Exhibit 10.11
LEASE
By and Between
XXXXX FORD/WHITEHALL PROPERTIES, L.L.C.
("Landlord")
and
ARBOR NATIONAL COMMERCIAL MORTGAGE, LLC
("Tenant")
TABLE OF CONTENTS
1. TERMS ................................................................ 1
2. PAYMENT OF RENT & ADDITIONAL RENT .................................... 4
3. SECURITY DEPOSIT; ADVANCE DEPOSIT .................................... 5
4. USES; TENANT COVENANTS ............................................... 7
5. ENVIRONMENTAL PROVISIONS; RECYCLING .................................. 9
6. LATE CHARGES; INTEREST ............................................... 13
7. REPAIRS AND MAINTENANCE .............................................. 14
8. UTILITIES AND SERVICES ............................................... 14
9. COSTS OF ELECTRICITY AND EXPENSE INCREASES ........................... 16
10. INCREASES IN REAL ESTATE TAXES ....................................... 20
11. ADDITIONAL PROVISIONS; OPERATING COSTS AND REAL ESTATE TAXES ......... 22
12. TENANT'S INSURANCE ................................................... 22
13. LANDLORD'S INSURANCE ................................................. 23
14. DAMAGE OR DESTRUCTION ................................................ 24
15. MACHINES AND EQUIPMENT; ALTERATIONS AND ADDITIONS:
REMOVAL OF FIXTURES .................................................. 26
16. ACCEPTANCE OF PREMISES ............................................... 27
17. TENANT IMPROVEMENTS .................................................. 28
18. ACCESS ............................................................... 28
19. MUTUAL WAIVER OF CLAIMS AND SUBROGATION .............................. 28
20. INDEMNIFICATION ...................................................... 29
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21. ASSIGNMENT AND SUBLETTING ............................................ 30
22. ADVERTISING .......................................................... 32
23. LIENS ................................................................ 33
24. DEFAULT .............................................................. 33
25. SUBORDINATION ........................................................ 37
26. SURRENDER OF POSSESSION .............................................. 37
27. NON-WAIVER ........................................................... 38
28. HOLDOVER ............................................................. 38
29. CONDEMNATION ......................................................... 38
30. NOTICES .............................................................. 39
31. MORTGAGEE PROTECTION ................................................. 40
32. COSTS AND ATTORNEYS' FEES ............................................ 40
33. BROKERS .............................................................. 40
34. LANDLORD'S LIABILITY AND DEFAULT ..................................... 40
35. ESTOPPEL CERTIFICATES ................................................ 41
36. FINANCIAL STATEMENTS ................................................. 42
37. TRANSFER OF LANDLORD'S INTEREST ...................................... 42
38. RIGHT TO PERFORM ..................................................... 43
39. SUBSTITUTED PREMISES ................................................. 43
40. SALES AND AUCTIONS ................................................... 43
41. NO ACCESS TO ROOF .................................................... 43
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42. SECURITY ............................................................. 44
43. AUTHORITY OF TENANT .................................................. 44
44. NO ACCORD OR SATISFACTION ............................................ 44
45. MODIFICATION FOR LENDER .............................................. 44
46. PARKING .............................................................. 44
47. GENERAL PROVISIONS ................................................... 45
48. LANDLORD'S LIEN ...................................................... 47
49. WAIVER OF JURY TRIAL ................................................. 48
50. RENEWAL OPTION ....................................................... 48
51. ADDITIONAL SCHEDULES ................................................. 49
EXHIBIT A-1 Location and Dimensions of Premises
EXHIBIT A-2 Description of Land
EXHIBIT B [Not applicable]
EXHIBIT C [Not applicable]
EXHIBIT D Rules and Regulations
EXHIBIT E Janitorial Specifications
EXHIBIT F Form Estoppel Certificate
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LEASE
THIS LEASE is made this 30th day of June, 1998 by and between
WELLSFORD/WHITEHALL PROPERTIES, L.L.C., a Delaware limited liability company -
("Landlord"), c/o Wellsford Real Properties, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000, and ARBOR NATIONAL COMMERCIAL MORTGAGE, LLC, a New York limited
liability company ("Tenant") with a mailing address of 000 Xxxxx Xxxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxxx, XX 00000.
RECITALS:
Landlord, for and in consideration of the rents and all other charges and
payments hereunder and of the covenants, agreements, terms, provisions and
conditions to be kept and performed hereunder by Tenant, grants and conveys to
Tenant, and Tenant hereby hires and takes from Landlord, a leasehold interest in
the premises described below ("Premises"), subject to all matters hereinafter
set forth and upon and subject to the covenants, agreements, terms, provisions
and conditions of this Lease for the term hereinafter stated.
NOW THEREFORE Landlord and Tenant hereby agree to the following:
1. TERMS.
1.1 Premises. The Premises demised by this Lease are approximately 6,675
rentable square feet on the 10th floor of the building located at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxxx (the "Building"), together with a
nonexclusive right to use parking and other common areas. The land upon which
the Building is situated, which is described in Exhibit A-2 attached hereto and
incorporated herein by reference, shall be referred to hereinafter as the
"Land". The location and dimensions of the Premises are shown on Exhibit A-1,
attached hereto and incorporated herein by reference. No easement for light or
air is incorporated in this Premises. The rentable area of the Building is
approximately 60,682 square feet, and Landlord and Tenant hereby stipulate that
the rentable area of the Building and Premises are as set forth herein.
1.2 Tenant's Share. "Tenant's Share" shall mean a fraction, the numerator
of which is the total rentable square footage of the Premises, and the
denominator of which is the total rentable square footage of the Building.
Tenant's Share as of the date of execution of this Lease is eleven percent
(11%). Tenant's Share shall be adjusted for changes in the total rentable square
footage of the Premises and/or Building, including without limitation changes
which may result from any condemnation of a portion of the Building.
1.3 Lease Term. The term of this Lease (the "Term" or "Lease Term") shall
commence on the "Commencement Date", as defined in Section 1.4, below, and shall
expire sixty (60) months thereafter (the "Lease Expiration Date");
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1.4 Commencement Date. The "Commencement Date" shall be July 1, 1998.
Tenant is, prior to the Commencement Date, occupying the Premises
pursuant to a Lease dated June 9, 1993 (the "Prior Lease"). Tenant's use and
occupancy of the Premises will be subject to the terms and conditions of the
Prior Lease until the Commencement Date; and the Prior Lease shall be
superseded in its entirety and of no further force or effect as of the
Commencement Date. Tenant acknowledged that, as the Commencement Date,
Landlord will have no obligations no liabilities arising out of or relating
to the Prior Lease.
1.5 Rent. The base rent payable by Tenant hereunder ("Base Rent") is set
forth in this Section 1.5, below. In addition to the Base Rent, Tenant shall pay
(as additional rent) Tenant's Share of Expense Increases as described in Section
9, Tenant's Share of Tax Increases as described in Section 10, and all of which
shall be deemed additional rent due under this Lease. The combination of Base
Rent and additional rent as described in this Section 1.5 is sometimes
collectively referred to in this Lease as "Rent". Base Rent shall be payable
monthly, in advance, on first day of each calendar month of the Term, without
prior notice, demand, deduction or offset, except as expressly set forth to the
contrary herein.
