statute 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 is
greater to, equal to, or less than the amount of the loss or damage which
Landlord has suffered.
7.6 LATE CHARGE
If any payment of Annual Fixed Rent, additional rent, or other payment due
from Tenant to Landlord is not paid when due, then Landlord may, at its option,
without notice and in addition to all
37
other remedies hereunder, impose a late charge on Tenant equal to 1.5% of the
amount in question for each month and part thereof during which said delinquency
continues. Such late charge shall constitute additional rent hereunder payable
upon demand.
ARTICLE VIII
MISCELLANEOUS
8.1 MEASUREMENT OF FLOOR AREA
The number of rentable square feet included within the Building has been
calculated in accordance with the methods of measuring rentable square feet, as
that method is described in the American National Institute Publication ANSI
Z65.1-1980, as promulgated by the Building Owners and Managers Association (the
"BOMA Standard"). The number of rentable square feet in the Premises has been
calculated by measuring the number of usable square feet within the Premises
calculated in accordance with the BOMA Standard and dividing the number of
usable square feet by .8744%. If Tenant leases the Expansion Space or Available
Space in the Building in accordance with Article XIII, or any other space in the
Building, the number of rentable square feet in such space shall be calculated
by measuring the number of usable square feet within such space calculated in
accordance with the BOMA Standard and dividing the number of usable square feet
by .8333%
8.2 HOLDOVER
If Tenant continues in occupancy of the Premises after the expiration or
earlier termination of the Term, such occupancy shall be deemed a tenancy at
sufferance, terminable at Landlord's election without notice to Tenant or anyone
claiming under Tenant, whether or not Landlord receives any payments for use and
occupancy of the Premises during such tenancy, and Tenant shall be liable for
any damages suffered or expenses incurred by Landlord as result of such holding
over. Tenant's liability for use and occupancy during any such holdover shall
be the fair rental value of the Premises, but not less than 1.5 times the
monthly installment of Annual Fixed Rent and Additional Rent due hereunder for
the last month of the Term (the "Holdover Rent"), and otherwise subject to all
the covenants and conditions (including obligations to pay additional
38
rent under Section 2.6) of this Lease. Notwithstanding the foregoing, if Tenant
desires to holdover after the expiration of the Term, Tenant may notify Landlord
thereof in writing (a "Holdover Notice") not less than six (6) months prior to
the expiration date of the Term, in which case, unless Landlord objects to such
holding over in writing within thirty (30) days following its receipt of
Tenant's Holdover Notice (in which event any such holdover by Tenant shall be as
a tenant at sufferance), such holding over shall be as a tenant at will or
tenant by the month (requiring 30 days notice of termination by either party to
the other) at the monthly Holdover Rent. If at any time Tenant remains a tenant
at sufferance hereunder for a period of three (3) months or more, at Landlord's
election by notice to Tenant at any time during the continuance of any such
holdover period, Tenant shall lease the Premises for one additional year
commencing upon the date of such notice at the Holdover Rent and otherwise
subject to all the covenants and conditions (including obligations to pay
additional rent under Section 2.6) of this Lease. Notwithstanding the foregoing,
at any time while Tenant occupies the Premises as a tenant at sufferance,
Landlord may, at its option, forthwith re-enter and take possession of the
Premises or any part thereof without process or by any legal process in force in
the Commonwealth of Massachusetts.
8.3 ESTOPPEL CERTIFICATES
Within ten (10) days following the written request of either party, from
time to time, Landlord and Tenant agree to execute and deliver to the other a
certificate which, to the extent true, acknowledges tenancy and possession of
the Premises and recites such other facts concerning any provision of the Lease
or payments made under the Lease which a mortgagee or lender or a purchaser or
prospective purchaser of the Building or any interest therein or any other party
may reasonably request.
8.4 NOTICE
Any notice, approval and other like communication hereunder from Landlord
to Tenant or from Tenant to Landlord shall be given in writing and shall be hand
delivered, mailed prepaid certified mail (in either case whether or not accepted
for delivery), or delivered by Federal Express or another nationally recognized
39
courier service which provides evidence of receipt, addressed as follows:
TO LANDLORD: Advent Realty Limited Partnership
c/o TA Associates Realty
00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
With a copy to:
Graystone Corporation
0000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxx
and
Xxxxxx X. Xxxxxx, Esquire
Sherin and Lodgen LLP
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
TO TENANT: 00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
With a copy to:
Xxxxx X. XxXxxxx, Esquire
Xxxxx Xxxxxxx & Xxxxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Either party may from time to time designate other addresses within the
continental United States by written notice to the other. Notices shall be
deemed delivered on the earlier of (i) the date of receipt or (ii) the date of
delivery if hand delivered, (iii) two (2) days after mailing if sent by Federal
Express of some other overnight courier, and (iv) three (3) days after mailing
if sent by prepaid certified mail.