The monthly payments of Rent for the Premises (which may be referred to
herein as "Monthly Rent") shall be as follows:
Annual Base Rent
Months Per Square Foot Annual Base Rent Monthly Rent
------ --------------- ---------------- ------------
1 - 2 -- -- $4,728.00
3 - 12 $23.50 $156,862.50 $13,071.88
13 - 24 $24.50 $163,537.50 $13,628.13
25 - 36 $25.50 $170,212.50 $14,184.38
37 - 48 $26.50 $176,887.50 $14,740.63
49 - 60 $27.50 $183,562.50 $15,296.88
1.6 Additional Rent. Any sum owed or reimbursable by Tenant to Landlord
under this Lease (excluding monthly Base Rent) shall be considered "additional
rent" hereunder, and, except for items of additional rent for which demand is
required pursuant to the express terms of this Lease, shall be payable without
demand, set-off or deduction, except as expressly set forth to the contrary
herein. The items of additional rent described in Section 1.5, above, shall be
payable monthly, in advance, on first day of each calendar month of the Term,
together with Tenant's monthly Base Rent payment.
1.7 Notice and Payment Addresses. Any notices under this Lease shall be
governed by the terms of Section 30, below. The notice addresses of the parties
are as follows:
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If to Landlord: Wellsford/Whitehall Properties, L.L.C.
c/o Wellsford Real Properties, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to: Xxxxxxxx Xxxx Company
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to Tenant: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Xx. V.P. Legal
Notwithstanding the foregoing, the notice address of Tenant shall be at the
Premises on and after the Commencement Date. Either party may, upon (10) days'
prior written notice to the other, designate a new address to which all notices
hereunder shall be directed.
1.8 Rent Payment Address. Tenant shall send payments of Rent and
additional rent hereunder to Landlord's at the following address:
Xxxxxxxx Xxxx Company
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
1.9 Lease Year. Each twelve (12) month period within the Lease Term shall
be referred to herein as a "Lease Year." The first Lease Year shall commence on
the Commencement Date and terminate on the last day of the twelfth full calendar
month after such Commencement Date. Each subsequent Lease Year shall commence on
the date immediately following the last day of the preceding Lease Year and
shall continue for a period of twelve (12) full calendar months, except that the
last Lease Year of the Lease Term shall terminate on the date this Lease expires
or is otherwise terminated.
1.10 "As Is". Tenant acknowledges and agrees that it is presently
occupying the Premises under the Prior Lease and will be occupying the Premises
from Landlord as of the Commencement Date strictly "As Is". Except for
Landlord's agreement to make the Landlord Contribution (described in Section
15.2.2, below) and to make the improvements and to perform the repairs set forth
in this Section 1.10, below, Landlord shall have no obligation to make any
alterations or repairs to the Premises in connection with Tenant's occupancy of
the Premises pursuant to this Lease except as expressly provided for herein.
Notwithstanding the foregoing, Landlord has advised Tenant that Landlord has
committed no less than $250,000 to make capital improvements and renovations to
the Building within twelve (12) months after the date hereof. Among the Building
components to which Landlord is considering making improvements are the Building
lobby, elevators and HVAC system. Also, Landlord shall (i) make repairs to the
roof over the Premises and the windows of the Premises
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necessary to prevent leakage and (ii) balance and adjust the HVAC system serving
the Premises in accordance with generally approved and accepted industry
standards.
1.11 Deed of Lease. To the extent required under applicable law to make
this Lease legally effective, this Lease shall constitute a deed of lease.
2. PAYMENT OF RENT & ADDITIONAL RENT.
Tenant shall pay Landlord the Rent due under this Lease in lawful money of
the United States. Rent (including any monthly estimated payments for Tenant's
Share of Expense Increases and Tax Increases payable in accordance with this
Lease) shall be paid in advance on or before the first day of each month, at the
address noted in Section 1.9, or to such other party or at such other place as
Landlord may hereafter from time to time designate in writing. All other
payments due under this Lease shall be paid no later than five (5) business days
after the date Landlord provides Tenant with a written request for payment which
sets forth the amount due. In the event of any dispute concerning the
computation of the amount of any additional rent due, Tenant shall pay the then
present amount specified by Landlord pending the resolution of the dispute,
provided such payment shall be without prejudice to Landlord's right to insist
upon payment in full or Tenant's right to continue to challenge the disputed
computation. If Landlord provides to Tenant supporting information regarding
Landlord's computation and establishes the basis for the disputed computation,
Tenant shall pay to Landlord the amount of any underpayment of such additional
rent within thirty (30) days after the dispute is finally resolved, together
with interest on the unpaid amount from the date of Tenant's receipt of
Landlord's written request with supporting information at an annualized rate of
the Prime Rate (as defined in Section 6.2, below) plus two (2%) percent.
3. SECURITY DEPOSIT; ADVANCE DEPOSIT
3.1 Security Deposit. Simultaneously with the execution of this Lease by
Tenant, Tenant shall provide Landlord with a security deposit in an amount equal
to Thirteen Thousand seventy-one Dollars and 88/100 ($13,071.88) (the "Security
Deposit"). To the extent the Security Deposit is less than the security deposit
held by Landlord in connection with a previous lease with Tenant for the
Premises, Landlord will credit the amount of the excess to Tenant on Landlord's
next invoice. The Security Deposit shall constitute security for payment of Rent
and additional rent and for any and all other obligations of Tenant under this
Lease. If Tenant defaults with respect to any covenant or condition of this
Lease, including but not limited to the payment of Rent, additional rent or any
other payment due under this Lease, and/or the obligation of Tenant to maintain
the Premises and deliver possession thereofback to Landlord at the expiration or
earlier termination of the Lease Term in the condition required herein, then
Landlord may (without any waiver of Tenant's default being deemed to have
occurred) apply all or any part of the Security Deposit to the payment of any
sum in default, or any other sum which Landlord may be required or deem
necessary to spend or incur by reason of Tenant's default, or to satisfy in part
or in whole any damages suffered by Landlord as a result of Tenant's default. In
the event of such application, Tenant shall promptly deposit with Landlord the
amount necessary to restore the Security Deposit to the full amount set forth
above. The parties expressly acknowledge and agree that the Security Deposit is
not an advance payment of Rent or
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additional rent, nor a measure of Landlord's damages in the event of any default
by Tenant. If Tenant shall have fully complied with all of the covenants and
conditions of this Lease, but not otherwise, the amount of the Security Deposit
then held by Landlord shall be repaid to Tenant within thirty (30) days after
the expiration or sooner termination of this Lease. In the event of a sale or
transfer of Landlord's estate or interest in the Building, Landlord shall have
the right to transfer the Security Deposit to the purchaser or transferee, and
Landlord shall be considered released by Tenant from all liability for the
return of the Security Deposit. If the Security Deposit is not transferred in
connection with such a sale or transfer of Landlord's interest, the Security
Deposit shall be refunded to Tenant.
3.2 No Separate Account. Landlord shall not be obligated to hold the
Security Deposit in a separate account from other Building or project funds.
4. USES; TENANT COVENANTS.
4.1 Permitted Uses. The Premises are to be used only for general office
and administrative purposes ("Permitted Uses") and for no other business or
purpose.
4.2 Other General Use Covenants.
4.2.1 Tenant shall not commit or allow to be committed any waste
upon the Premises, nor any public or private nuisance nor any other act which
disturbs the quiet enjoyment of any other tenant in the Building. If any of the
Tenant's office machines or equipment or other activities within the Premises
involve unusual volume or vibration and disturb any other tenant in the
Building, then Tenant shall provide adequate insulation, or take such other
action, as may be necessary to eliminate the noise or disturbance.
4.2.2 Tenant will, at its own cost, promptly comply with and carry
out all orders, requirements or conditions now or hereafter imposed upon it by
the ordinances, laws, rules, orders, and/or regulations of the State in which
the Premises are located and the federal government and any other federal, state
or local governmental authority, or public or quasi-public authority, having
jurisdiction over the Premises to the extent relating to the manner of Tenant's
occupation or use of the Premises, the conduct of Tenant's business therein, or
the construction of any improvements or alterations therein by (or at the
request of) Tenant, including all present and future laws, orders and
regulations regarding recycling of trash and smoking in the workplace, and all
building and life safety codes applicable to Tenant's alterations. The foregoing
notwithstanding, to the extent that any such orders, requirements or conditions
relate to the compliance of the Premises (or any portion thereof) with
applicable building codes, regulations, or laws which were in effect prior to
Tenant's occupancy of the Premises or which pertain to the Building as a whole,
or the land upon which same is located, either of which require Landlord to make
modifications thereto (the "Compliance Laws"), then Landlord shall be
responsible for the compliance of such item(s) with such Compliance Laws,
including but not limited to, costs of compliance of Landlord's Work with the
physical accessibility requirements of the Americans With Disabilities Act
("ADA") in existence on the Commencement
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Date; provided, however, if the Compliance Laws require Landlord to make
modifications to the Building, the Land, or the Premises, because of
improvements made by the Tenant subsequent to the Commencement Date or because
of any particular use made of the Premises by Tenant which is not in the nature
of customary general office use, all such costs shall be paid by Tenant. Tenant,
at Tenant's cost, shall be responsible for ensuring that Tenant's policies and
business operations with respect to the Premises comply with the ADA, and that
Tenant's Work (and that Landlord's Work to the extent designed by Tenant's
architect) complies with the ADA. As provided, above, Landlord will be
responsible for assuring that the Building and access to the Premises are in
compliance with the ADA.
4.2.3 Tenant shall observe such reasonable rules and regulations as
may be adopted and made available to Tenant by Landlord from time to time for
the safety, care and cleanliness of the Premises or the Building and for the
preservation of good order therein. The initial rules and regulations for the
Building are attached as Exhibit D hereto and made a part hereofby this
reference (as the same may be amended in accordance herewith, the "Rules and
Regulations"). Landlord shall have the right from time to time to make
reasonable modifications to the Rules and Regulations, provided (i) such
modifications shall only be applicable to Tenant if communicated to Tenant in
writing at least ten (10) days prior to the effective date of such modification,
(ii) such modified Rules and Regulations shall not materially modify any
economic obligations of Tenant hereunder, and (iii) in the event of any
irreconcilable conflict between the terms of this Lease and the terms of the
Rules and Regulations (as amended), the terms of this Lease shall be
controlling. All rules and regulations will be applied equally to similar
tenants throughout the Building and will be equally enforced. Landlord shall not
be responsible to Tenant for the nonperformance of any of said rules and
regulations by any other tenants or occupants of the Building.
4.2.4 No act shall be done or knowingly permitted by Tenant, or its
agents, employees and/or contractors, in or about the Premises that is unlawful
or that will increase the existing rate of insurance on the Building. To
Landlord's knowledge, general office use is neither unlawful, nor will it result
in any increase in the existing rate of insurance in the Building. Landlord will
not knowingly take any action which would result in Tenant's use of the Premises
becoming unlawful or which would result in an increase in Tenant's existing rate
of insurance. In the event the existing rate of insurance is increased because
of any breach by Tenant of this covenant, Tenant shall pay to Landlord any and
all fines, penalties, and/or increases in insurance premiums resulting from such
breach.
5. ENVIRONMENTAL PROVISIONS; RECYCLING.
5.1 General. Landlord will be responsible for (x) the compliance of the
Building with the Environmental Laws (defined below), other than those matters
which are the responsibility of Tenant, as provided below, and (y) the presence
of Hazardous Materials (defined below) in the Building, other than those which
arise due to a failure on the part of Tenant to comply with the provisions of
this Section 5. Tenant agrees to comply with any and all Environmental Laws in
connection with (1) Tenant's use of the Premises, (2) any assignment, sublease
or license of the Premises or any part thereof, (3) any termination of this
Lease and surrender of possession upon a
6
default by Tenant hereunder, (4) any corporate reorganization, consolidation,
recomposition or similar change in Tenant's organization, (5) any acts, failures
to act where actions are required and other activities of Tenant in or on the
Building and Land, and/or (6) any other fact or circumstance the existence and
continuation of which imposes upon Tenant the obligation to so comply therewith.
5.2 Tenant's Warranties and Covenants. During the Term and any Renewal
Term of this Lease, Tenant warrants, represents and covenants to and with
Landlord as follows:
5.2.1 The Premises will not, as the result of any acts or failures
to act where actions are required of Tenant, contain (A) asbestos in any form,
(B) urea formaldehyde foam insulation, (C) transformers or other equipment which
contain dielectric fluid containing levels of polychlorinated biphenyls in
excess of fifty (50) parts per million, or (D) any flammable explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous,
controlled or toxic substances, or any pollutant or contaminant, or related
materials defined in or controlled pursuant to the Mass. General Laws c. 21E,
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Sections 9601 et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 1801 et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sections 9601 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean
Air Act (42 U.S.C. Section 7401 et seq.), and in the regulations adopted and
publications promulgated pursuant thereto, and any and all other federal, state
and local laws, rules and regulations or orders pertaining to health, the
environment and/or Hazardous Materials (collectively, "Environmental Laws") (the
substances described in (A), (B), (C) or (D) above being hereinafter
collectively referred to as "Hazardous Materials"); (ii) except as specifically
permitted by this Lease, the Premises will never be used by Tenant for any
activities involving, directly or indirectly, the use, generation, treatment,
transportation, storage or disposal of any Hazardous Materials.
5.2.2 Tenant (A) shall comply in the operation of its business, and
in its use and occupancy of the Premises, with all Environmental Laws, (B) shall
not store, utilize, generate, treat, transport or dispose of (or permit or
acquiesce in the storage, utilization, generation, transportation, treatment or
disposal of) any Hazardous Materials on or from the Premises, and (C) shall
cause its employees, agents, contractors, assignees, sublessees, licensees and
(while within the Premises) invitees and business visitors to comply with the
representations, warranties and covenants herein contained. For all purposes of
this Section 5, references to "Tenant" shall be deemed to include acts or
failures to act where actions are required by Tenant and Tenant's agents,
employees, contractors, subcontractors, assignees, sublessees, licensees and,
while within the Premises, invitees and business visitors.
5.2.3 In the event of any storage, presence, utilization,
generation, transportation, treatment or disposal of Hazardous Materials by
Tenant in, on or about the Premises, Building and/or Land, or in the event of
any Hazardous Materials Release (as hereinafter defined) for which Tenant bears
responsibility under the provisions of this Section 5, Tenant shall, at the
direction of Landlord or any federal, state, or local authority or other
governmental authority, remove or cause the removal of any such Hazardous
Materials and rectify any such Hazardous Materials Release, and otherwise
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comply or cause compliance with the laws, rules, regulations or orders of such
authority, all at the expense of Tenant, including without limitation, the
undertaking and completion of all investigations, studies, sampling and testing
and all remedial, removal and other actions necessary to clean up and remove all
such Hazardous Materials, on, from or affecting the Premises. If Tenant shall
fail to proceed with such removal or otherwise comply with such laws, rules,
regulations or orders within the cure period permitted under the applicable law,
regulation or order, the same shall constitute a default under Section 23
hereof, and Landlord may, but shall not be obligated to, do whatever is
necessary to eliminate such Hazardous Materials from the Premises or otherwise
comply with the applicable law, rule, regulation or order, acting either in its
own name or in the name of Tenant pursuant to this Section, and the cost thereof
shall be borne by Tenant and thereupon become due and payable as additional rent
hereunder. Tenant shall give to Landlord and its agents and employees access to
the Premises for such purposes and hereby specifically grants to Landlord a
license to remove the Hazardous Materials and otherwise comply with such
applicable laws, rules, regulations or orders, acting either in its own name or
in the name of the Tenant pursuant to this Section.