8.5 LANDLORD'S RIGHT TO CURE
Landlord may, but need not, after written notice and the expiration of any
applicable grace period except in case of an
40
emergency, cure any failure by Tenant to perform its obligations under this
Lease. Whenever Landlord chooses to do so, all costs and expenses incurred by
Landlord in curing any such failure, including, without limitation, reasonable
attorneys' fees together with interest on the amount of costs and expenses so
incurred at an annual rate equal to the so-called base rate of interest
announced at its head office in Boston, Massachusetts, from time to time by the
First National Bank of Boston plus two percentage points shall be paid by Tenant
to Landlord on demand and shall be recoverable as additional rent.
8.6 SUCCESSORS AND ASSIGNS
This Lease and the covenants and conditions herein contained shall inure to
the benefit of and be binding upon Landlord, its successors and assigns, and
shall be binding upon Tenant, its successors and assigns, and shall inure to the
benefit of Tenant and only such assignees of Tenant as are permitted hereunder.
The term "Landlord" means the original Landlord named herein, its successors and
assigns. The term "Tenant" means the original Tenant named herein and its
permitted successors and assigns.
41
8.7 BROKERAGE
Tenant and Landlord each warrants to the other that it has had no dealings
with any broker or agent in connection with this Lease except for any broker
designated in Section 1.1, and covenants to pay, hold harmless and indemnify the
other from and against any and all costs, expense or liability for any
compensation, commissions and charges claimed by any broker or agent other than
any such broker with respect to this Lease or the negotiation thereof arising
from a breach of the foregoing warranty. Landlord shall be responsible for
payment of any brokerage commission to the Broker designated in Section 1.1.
8.8 WAIVER
The failure of Landlord or of Tenant to seek redress for violation of, or
to insist upon strict performance of, any covenant or condition of this Lease,
or, with respect to such failure of Landlord, any of the rules and regulations
referred to in Section 5.4, whether heretofore or hereafter adopted by Landlord,
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, nor shall the failure of Landlord to
enforce any of said rules and regulations against any other tenant of the
Building be deemed a waiver of any such rules or regulations. The receipt by
Landlord of Annual Fixed Rent or additional rent with knowledge of the breach of
any covenant of this Lease shall not be deemed waiver of such breach. No
provision of this Lease shall be deemed to have been waived by Landlord, or by
Tenant, unless such waiver be in writing signed by the party to be charged. No
consent or waiver, express or implied, by Landlord or Tenant 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.
8.9 ACCORD AND SATISFACTION
No acceptance by Landlord of a lesser sum than the Fixed Rent and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction,
42
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
provided in this Lease. The delivery of keys to any employee of Landlord or to
Landlord's agent or any employee thereof shall not operate as a termination of
this Lease or a surrender of the Premises.
43
8.10 REMEDIES CUMULATIVE
The specific remedies to which Landlord may resort under the Terms of this
Lease are cumulative and are not intended to be exclusive of any other remedies
or means of redress to which it may be lawfully entitled in case of any breach
or threatened breach by Tenant of any provisions of this Lease. In addition to
the other remedies provided in this Lease, Landlord shall be entitled to seek
the restraint by injunction of the violation or attempted or threatened
violation of any of the covenants, conditions or provisions of this Lease or to
a decree compelling specific performance of any such covenants, conditions or
provisions.
8.11 PARTIAL INVALIDITY
If any term of this Lease, or the application thereof to any person or
circumstance, shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
8.12 WAIVERS OF SUBROGATION
Any insurance carried by either party with respect to the Premises or
property therein or occurrences thereon shall, if it can be so written without
additional premium or with an additional premium which the other party agrees to
pay, include a clause or endorsement denying to the insurer rights of
subrogation against the other party to the extent rights have been waived by the
insured hereunder prior to occurrence of injury or loss. Each party,
notwithstanding any provisions of this Lease to the contrary, hereby waives any
rights of recovery against the other for injury or loss due to hazards covered
by such insurance to the extent of the indemnification received
8.13 ENTIRE AGREEMENT
This Lease contains all of the agreements between Landlord and Tenant with
respect to the Premises and supersedes all prior dealings between them with
respect thereto.