5.2.4 Tenant hereby indemnifies and holds Landlord and each of its
shareholders, subsidiaries, affiliates, officers, directors, partners,
employees, agents and trustees, and any receiver, trustee or other fiduciary
appointed for the Building, harmless from, against, for and in respect of, any
and all damages, losses, settlement payments, obligations, liabilities, claims,
actions or causes of actions, encumbrances, fines, penalties, and costs and
expenses suffered, sustained, incurred or required to be paid by any such
indemnified party (including, without limitation, reasonable fees and
disbursements or attorneys, engineers, laboratories, contractors and
consultants) because of, or arising out of or relating to (A) the violation by
Tenant (or any of its agents, employees, contractors and, while within the
Premises, invitees) of any of its representations, warranties and covenants
under this Section 5, and (B) any Environmental Liabilities (as hereinbelow
defined) in connection with the Premises for which Tenant is responsible under
the terms of this Section 5 of the Lease. For purposes of this indemnification
clause, "Environmental Liabilities" shall include all costs and liabilities with
respect to the future presence, removal, utilization, generation, storage,
transportation, disposal or treatment of any Hazardous Materials or any release,
spill, leak, pumping, pouring, emitting, emptying, discharge, injection,
escaping, leaching, dumping or disposing into the environment (air, land or
water) of any Hazardous Materials (each a "Hazardous Materials Release"),
including without limitation, cleanups, remedial and response actions, remedial
investigations and feasibility studies, permits and licenses required by, or
undertaken in order to comply with the requirements of, any federal, state or
local law, regulation, or agency or court, any damages for injury to person,
property or natural resources, claims of governmental agencies or third parties
for cleanup costs and costs of removal, discharge, and satisfaction of all
liens, encumbrances and restrictions on the Premises relating to the foregoing.
The foregoing indemnification and the responsibilities of Tenant under this
Section 5 shall survive the termination or expiration of this Lease.
5.2.5 Tenant shall promptly notify Landlord in writing of the
occurrence of any Hazardous Materials Release or any pending or threatened
regulatory actions known to Tenant, or any claims made by any governmental
authority or third party, relating to any Hazardous Materials
8
or Hazardous Materials Release on or from, the Premises and shall promptly
furnish Landlord with copies of any correspondence or legal pleadings or
documents in connection therewith. Landlord shall have the right, but shall not
be obligated, to notify any governmental authority of any state of facts which
may come to its attention with respect to any Hazardous Materials or Hazardous
Materials Release on or from the Premises.
5.2.6 Upon expiration of the Term or any Renewal Term, as
applicable, Tenant shall deliver the Premises to Landlord free of any and all
Hazardous Materials and any liens, encumbrances and restrictions relating to
Environmental Liabilities, to the extent Tenant was otherwise responsible
therefor.
5.3 Permitted Materials. Notwithstanding Section 5.2 to the contrary, but
subject to clauses (i) and (ii) of this Section 5.3, below, Tenant shall be
permitted to temporarily store reasonable amounts of Hazardous Materials that
are used in the ordinary course of Tenant's operation of the Permitted Use (the
"Permitted Materials") provided (i) such Permitted Materials are properly used,
stored and disposed of in a manner and location meeting the requirements of all
Environmental Laws and (ii) all Permitted Materials shall be approved in advance
by Landlord with the exception those materials typically used in the operation
of standard office equipment or for cleaning purposes, such as office cleaners,
printing toners and the like, and which are used stored and disposed of in
accordance with all applicable Environmental Laws (which common materials shall
not require special written approval by Landlord). Any use, storage and disposal
of Permitted Materials shall be subject to all of the terms of this Section 5
(except for the terms prohibiting same), and Tenant shall be responsible for
obtaining any required permits and paying any fees and providing any testing
required by any governmental agency with respect to any Permitted Materials. If
said Permitted Materials are not being stored, used, or disposed of in
compliance with all applicable laws, then Tenant shall immediately take such
corrective action as requested by Landlord. Should Tenant fail to take such
corrective action within forty-eight (48) hours (or such lesser time period as
may be appropriate in the event of Emergency (as defined herein), Landlord shall
have the right to perform such work on Tenant's behalf and at Tenant's sole
expense, and Tenant shall promptly reimburse Landlord for any and all reasonable
costs associated with said work.
5.4 Landlord's Covenants.
5.4.1 If, during the Lease Term, (a) Landlord introduces Hazardous
Materials in, on or under the Building or Land, or otherwise violates the
requirements of any Environmental Laws, or (b) Hazardous Materials contamination
in, on or under the Building or Land which existed prior to Tenant's taking
occupancy of the Premises is discovered, and in either case, such contamination
is not the responsibility of Tenant pursuant to Sections 5.2 and 5.3, above,
then as between Landlord and Tenant, Landlord shall be responsible for making a
prompt assessment of the scope and nature of the problem, and for taking
remedial action, in conjunction (if appropriate) with applicable federal, state
or local authorities; and in the event the presence of such Hazardous Materials
was caused by Landlord, or its authorized agents, employees or contractors,
Landlord shall be responsible for the cost to remediate any such contamination
and/or correct any such violation,
9
and for all fines, penalties and other actual damages arising therefrom. The
foregoing is without prejudice to Landlord's right to seek recovery of damages
or losses from the parties at fault in any Hazardous Materials Release.
5.4.2 Landlord represents and warrants to Tenant that Landlord has
received results of tests conducted in the Building within sixty (60) days of
the date hereof regarding the presence or absence of asbestos in the Building
and that the results of such tests are that there is no friable or airborne
asbestos in the Building in violation of any applicable health or safety
standards.
5.5 Recycling Regulations. Tenant shall comply with all orders,
requirements and conditions now or hereafter imposed by any ordinances, laws,
orders and/or regulations (hereinafter collectively called "regulations") of any
governmental body having jurisdiction over the Premises or the Building, whether
required of Landlord or otherwise, regarding the collection, sorting, separation
and recycling of waste products, garbage, refuse and trash (hereinafter
collectively called "waste products") including but not limited to the
separation of such waste products into receptacles reasonably approved by
Landlord and the removal of such receptacles in accordance with any collection
schedules prescribed by such regulations. Landlord reserves the right (a) to
refuse to accept from Tenant any waste products that are not prepared for
collection in accordance with any such regulations, and (b) to require Tenant to
pay all costs, expenses, fines, penalties or damages that may be imposed on
Landlord or Tenant by reason of Tenant's failure to comply with any such
regulations.
6. LATE CHARGES; INTEREST.
6.1 Late Charge. Tenant hereby acknowledges that late payment to Landlord
of Base Rent or additional rent will cause Landlord to incur administrative
costs and loss of investment income not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. If any Rent or
additional rent due from Tenant is not received by Landlord or Landlord's
designated agent within five (5) business days after the date due, then Tenant
shall pay to Landlord a late charge equal to three percent (3%) of such overdue
amount, plus any attorneys' fees and costs incurred by Landlord by reason of
Tenant's failure to pay Rent and other charges when due hereunder; provided,
however, Landlord agrees to waive the first (1st) such late charge arising
during any Lease Year during the Term, up to a maximum of three (3) such waivers
during the Term, provided that Landlord receives such overdue Base Rent,
additional rent, or other sum within five (5) business days after the date
Landlord provides Tenant with a written notice that such payment of Rent,
additional rent or other charges is overdue. The parties hereby agree that such
late charges represent a fair and reasonable estimate of the administrative cost
that Landlord will incur by reason of Tenant's late payment. Landlord's
acceptance of such late charges shall not constitute a waiver of Tenant's
default with respect to such overdue amount or estop Landlord from exercising
any of the other rights and remedies granted hereunder.
6.2 Interest. In addition to the administrative late charge provided for
under Section 6.1, above, if any Rent or additional rent due from Tenant to
Landlord is not paid within five (5) business
10
days after the date due (if Tenant was not assessed a late charge by virtue of
such late payment) or thirty (30) days after the date due (if Tenant was
assessed a late charge by virtue of such late payment), such unpaid amount shall
bear interest from the date originally due until the date paid at an annual rate
of interest (the "Default Rate") equal to the Prime Rate plus three percent
(3%). Landlord's acceptance of such interest shall not constitute a waiver of
Tenant's default with respect to such overdue amount or estop Landlord from
exercising any of the other rights and remedies granted hereunder. The term
"Prime Rate" shall mean the "Prime Rate" of interest as published from time to
time in The Wall Street Journal, or if not so published, then the "Prime Rate"
as established from time to time by the bank in which Landlord maintains its
bank accounts with respect to the Building.
7. REPAIRS AND MAINTENANCE.
7.1 Landlord's Responsibilities. Landlord shall maintain or cause to be
maintained, and after receiving notice or actual knowledge of the need for
repair, shall repair all structural and non-structural portions of the Building
Systems (as hereafter defined), Common Areas (as hereafter defined) and
Structural Elements (as hereafter defined), provided that, to the extent any of
such maintenance or repairs is rendered necessary by the negligence or willful
misconduct of Tenant, its agents, customers, employees, independent contractors,
guests or (while within the Premises) invitees, Tenant shall be obligated to
reimburse Landlord for all costs sustained by Landlord in connection therewith
to the extent such costs are not covered by the fire and casualty insurance
maintained, or required to be maintained, by Landlord on the Building, which
reimbursement shall be due no later than ten (10) days after Landlord's written
demand. For the purposes of this Section 7, "Building Systems" shall mean the
mechanical, electrical, plumbing, and HVAC systems serving the Building and
located outside of the confines of the Premises; "Common Areas" shall mean those
areas of the Building which are available for the non-exclusive use of any
tenant of the Building, including without limitation parking areas, lobbies,
elevators, restrooms, stairs, corridors, janitor's closets, and electrical and
telephone closets; and "Structural Elements" shall mean the structural
components of the Building's base building improvements, including structural
components which integrate with the interior tenant improvements within the
Premises, including without limitation the roof, foundations, exterior
structural walls and other load-bearing elements of the Building.
7.2 Tenant's Responsibilities. Except for (i) repairs to Building Systems,
Common Areas and Structural Elements, (ii) warranty repairs related to
Landlord's Work (if any), (iii) janitorial and cleaning services to the extent
provided by or through Landlord under Section 8.2, below, and (iv) repairs to
the interior of the Premises to the extent the same are rendered necessary by
the negligence or willful misconduct of Landlord and its agents, employees and
independent contractors, and are not covered by the fire and casualty insurance
maintained, or required to be maintained, by Tenant under this Lease, Tenant
shall be responsible (at Tenant's sole expense) for repairs and maintenance to
the interior of the Premises.
7.3 Notification Requirements. Landlord shall be under no obligation to
inspect the Premises. Tenant shall promptly report in writing to Landlord any
defective condition in the Premises actually known to Tenant which Landlord is
required to repair, and failure to so report such
11
defects shall excuse any delay by Landlord in commencing and completing such
repair to the extent the same would otherwise be Landlord's responsibility under
this Lease. In addition, if Tenant fails to report a physically detectable
condition within the Premises within a reasonable time after Tenant first has
notice thereof, and such failure results in any incremental additional repair
expense, Tenant shall be responsible for such incremental additional expense.
7.4 Expenses. All expenses incurred by Landlord pursuant to this Section
7 (to the extent not payable directly by Tenant as above provided) will be
included within "Operating Costs" as defined in Section 9, below, to the extent
not excluded under Section 9.6.
8. UTILITIES AND SERVICES.
8.1 Hours of Service. From 8:00 a.m. to 6:00 p.m. on weekdays and from
8:00 a.m. to 1:00 p.m. on Saturday (collectively "Normal Business Hours") (but
excluding the following holidays: New Year's Day, Xxxxxx Xxxxxx Xxxx'x Birthday,
President's Day, Patriot's Day, Memorial Day, Independence Day, Labor Day,
Columbus day, Veterans Day, Thanksgiving Day, the day after Thanksgiving,
Christmas Day and any holiday designated as such by an Executive Order of the
President of the United States or by Act of Congress, herein collectively
referred to as "Holidays"), Landlord shall furnish (i) electricity to the
Premises for lighting and for the operation of normal and customary office
machines, heating, ventilation and air-conditioning ("HVAC") service, (ii) hot
and cold water to common area restrooms, and (iii) if applicable, elevator
service. Landlord shall also provide for toilet cleaning and supply, common area
and in-suite janitorial services, and window washing (collectively "Janitorial
Services") on weekdays (excluding Holidays) in accordance with the
specifications set forth in Exhibit E. Landlord shall also provide electrical
service (excluding HVAC), hot and cold water and at least one elevator (if
applicable), as above provided, at all times other than Normal Business Hours.
The cost of all of the foregoing services furnished by Landlord shall constitute
Operating Costs or Costs of Electricity, as the case may be, and shall be
payable as provided in Section 9 of this Lease.
8.2 Additional HVAC Service. If requested by Tenant, Landlord shall
furnish HVAC service at times other than Normal Business Hours and the cost of
such services as established from time to time by Landlord shall be paid by
Tenant as additional rent, payable as provided in Section 2. If the quantity or
kind of utilities or services furnished by Landlord to the Premises to meet
Tenant's requirements is excessive or abnormal relative to the utilities and
services consumed by office tenants generally, as determined by engineering
surveys conducted by a licensed third party engineer selected by Landlord at
Landlord's expense, Tenant shall reimburse Landlord upon demand for the
additional cost resulting from Tenant's excessive or abnormal consumption.
8.3 Additional Provisions. Except as specifically provided in Section 8.5,
below, Landlord shall not be liable to Tenant for any loss, injury or damage to
property, or loss of income or other business loss, caused by or resulting from
any variation, interruption, or failure of such services due to any cause
whatsoever, or from failure to make any repairs or perform any maintenance. In
addition, Landlord shall not be liable to Tenant for (a) any damage to the
Premises, (b) any loss, damage or injury to any property therein or thereon, (c)
any claims for the interruption
12
of or loss to Tenant's business or (d) for any indirect damages or consequential
losses, to the extent occasioned by bursting, rupture, leakage or overflow of
any plumbing or other pipes, other water leakage or flooding, or other similar
causes in, above, upon or about the Premises or the Building. If any public
utility or governmental body shall require Landlord or Tenant to restrict the
consumption of any utility or reduce any service to the Premises or the
Building, Landlord and Tenant shall comply with such requirements, without any
abatement or reduction of the Rent, additional rent or other sums payable by
Tenant hereunder.
8.4 Measurement of Tenant's Electrical Consumption. Landlord has installed
meters to measure Tenant's electrical consumption. For purposes of determining
Tenant's obligation to pay Costs of Electricity as set forth in Section 9,
below, Tenant's electrical consumption hereunder, shall be that associated with
the electrical lights, outlets, and other electrical connections located within
the Premises and shall not include the electrical consumption of the HVAC unit
which serves the Premises (the cost of which electrical consumption shall be
included within Operating Costs pursuant to Section 9).