44
8.14 NO AGREEMENT UNTIL SIGNED
The submission of this Lease or a summary of some or all of its provisions
for examination does not constitute a reservation of or option for the Premises
or an offer to lease and no legal obligations shall arise with respect to the
Premises or other matters herein until this Lease is executed and delivered by
Landlord and Tenant.
8.15 TENANT'S AUTHORIZED REPRESENTATIVE
Tenant designates the person named from time to time as Tenant's Authorized
Representative to take all acts of Tenant contemplated or required hereunder.
Landlord may rely on the acts of such Authorized Representative without further
inquiry or evidence of authority. Tenant's Authorized Representative shall be
the person so designated in Section 1.1 and such successors as may be named from
time to time by the then current Tenant's Authorized Representative or by
Tenant's president.
8.16 LANDLORD'S AUTHORIZED REPRESENTATIVE
Landlord designates the person named from time to time as Landlord's
Authorized Representative to take all acts of Landlord contemplated or required
hereunder. Tenant may rely on the acts of such Authorized Representative
without further inquiry or evidence of authority. Landlord's Authorized
Representative shall be the person so designated in Section 1.1 and such
successors as may be named from time to time by the then current Landlord's
Authorized Representative.
8.17 NOTICE OF LEASE
Landlord and Tenant agree not to record this Lease. Both parties will, at
the request of either, execute, acknowledge and deliver a Notice of Lease and a
Notice of Termination of Lease Term, each in recordable form. Such notices
shall contain only the information required by law for recording.
8.18 TENANT AS BUSINESS ENTITY
45
Tenant warrants and represents that (a) Tenant is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which such
entity was organized; (b) Tenant has the authority to own its property and to
carry on its business as contemplated under this Lease; (c) Tenant is in
compliance with all laws and orders of public authorities applicable to Tenant;
(d) Tenant has duly executed and delivered this Lease; (e) the execution,
delivery and performance by Tenant of this Lease (i) are within the powers of
Tenant, (ii) have been duly authorized by all requisite action, (iii) will not
violate any provision of law or any order of any court or agency of government,
or any agreement or other instrument to which Tenant is a party or by which it
or any of its property is bound, and (iv) will not result in the imposition of
any lien or charge on any of Tenant's property, except by the provisions of this
Lease; and (f) the Lease is a valid and binding obligation of Tenant in
accordance with its terms.
46
8.19 MISCELLANEOUS PROVISIONS
This Lease may be executed in counterparts and shall constitute the
agreement of Landlord and Tenant whether or not their signatures appear in a
single copy hereof. This Lease shall be construed as a sealed instrument in
accordance with the laws of the Commonwealth of Massachusetts. The titles are
for convenience only and shall not be considered a part of the Lease. The
enumeration of specific examples of or inclusions in a general provision shall
not be construed as a limitation of the general provision. If Tenant is granted
any extension or other option, to be effective the exercise (and notice thereof)
shall be unconditional; and if Tenant purports to condition the exercise of any
option or to vary its terms in any manner, then the option granted shall be void
and the purported exercise shall be ineffective. Nothing herein shall be
construed as creating the relationship between Landlord and Tenant of principal
and agent, or of partners or joint venturers or any relationship other than
landlord and tenant. This lease and all consents, notices, approvals and all
other documents relating hereto may be reproduced by any party by photographic,
microfilm, microfiche or other reproduction process and the originals thereof
may be destroyed; and each party agrees that any reproductions shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not
reproduction was made in the regular course of business) and that any further
reproduction of such reproduction shall likewise be admissible in evidence.
8.19 TENANT'S RIGHT TO CURE
If Landlord shall default in the performance of any obligation or
requirement on Landlord's part to be performed under any of the terms or
provisions of this Lease and Landlord fails to commence to cure such default
within thirty (30) days after Landlord's receipt of written notice of such
default from Tenant or to diligently pursue such cure, and such default
thereafter causes or results in an interference in the conduct of Tenant's
business, then Tenant may, upon reasonable advance notice to Landlord,
diligently proceed to cure such default on Landlord's behalf and Landlord agrees
to reimburse Tenant for the Tenant's reasonable actual out-of pocket costs
incurred as result thereof together with interest on the amount of such costs so
incurred at an annual rate
47
equal to the so-called base rate of interest announced at its head office in
Boston, Massachusetts, from time to time by the First National Bank of Boston
plus two percentage points.