8.5 Interruption in Services. Section 8.3, above, to the contrary
notwithstanding, in the event that (i) the supply of hot and cold water, HVAC
Service, electricity and/or (if applicable) elevator service for a minimum of
one (1) elevator (hereinafter, each an "Essential Service" and collectively
"Essential Services") is interrupted as a result of the negligence or willful
misconduct of Landlord, or its agents, employees or contractors (and not as a
result of any cause beyond Landlord's reasonable control, such as a general
electrical outage or blackout), and (ii) such interruption continues for a
period exceeding two (2) consecutive business days after Tenant first notifies
Landlord of such interruption, and (iii) as a result thereof Tenant is unable to
and does not in fact conduct business from the Premises or any portion thereof,
then from and after such third (3rd) consecutive business day, Tenant shall be
entitled to xxxxx its Base Rent and additional rent obligations hereunder as to
the Premises or portion thereof which is not usable (and is in fact not used)
until such time as the applicable Essential Service(s) are restored. The
foregoing shall constitute Tenant's sole and exclusive remedy in the event of an
interruption of services to the Premises. In addition, if Landlord fails
promptly to commence, and to use diligent efforts thereafter, to cure (or to
cause the applicable utility provider to cure) the applicable interruption or
failure (even if not caused by Landlord's negligence or misconduct), then Tenant
shall have the right to exercise its right of self-help as more fully set forth
in Section 34, below (subject to any provisions therein requiring notice and the
opportunity to cure), and all reasonable expenses incurred by Tenant in the
exercise of such right shall be recoverable by Tenant from Landlord.
9. COSTS OF ELECTRICITY AND EXPENSE INCREASES.
9.1 Defined. Tenant shall pay directly to the utility company providing
such service to Tenant in Tenant's name the cost of all electrical service
furnished to the Premises (herein referred to as "Costs of Electricity"). For
each calendar year or portion thereof during the Term, Tenant shall pay as
additional rent to Landlord an amount (hereinafter referred to as "Expense
Increases") equal to the difference between:
13
(A) Tenant's Share of Operating Costs (defined in Section 9.5,
below) for such calendar year; and
(B) Tenant's Share of Operating Costs for the "Operating Costs Base
Year" (defined in Section 9.2, below).
9.2 Base Year. For all purposes hereof, the "Operating Costs Base Year"
shall be calendar year 1998.
9.3 Estimated Payments. Tenant shall make monthly installment payments on
an estimated basis toward Tenant's Share of Expense Increases, in an amount
equal to one-twelfth (1/12th) of Landlord's estimate of the Tenant's Share of
Expense Increases for the then-current calendar year, respectively. Tenant's
obligation to make payments of its Costs of Electricity shall commence on first
(1st) day of the first (1st) month of the Term, and Tenant's obligation to make
monthly installment payments toward Tenant's Share of Expense Increases shall
not commence until the first (1st) day of the thirteenth (13th) month of the
Term. The foregoing estimate shall be based on Landlord's reasonable estimate of
Expense Increases for such calendar year (which shall not exceed 105% of the
prior year's Expense Increases in the absence of evidence that a larger estimate
is warranted). Landlord shall endeavor to communicate such estimate to Tenant on
or before the date Landlord provides Tenant with the Expense Statement
referenced in Section 9.4, below, provided that until Landlord provides such
estimate to Tenant, Tenant's estimated payments will be based upon the prior
year's estimate. If at any time or times during such calendar year, it appears
to Landlord that Tenant's Share of Expense Increases for such calendar year will
vary from Landlord's estimate by more than five percent (5%) on an annualized
basis, Landlord may, by written notice to Tenant with reasonable supporting
documentation, revise its estimate for such calendar year and Tenant's estimated
payments hereunder for such calendar year shall thereupon be based on such
revised estimate.
9.4 Annual Reconciliation. Within approximately one hundred twenty (120)
days after the end of each calendar year after the Operating Costs Base Year,
Landlord shall provide to Tenant a statement (the "Expense Statement") setting
forth Operating Costs for such calendar year and Tenant's Share of Expense
Increases for such year, calculated in accordance with Section 9.1, above.
Within fifteen (15) days after Tenant's receipt of such Expense Statement,
Tenant shall pay to Landlord any deficiency between (a) the amount shown as
Tenant's Share of Expense Increases for such calendar year, and (b) any payments
made by Tenant toward such amounts in accordance with Section 9.3, above. If the
payments made by Tenant pursuant to Section 9.3 exceed the amount shown in the
Expense Statement as Tenant's Share of Expense Increases for such calendar year,
the excess amount shall be applied against the next payment(s) of Rent or
additional rent coming due hereunder, unless the Lease shall have expired, in
which event Landlord shall refund such excess at the time of its delivery of the
Expense Statement.
9.5 Operating Costs. The term "Operating Costs" shall mean any and all
expenses incurred by Landlord in connection with the operation, management,
maintenance and repair of the
14
Building and the Land, and all easements, rights and appurtenances thereto,
determined in accordance with generally accepted accounting principles for real
estate entities, but excluding the expenses identified in Section 9.6, below.
Operating Costs shall include:
(a) the cost of the personal property used in conjunction therewith;
(b) subject to Section 9.5(l), below, costs to repair and maintain
the Building, Land, Building Systems, Common Areas and Premises (but excluding
repairs to Structural Elements, which shall be Landlord's sole responsibility,
and which are hereinafter referred to as "Structural Repairs");
(c) all expenses paid or incurred by Landlord for electricity,
water, sewer, and other utility services for the Building, including electricity
provided to the HVAC units which serve the Building, and any utility surcharges
imposed, excluding only the electricity provided to the electrical lights,
outlets, and other electrical connections located within those portions of the
Building that are leased or leasable to tenants and excluding the costs of fuel
in connection with the heating of the Building, the cost of which is included in
Base Rent;
(d) any other costs and expenses incurred in connection with the
provision of the utilities and services set forth in Section 8, above, including
without limitation the maintenance and repair of the Building Systems furnishing
such utilities and/or services and the cost of replacements of Building Systems
made in lieu of needed repairs (as reasonably determined by Landlord), amortized
over the useful lives of such replacements;
(e) the cost of Building supplies and materials;
(f) the cost of cleaning and janitorial services in or about the
Premises, the Building (including without limitation common areas) and the Land;
(g) the cost of window glass replacement, repair and cleaning;
(h) the cost of repair and maintenance of the grounds, including
costs of landscaping, gardening and planting, including service or management
contracts with independent contractors, and including security and energy
management services and costs;
(i) costs to achieve compliance with any governmental laws, rules,
orders or regulations in the operation of the Building and the provision of
services hereunder;
(j) utility taxes;
(k) the amount of compensation (including employment taxes, fringe
benefits, salaries, wages, medical, surgical, and general welfare benefits such
as health, accident and group life insurance, pension payments, payroll taxes,
and worker's compensation insurance) paid for all persons who perform duties in
connection with the operation, management, maintenance and repair
15
of the Building, including building engineers, custodial staff and similar
operating personnel, and including the property manager, but excluding any
executives or other employees of Landlord or its property management firm who
are above the level of property manager, and excluding any portion of such
compensation which is not reasonably allocable to services performed
for the Building;
(l) any capital expenditures incurred to reduce Costs of Electricity
or Operating Costs, to comply with any governmental law, order, regulation or
other legal requirement enacted after the Commencement Date of this Lease, to
replace existing equipment and machinery necessary to the day to day operation
of the Building, or which are capital replacements (i.e., replacements of common
area or common usage Building components and systems in lieu of capital repairs
otherwise required to be made thereto, but excluding capital replacements made
in lieu of Structural Repairs), provided that (i) each such capital expenditures
shall be amortized on a monthly basis over the useful life thereof (not to
exceed one hundred twenty (120) months) at an interest rate of twelve percent
(12%) per annum, and the amount recoverable by Landlord as an Operating Cost in
each year of the Term thereafter occurring (including the year in which such
expenditure is made) shall equal the sum of all such amortization payments
payable during each such year, and (ii) with respect to any capital expenditure
which is incurred solely to reduce Costs of Electricity and/or other Operating
Costs, the amount otherwise recoverable under clause 9.5(l)(i), above, shall be
further limited by the amount of such reduction which is achieved in each
applicable year.
(m) cost of premiums for casualty, liability, elevator, xxxxxxx'x
compensation, boiler and machinery, sprinkler leakage, rent loss, use and
occupancy and other insurance;
(n) license, permit and inspection fees;
(o) management fees not in excess of prevailing, arms length
management fees customarily charged for similar properties in the real estate
market of which the Building is a part;
(p) vault space rentals and public space rentals, if any;
(q) the cost of ordinary compliance with Environmental Laws;
(r) the cost of trash removal, including all costs incurred in
connection with waste product recycling pursuant to Section 5.5 (except to the
extent any such costs are charged directly to the tenants);
(s) any local and state governmental or quasi-governmental
surcharges or special charges assessed in connection with the operation and
maintenance of the Building;
(t) the cost of uniforms and dry cleaning for on-site Building
personnel;
(u) the cost of snow and ice removal or prevention;
16
(v) the cost of telephone, telegraph, postage, stationery supplies
and other materials and expenses required for the routine operation of the
Building;
(w) environmental remediation costs for the common or public areas
of the Building, but only to the extent that the need for such remediation is
not caused by Landlord, its agents or employees;
(x) association assessments or other assessments for project-wide
common area services; and
(y) any other expense or charge whether or not hereinbefore
described which, in accordance with generally accepted accounting and management
practices, would be considered a reasonable and necessary expense of
maintaining, managing, operating or repairing the Building and/or the Land.
9.6 Exclusions. Notwithstanding the foregoing, Operating Costs shall not
include any of the following: (1) capital expenditures, except those set forth
in item 9.5(l), above; (2) costs of any special services rendered to individual
tenants (including Tenant), for which a special, separate charge shall be made;
(3) painting, redecorating or other similar work which Landlord performs for
specific tenants, the expenses of which are paid by such tenants or, if paid by
Landlord, do not arise out of necessary repairs recoverable under Section 9.5;
(4) Real Estate Taxes (as defined in Section 10); (5) depreciation or
amortization of costs required to be capitalized in accordance with generally
accepted accounting practices (except as set forth in Section 9.5(l), above);
(6) ground rent, if Landlord's interest in the land upon which the Building is
located derives solely from a ground lease; (7) interest and amortization of
funds borrowed by Landlord (except as specifically provided above); (8) leasing
commissions, and advertising, legal, space planning and construction expenses,
incurred in procuring, negotiating leases with, and installing leasehold
improvements for, tenants or prospective tenants of the Building; (9) salaries,
wages, or other compensation paid to officers or executives of Landlord (or
Landlord's property management firm) in their capacities as officers and
executives; (10) and any other expenses for which Landlord actually receives
direct reimbursement from insurance, condemnation awards, other tenants or any
other source, excluding general payments of Expense Increases pursuant to this
Section 9 by Tenant and other tenants of the Building.
9.7 Further Adjustment. In the event Landlord shall furnish any utility or
service which is included in the definition of Operating Costs to less than
ninety-five percent (95%) of the rentable area of the Building because (i) the
average occupancy level of the Building for the Base Services Year and/or any
subsequent calendar year was not ninety-five percent (95%) or more of full
occupancy, (ii) any such utility or service is not required by or provided to
one or more of the tenants or occupants of the Building, and such tenant(s)
is(are) not required to contribute its(their) proportionate share thereof, or
(iii) any tenant or occupant is itself obtaining or providing any such utility
or services directly, then the Operating Costs for such year (including the Base
Services Year) shall be adjusted to include all additional costs, expenses and
disbursements that Landlord reasonably determines would have been incurred had
the Building been ninety-five percent (95%) occupied during the year in question
and such utilities and services provided to all tenants. The
17
intent of this Section 9.7 is to ensure that the reimbursement of all Operating
Costs is fair and equitably allocated among the tenants receiving such utilities
and services. In the calculation of Operating Costs hereunder, no expense shall
be charged more than once.
9.8 Tenant's Right of Review.
9.8.1 Each Expense Statement which Landlord provides to Tenant
pursuant to this Section 9, above, shall be conclusive and binding upon Tenant
unless, within thirty (30) days after Tenant's receipt of the Expense Statement
for a particular calendar year, Tenant provides Landlord with written notice
(the "Review Notice") stating that Tenant is exercising its right to undertake a
more extensive review of the Operating Costs or Real Estate Taxes (hereinafter
"Total Expenses") for the Building for such calendar year. Such review shall
commence within thirty (30) days after Tenant's Review Notice on a mutually
agreeable time and date, at the offices of Landlord (or such other location as
is reasonably designated by Landlord), and shall be completed within thirty (30)
days after commenced. Tenant's review shall take place during Landlord's normal
business hours, and shall be limited to those books and/or documentation which
contain the data for and the method used by Landlord in calculating the Total
Expenses for the Building for the applicable year. Tenant's right to review
Total Expenses for the Building for a particular calendar year shall be a
one-time right for each calendar year.
9.8.2 Tenant shall notify Landlord in writing of the results of
Tenant's review within ten (10) business days after such review is completed. If
Tenant's review demonstrates that Landlord has overstated Total Expenses, but by
less than five percent (5%), then Landlord shall credit the amount of such
overstatement against Tenant's next due payment of Base Rent and additional
rent, and Tenant shall bear the full cost of Tenants s review. If Tenant's
review demonstrates that Landlord has overstated Total Expenses by five percent
(5%) or more, then Landlord shall credit such amount against Tenant's next due
payment of Base Rent and additional rent, and Landlord shall reimburse Tenant
the reasonable and actual costs of Tenant's review, not to exceed Two Thousand
Five Hundred Dollars ($2,500.00). If Tenant's review demonstrates that Landlord
has not overstated Total Expenses, then (i) Landlord shall have the right to
invoice Tenant for any amount by which Tenant's share of Total Expenses was
understated, which invoice shall be payable by Tenant within fifteen (15) days
after receipt thereof, (ii) Tenant shall bear the full cost of Tenant's review,
and (iii) Tenant shall reimburse Landlord for any reasonable and actual third
party costs which Landlord incurred in connection with such review, not to
exceed Two Thousand Five Hundred Dollars ($2,500.00).
9.8.3 If Landlord disputes the results of Tenant's review, and the
parties are unable to reach agreement with regard thereto despite good faith
efforts to do so, Tenant may submit the matter for resolution by binding
arbitration, in accordance with the commercial arbitration rules of the American
Arbitration Association. In no event will Tenant withhold any Base Rent or
additional rent otherwise due under this Lease during the pendency of any such
review (or during the pendency of any dispute with regard to the results of such
review).
18
10. INCREASES IN REAL ESTATE TAXES
10.1 Defined. For each calendar year or portion thereof during the Term,
Tenant shall pay as additional rent to Landlord, without diminution, set-off or
deduction, Tenant's share of an amount (hereinafter referred to as "Tax
Increases") equal to the difference between:
(A) "Tenant's Share" of "Real Estate Taxes" (defined in Section
10.5, below) paid in such calendar year; and
(B) "Tenant's Share" of "Real Estate Taxes" paid in the "Real Estate
Tax Base Year" (defined below.)