8.20 DELAYS
In any case where either party hereto is required to do any act, the date
(or the period) by (or in which) the act is to be performed shall be postponed
(or enlarged) by a period equal to any delay caused by or resulting from Act of
God; war, civil commotion; fire or other casualty; labor difficulties, shortages
of labor, materials, fuel, electricity (or other relevant form of energy) or
equipment; or resulting from government regulations or other causes (not
including financial inability to perform) beyond such party's reasonable
control, whether such date (or time period) be designated specifically (e.g.
"July 4, 1984"; "within 120 days after such filing") or described as (or with
reference to) a "reasonable time".
ARTICLE IX
LANDLORD'S LIABILITY AND ASSIGNMENT FOR FINANCING
9.1 LANDLORD'S LIABILITY
Tenant agrees from time to time to look only to Landlord's interest in the
Building for satisfaction of any claim against Landlord hereunder and not to any
other property or assets of Landlord. If Landlord from time to time transfers
its interest in the Building (or part thereof which includes the Premises), then
upon the written acknowledgement by any such transferee of its receipt of any
security deposit under Article X and its assumption of Landlord's obligations
under this Lease, Tenant shall look solely to the interests in the Building of
each of Landlord's transferees for the performance of all of the obligations of
Landlord hereunder. The obligations of Landlord shall not be binding on any
partners (or trustees or beneficiaries) of Landlord or of any successor,
individually, but only upon Landlord's or such successor's assets described
above.
9.2 ASSIGNMENT OF RENTS
48
If, at any time and from time to time, Landlord assigns this Lease or the
rents payable hereunder to the holder of any mortgage on the Premises or the
Building, or to any other party for the purpose of securing financing (the
holder of any such mortgage and any other such financing party are referred to
herein as the "Financing Party"), whether such assignment is conditional in
nature or otherwise, the following provisions shall apply:
(i) Such assignment to the Financing Party shall not be deemed an
assumption by the Financing Party of any obligations of Landlord hereunder
unless such Financing Party shall, by written notice to Tenant, specifically
otherwise elect;
(ii) Except as provided in (i) above, the Financing Party shall be treated
as having assumed Landlord's obligations hereunder (subject to Section 9.1)
only upon foreclosure of its mortgage (or voluntary conveyance by deed in lieu
thereof) or the taking of possession of the premises and, with respect to
obligations regarding return of any security deposit, only upon receipt of the
funds constituting such security deposit;
(iii) Subject to Section 9.1, the Financing Party shall be responsible for
only such breaches under the Lease by Landlord which occur during the period of
ownership by the Financing Party after such foreclosure (or voluntary conveyance
by deed in lieu thereof) or taking of possession, as aforesaid;
(iv) In the event Tenant alleges that Landlord is in default under any of
Landlord's obligations under this Lease, Tenant agrees to give the holder of any
mortgage, by registered mail, a copy of any notice of default which is served
upon the Landlord, provided that prior to such notice, Tenant has been notified,
in writing, (whether by way of notice of an assignment of lease, request to
execute an estoppel letter, or otherwise) of the address of any such holder.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided by law or such additional time as may be provided in
such notice to Landlord, such holder shall have thirty (30) days after the last
date on which Landlord could have cured such default within which such holder
will be permitted to cure such default. If such default cannot be cured within
such thirty day period, then such holder shall have such additional time as may
be necessary to cure such default, if within such thirty day period such holder
has commenced and is
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diligently pursuing the remedies necessary to effect such cure (including, but
not limited to, commencement of foreclosure proceedings, if necessary, to effect
such cure), in which event Tenant shall have no right with respect to such
default while such remedies are being diligently pursued by such holder.
In furtherance of the foregoing, Tenant hereby agrees to enter into such
agreements or instruments as may, from time to time, be requested in
confirmation of the foregoing.
ARTICLE X
SECURITY DEPOSIT
Tenant hereby agrees that the $250,000 letter of credit which has been
delivered to Landlord as the security deposit under the Xxxxxxx Road Lease (the
"Letter of Credit") shall also serve as the security deposit for this Lease to
the same extent as if such Letter of Credit was obtained and delivered as
security solely for this Lease, and the provisions of Article X of the Xxxxxxx
Road Lease are hereby incorporated herein by reference. In the event of a
simultaneous default by Tenant of this Lease and the Xxxxxxx Road Lease,
Landlord may elect to call and apply the Letter of Credit to the obligations
under either Lease in its sole and absolute discretion.
Tenant hereby further agrees that Tenant shall not, and shall not be
permitted to, make any reduction in the amount of the Letter of Credit, as set
forth in said Article X of the Xxxxxxx Road Lease, unless and until Landlord has
received the evidence of the completion of Tenant's Work necessary to trigger
the payment of the Tenant Improvement Allowance, including third-party invoices
and lien waivers, all in accordance with Section 2.5.1.
Upon Landlord's written request, Tenant agrees to split the Letter of
Credit into two separate letters of credit, each of which shall separately
secure this Lease and the Xxxxxxx Road Lease. The letters of credit shall
remain subject to the terms of Article X of the Xxxxxxx Road Lease (as affected
hereby), and the terms and conditions of such letters of credit shall be
identical to the Letter of Credit, except that Landlord may determine the
respective
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amounts of each letter (which in the aggregate shall not exceed that
then required amount of the Letter of Credit).
ARTICLE XI
SUBORDINATION
Before the execution of this Lease, Landlord shall provide Tenant with a
written agreement (a "Non-Disturbance Agreement") with the holder of any
mortgage or similar instrument encumbering the Land or the Building and any
lessor of any ground lease affecting the Land or the Building to the effect
that, in the event of a foreclosure or other enforcement of rights under such
mortgage, ground lease or other instrument, such holder or lessor shall
recognize Tenant's rights under this Lease and not disturb Tenant's occupancy of
the Premises under this Lease. Provided Tenant receives a Non-Disturbance
Agreement from each such holder or lessor, this Lease shall be subject and
subordinate to any mortgages or ground leases that may now or hereafter be
placed upon the Building and/or the Land and to any and all advances to be made
under such mortgages or ground leases and to the interest thereon, and all
renewals, extensions and consolidations thereof; provided that any mortgagee or
ground lessor may elect to have this Lease a prior lien to its mortgage or
ground lease and in the event of such election and upon notification by such
mortgagee or ground lessor to Tenant to that effect, this Lease shall be deemed
prior in lien to said mortgage or ground lease. This Section shall be self-
operative, but in confirmation thereof, Tenant shall execute and deliver
whatever instruments may be required to acknowledge such subordination or
priority in recordable form. Landlord represents and warrants that there are no
mortgages or, to the best of its knowledge, other monetary liens presently
encumbering the Land or the Building.
In addition, upon Tenant's written request, Landlord will use its best
efforts (without the payment of money) to obtain the ground lessor's consent to
the installation of a ground conduit for cabling between 00 Xxxxxxx xxxx and 00
Xxxxxxxx Xxxxxx. Such installation shall be at Tenant's cost and Tenant shall
restore any area disturbed by such installation.
ARTICLE XII
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OPTION TO EXTEND
Tenant shall have the option to extend the Term of this Lease for two
additional three-year periods upon the terms and conditions set forth in this
Lease, as amended from time to time, including without limitation any amendments
in connection with additional space leased under Article XIII, except that the
Annual Basic Rent during each such additional three-year period shall be equal
to ninety-five percent (95%) of the Fair Market Rent. For the purposes of this
Lease, "Fair Market Rent" shall mean the fair market rent being paid in the
vicinity of the Premises in Lexington, Massachusetts, for leases having a term
equal to the length of the applicable extension period commencing as of the
beginning of each such extension period, for space comparable to that of Tenant
under this Lease, with facilities and services comparable to those provided to
Tenant, the suitability of the Premises for Tenant's use, and the charges
payable by Tenant hereunder, and other relevant factors. Tenant may exercise
such option with respect to each such additional period by giving written notice
to Landlord no earlier than one (1) year prior to the first day of the purported
extension period and no later than nine (9) months prior to the first day of the
purported extension period (time being of the essence). Within ten (10)
business days following Tenant's written request given at any time after the
date which is thirteen (13) months prior to the first day of extension period,
Landlord shall advise Tenant of the Fair Market Rent for the Premises for the
applicable extension period as determined by Landlord. Should the parties be
unable to agree on a Fair Market Rent within thirty (30) days following
Landlord's receipt of Tenant's extension notice, the matter shall be submitted,
upon the demand of either party, to the Boston, Massachusetts office of the
American Arbitration Association, with a request for arbitration in accordance
with the rules of the Association by a single arbitrator who shall be an MAI
appraiser with at least ten years experience as an appraiser of suburban
commercial real estate in the Greater Boston Area. The parties agree that a
decision of the arbitrator shall be conclusive and binding upon them.
Tenant's rights under this Article XII shall be personal to Atria Software,
Inc., its successors and assigns under Affiliate Transfers and successors and
assigns succeeding to all or substantially all of the business and assets of
Atria Software,
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Inc. by way of merger, consolidation, or acquisition, but not to any other
assignee of the Lease or any other successor to Atria Software, Inc.
Tenant shall have no right to exercise any such option, and any exercise of
any such option shall be rendered voidable at Landlord's election, if either at
the time Tenant exercises any such option or at the time any such additional
period shall commence (i) Tenant shall be in default under this Lease, after
written notice and the expiration of any applicable grace period, or (ii) Atria
Software, Inc. has then subleased more than seventy-five percent (75%) of the
rentable floor area of the Premises (other than pursuant to an Affiliate
Transfer).
ARTICLE XIII
OPTION TO EXPAND/RIGHT OF FIRST OFFER
13.1 OPTION TO EXPAND.
Tenant shall have the right, by written notice to Landlord on or before
March 1, 1999, time being of the essence, to lease approximately 8,000 rentable
square feet of space on the second floor of the Building, shown as the Expansion
Space on Exhibit B-1 attached to this Lease, for occupancy on or about September
1, 1999 (the "Delivery Date"). If Tenant timely exercises its right to lease the
Expansion Space, such Expansion Space shall be incorporated into the Premises on
the terms and conditions set forth in this Lease, except that (i) the Annual
Fixed Rent shall be equal to the Fair Market Rent determined in accordance with
Article XII (plus Tenant's Electricity Rate) and (ii) the Expansion Space shall
be delivered to Tenant on or before the Delivery Date in an "As-Is" condition,
free of all occupants and in broom clean condition and free of all personal
property not owned by Tenant. Landlord shall not be liable to Tenant for failing
to deliver the Expansion Space on or before the Delivery Date as a result of the
existing tenant's failure to vacate or vacate timely, provided Landlord shall
use its best efforts to vacate such tenant upon the exercise of Tenant's
expansion right as set forth herein, which best efforts shall include
prosecuting legal actions to evict, if necessary. Upon the request of either
party, Landlord and Tenant shall execute and deliver an amendment of lease for
the purpose of
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incorporating the Expansion Space into the Premises on the terms and conditions
set forth in this Lease.
13.2. RIGHT OF FIRST OFFER
Tenant shall have the right to lease any space in the Building which
becomes available for occupancy ("Available Space") during the Term of this
lease, subject to and in accordance with the terms hereof. If at any time
during the Term of this lease there shall be any Available Space, Landlord shall
notify Tenant thereof in writing ("Landlord's Available Space Notice"), which
notice shall include the date upon which such Available Space shall be available
for occupancy by Tenant. Tenant shall have the right to lease such Available
Space only by giving written notice to Landlord within ten (10) business days
after Tenant receives Landlord's Available Space Notice, time being of the
essence. If Tenant fails to timely exercise such right with respect to any
Available Space offered to Tenant by Landlord, Landlord shall then be free to
market such Available Space for leasing. Landlord shall then notify Tenant in
writing ("Landlord's Letter of Intent Notice") when Landlord receives a letter
of intent or written offer to lease all or any part of such Available Space
which Landlord desires to accept (a "Letter of Intent"), which notice shall be
subject to the Confidentiality Requirements set forth below, including the
identity of the prospective tenant. Tenant shall then have the right to lease
the Available Space offered to Tenant by Landlord's Letter of Intent Notice only
by giving written notice to Landlord within ten (10) business days after Tenant
receives Landlord's Letter of Intent Notice, time being of the essence. If
Tenant fails to timely exercise such right with respect to such Available Space
offered to Tenant by Landlord pursuant to Landlord's Letter of Intent Notice,
Landlord shall then be free to lease such Available Space to the Tenant named in
the Letter of Intent and in accordance with the terms and conditions of the
Letter of Intent (which lease may include terms, conditions and provisions which
are not inconsistent with the Letter of Intent and not more favorable to the
prospective tenant than those under which Tenant may lease such Available
Space). If Tenant exercises its option to lease any Available Space pursuant to
the terms hereof, such Available Space shall be incorporated into the Premises
on the terms and conditions set forth in this Lease, except that (i) the Annual
Fixed Rent shall be equal to the Fair Market Rent determined in accordance with
Article XII (plus Tenant's Electricity Rate), and (ii) the
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Available Space shall be delivered to Tenant in an "As-Is" condition, free of
all occupants and in broom clean condition and free of all personal property not
owned by Tenant; provided however, the Annual Fixed Rent and other terms
applicable to any Available Space leased pursuant to Landlord's Letter of Intent
Notice shall be governed by the terms of the applicable Letter of Intent and, to
the extent not inconsistent with such Letter of Intent, the terms hereof. Upon
the request of either party, Landlord and Tenant shall execute and deliver an
amendment of lease for the purpose of incorporating any such Available Premises
into the Premises on the terms and conditions set forth in this Lease. If
Landlord fails to consummate a lease according to the terms of the Letter of
Intent, such space shall once again become Available Space subject to the terms
hereof. For the purposes hereof, space shall be deemed "available for occupancy"
when any lease (including extension periods) has expired or is due to expire
within six (6) months and any prior options or rights to lease have expired or
been waived and Landlord is free to lease such space to third parties without
restriction.
For the purposes hereof, the "Confidentiality Requirements" shall mean
either (i) Landlord is not prohibited by the terms of the Offer or the letter of
intent, as the case may be, from disclosing the identity of the prospective
tenant, or (ii) if Landlord is so prohibited from disclosing the identity of the
prospective tenant, Tenant shall agree to defend and indemnify Landlord from and
against any loss, cost, damage, expense, claim, or liability arising out of such
disclosure. In either case, if Landlord discloses the identity of the
prospective tenant to Tenant, Tenant shall keep such prospective tenant's
identity confidential.
13.3 NO CONFLICTING AGREEMENTS.
Landlord shall not grant options, rights of first offer or first refusal or
other rights which conflict with, or have a priority more senior than, Tenant's
rights and options under this Article XIII. The foregoing sentence shall not be
deemed to prohibit or limit Landlord from leasing space for a term and with such
rights to extend the term as Landlord may desire provided Landlord has complied
with the terms of this Article XIII.
13.4 LIMITATIONS.
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Tenant shall have no right to exercise any such option with respect to
Expansion Space or right with respect to Available Space, and any exercise of
any such option or right shall be rendered voidable at Landlord's election, if
either at the time Tenant exercises any such option or at the purported delivery
date of the applicable space, as the case may be (i) Tenant shall be in default
under this Lease, after written notice and the expiration of any applicable
grace period, or (ii) Atria Software, Inc. has then subleased more than seventy-
five percent (75%) of the rentable floor area of the Premises (other than
pursuant to an Affiliate Transfer). Tenant's rights under this Article XIII
shall be personal to Atria Software, Inc., its successors and assigns under
Affiliate Transfers and successors and assigns to all or substantially all of
the business and assets of Atria Software, Inc., by way of merger,
consolidation, or acquisition.
13.5 WARRANTIES CONCERNING EXPANSION SPACE.
Landlord represents and completely sets forth a list of all tenants of
the Building. Landlord further represents and warrants to Tenant that said
Exhibit F accurately and completely sets forth the expiration dates of the
leases or occupancy agreements under which such tenants presently occupy
portions of the Building and all rights to extend such expiration dates and all
rights of first offer, rights of first refusal, options and the like held by
such tenants.
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ARTICLE XIV
LANDLORD'S REPRESENTATION AND WARRANTIES
Landlord represents and warrants to Tenant that:
a) Landlord is the lessee of the Land and the Building under the Kiln Xxxxx XX
Amendment and Restatement of Ground Lease dated October 27, 1988, between
Xxxxxx X. Xxxxxx and Xxxxxxxxx Xxxxxx, as Lessor (the "Ground Lessor"), and
Landlord, as lessee (the "Ground Lease").
b) The Ground Lease is in full force and have not been amended;
c) Landlord has provided to Tenant a complete and accurate copy of the Ground
Lease, which represents the entire agreement between Ground Lessor and
Landlord with respect to the property at 00 Xxxxxxxx Xxxxxx.
d) To the best of Landlord's knowledge, neither the Ground Lessor nor Landlord
is in default under the Ground Lease, nor has any event occurred which,
after any applicable notice or the expiration of any applicable grace
period, will become a default under the Ground Lease; and
e) All rent, additional rent and other charges due under the Ground Lease
has been paid through August 30, 1995.
ARTICLE XV
HAZARDOUS SUBSTANCES
15.1 HAZARDOUS SUBSTANCES.
Tenant shall not cause or permit the release of any hazardous
substance/material or oil (other than the Excepted Materials as hereinafter
defined) into the septic, sewage or other waste disposal system serving the
Demised Premises, the Building or the Land, nor cause or permit the use,
generation, release, disposal or storage of any hazardous substance/material or
oil (except only the use and storage of immaterial quantities of cleaning fluids
and office supplies used in the ordinary course of the Permitted Uses
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which may be deemed hazardous by law, provided the same are used and stored in
compliance with any and all federal, state, and local laws, ordinances and
regulations governing the same (the "Excepted Materials")), nor commit or suffer
to be committed in or on the Demised Premises, the Building or the Land any act
which would require Tenant to obtain from a governmental authority any license,
permit, approval or authorization pursuant to applicable law. In addition,
Tenant shall not cause or permit the transportation of any hazardous substance/
material or oil (other than Excepted Materials) to or from the Demised Premises,
the Building or the Land without the prior written consent of Landlord, and then
only in compliance with any and all federal, state and local laws, ordinances
and regulations governing such transportation. The phrase "hazardous substance/
material or oil" as used in this Section shall include all "hazardous
substances" as defined and used in 42 USC (S)9601, et seq., as the same may be
-- ---
amended from time to time, or as defined in any other federal, state or local
laws, ordinances and regulations applicable to the Demised Premises, the
Building or the Land. Tenant shall forthwith give Landlord notice of the
accidental or other introduction of any such hazardous substance/material or oil
(other than Excepted Materials), or the release or threat of release from the
Demised Premises, the Building or the Land of any such hazardous
substance/material or oil (other than Excepted Materials).
15.2 TENANT'S INDEMNITY.
Tenant shall indemnify, defend, and hold Landlord, any parent, subsidiary
and affiliate of Landlord, any Ground Lessor, and their respective officers,
directors, beneficiaries, shareholders, partners, agents, and employees harmless
from all fines, suits, proceedings, claims, and actions of every kind, and all
costs associated therewith (including attorneys' and consultants' fees and
remediation costs, if applicable) arising out of or in any way connected with
(i) any deposit, spill, discharge, or other release (or the threat of release)
of any hazardous substance/material or oil (other than Excepted Materials) which
arises at any time from Tenant's use or occupancy of the Demised Premises, the
Building or the Land (including the act or negligence of Tenant or any of
Tenant's agents, employees, licensees, sublessees, concessionaires, contractors
or invitees), or (ii) from Tenant's failure to provide all information, make all
submissions, and take all actions required of Tenant by all governmental
authorities under all laws,
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ordinances and regulations applicable to any hazardous substance/material or
oil.
15.3 LANDLORD'S INDEMNITY.
Landlord shall indemnify, defend, and hold Tenant, any parent, subsidiary
and affiliate of Tenant, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees harmless from all
fines, suits, proceedings, claims, and actions of every kind, and all costs
associated therewith (including attorneys' and consultants' fees and remediation
costs, if applicable) arising out of (i) any hazardous substance/material or oil
located in, on or under the Building or the Land as of the date hereof, and (ii)
any deposit, spill, discharge, or other release (or the threat of release) of
any hazardous substance/material or oil arising out of the act or negligence of
Landlord, its agents, employees, or contractors, or from Landlord's failure to
provide all information, make all submissions, and take all actions required by
all governmental authorities under all applicable laws, ordinances and
regulations related thereto.
15.4 SURVIVAL.
Tenant's and Landlord's obligations and liabilities under this Article
XV shall survive the expiration or earlier termination of this lease.
Executed to take effect as a sealed instrument.
LANDLORD: ADVENT REALTY LIMITED PARTNERSHIP
by: Advent Realty GP Limited Partnership (its general partner)
by: TA Realty Group Limited Partnership (its general partner)
By: ________________________________________
Xxxxxxx X. Xxxxx, General Partner or
Xxxxxx X. Xxxxx, General Partner
TENANT: ATRIA SOFTWARE, INC.
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By: ________________________________________
Xxxxx Bay, Chief Financial Officer
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