10.2 Base Year. For all purposes hereof, the Real Estate Tax Base Year
shall be fiscal year 1998.
10.3 Estimated Payments. Tenant shall make monthly installment payments
toward Tenant's Share of Tax Increases on an estimated basis, based on
Landlord's reasonable estimate of Tax Increases for such calendar year. Tenant
shall pay Landlord commencing on the first day of the month immediately
following the last day of the Real Estate Tax Base Year, and on the first day of
each month thereafter during the Term, one-twelfth (1/12th) of Landlord's
estimate of Tenant's Share of Tax Increases for the then-current calendar year.
If at any time or times during such calendar year, it appears to Landlord that
Tenant's Share of Tax Increases for such calendar year will vary from Landlord's
estimate by more than five percent (5%) on an annualized basis, Landlord may, by
written notice to Tenant, revise its estimate for such calendar year and
Tenant's estimated payments hereunder for such calendar year shall thereupon be
based on such revised estimate.
10.4 Annual Reconciliation. Within one hundred twenty (120) days after the
end of each calendar year after the Real Estate Tax Base Year, Landlord shall
provide to Tenant a statement (the "Expense Statement") setting forth the total
Real Estate Taxes for such calendar year and Tenant's Share of Tax Increases for
the applicable year. Within fifteen (15) days after the delivery of such Expense
Statement, Tenant shall pay to Landlord any deficiency between the amount shown
as Tenant's Share of Tax Increases for such calendar year and the estimated
payments made by Tenant toward such amount in accordance with Section 10.3,
above. In the case of excess estimated payments, the excess shall be applied
against estimated payments of Real Estate Taxes for the subsequent calendar
year, unless the Lease shall have expired, in which event Landlord shall refund
such excess, without interest, with the delivery of the Expense Statement.
10.5 Real Estate Taxes. For purposes of this Lease, "Real Estate Taxes"
shall mean all taxes and assessments, general or special, foreseen or
unforeseen, assessed, levied or imposed upon the Property, or assessed, levied
or imposed upon the fixtures, machinery, equipment or systems in, upon or used
in connection with the operation of the Property under the current or any future
taxation or assessment system or modification of, supplement to, or substitute
for such system. Real Estate Taxes (a) shall include all reasonable expenses
(including, but not limited to, attorneys' fees, disbursements and actual costs)
incurred by Landlord in obtaining or (consistent with reasonable and
19
customary management practices) attempting to obtain a reduction of such taxes,
rates or assessments, including any legal fees and costs incurred in connection
with contesting or appealing the amounts or the imposition of any Real Estate
Taxes, and (b) shall exclude any franchise, capital stock, capital, rent,
income, profit or similar tax or charge. Landlord shall pay any special
assessment by installments to the extent it has the right to do so, and in such
event, Real Estate Taxes shall include such installments and interest paid on
the unpaid balance of the assessment. In the event Landlord succeeds in
obtaining a reduction of such taxes, rates or assessments, then, after
reimbursement to Landlord of all expenses (including, but not limited to,
reasonably incurred attorneys' fees, disbursements and actual costs) incurred by
Landlord in obtaining such reduction, Tenant shall be entitled to receive its
proportionate share of the net amount of any refund received or reduction
obtained by Landlord to the extent allocable to the Term of this Lease.
11. ADDITIONAL PROVISIONS: OPERATING COSTS AND REAL ESTATE TAXES.
11.1 Partial Year; End of Term. To the extent Real Estate Taxes, and/or
any items of Operating Costs, cannot more accurately be determined for any
partial calendar year of the Term by a method other than proration, the parties
agree that such determination shall be made by multiplying the amount thereof
for the full calendar year by a fraction, the numerator of which is the number
of days during such partial calendar year falling within the Term and the
denominator of which is 365. If this Lease terminates on a day other than the
last day of a calendar year, the amount of any adjustment to Tenant's Share of
Expense Increases and Tax Increases with respect to the calendar year in which
such termination occurs shall be prorated on the basis which the number of days
from the commencement of such calendar year to and including such termination
date bears to 365; and any amount payable by Landlord to Tenant or Tenant to
Landlord with respect to such adjustment shall be payable within thirty (30)
days after delivery by Landlord to Tenant of the applicable Expense Statement
with respect to such calendar year.
11.2 Other Taxes. In addition to Tenant's Share of both Expense Increases
and Tax Increases: (a) Tenant shall pay to Landlord (in accordance with Section
1.5, above) Tenant's Share of any taxes imposed upon the Premises, the Building,
the Land or the rents payable hereunder in the nature of a sales or use tax or
other levy (but not including any income or franchise tax, net profits tax,
estate tax, inheritance tax or payroll tax); and (b) Tenant shall pay, prior to
delinquency, all personal property taxes payable with respect to all property of
Tenant located in the Premises or the Building and shall provide promptly, upon
request of Landlord, written proof of such payment.
11.3 Timing of Estimates. If Landlord does not determine its estimate for
the then current calendar year of Tenant's Share of Expense Increases and/or Tax
Increases until February 1 or later, Tenant shall continue to make such payments
at the prior calendar year's rate, and in such event, Tenant's first such
estimated payment installment after such estimate is first made or updated shall
include, retroactively, any increases in the monthly estimated payments
applicable since January 1 of the same calendar year.
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12. TENANT'S INSURANCE.
12.1 Coverage Requirements. Tenant shall during the Term of this Lease,
procure at its expense and keep in force the following insurance: (i) Commercial
general liability insurance naming the Landlord and Landlord's managing agent as
additional insureds against any and all claims for bodily injury and property
damage occurring in or about the Premises. Such insurance shall have a combined
single limit of not less than One Million Dollars ($1,000,000) per occurrence
with a Two Million Dollar ($2,000,000) aggregate limit and excess umbrella
liability insurance in the amount of Two Million Dollars ($2,000,000). If Tenant
has other locations that it owns or leases, the policy shall include an
aggregate limit per location endorsement. Such liability insurance shall be
primary and not contributing to any insurance available to Landlord and
Landlord's insurance shall be in excess thereto. In no event shall the limits of
such insurance be considered as limiting the liability of Tenant under this
Lease; (ii) personal property insurance insuring all equipment, trade fixtures,
inventory, fixtures and personal property located within the Premises for perils
covered by the causes of loss -- special form (all risk) and in addition,
coverage for flood, earthquake and boiler and machinery (if applicable), which
insurance shall be written on a replacement cost basis in an amount equal to one
hundred percent (100%) of the full replacement value of the aggregate of the
foregoing; (iii) workers' compensation insurance in accordance with statutory
laws and employers' liability insurance with a limit of not less than One
Hundred Thousand Dollars ($100,000) per employee and Five Hundred Thousand
Dollars ($500,000) per occurrence; (iv) business interruption and/or loss of
rental insurance in an amount equal to at least to twelve (12) Base Rent payable
by Tenant hereunder, and which shall not contain a deductible greater than an
amount equal to seventy-two (72) hours of the Rent in effect at such time (or an
equivalent amount expressed in dollars), and which shall name Landlord as an
additional insured; and (v) such other insurance as may be required by
Landlord's beneficiaries or mortgagees of any deed of trust or mortgage
encumbering the Premises, or as is reasonable and customary for first class
office buildings in the area in which the Building is located.
12.2 Rating; Certificates; Cancellation. The policies required to be
maintained by Tenant shall be with companies reasonably acceptable to Landlord
and licensed to do business in the state in which the Premises are located and
domiciled in the USA. Except as provided in Section 12.1, above, any deductible
amounts under any insurance policies required hereunder shall not exceed Fifteen
Thousand Dollars ($15,000). Evidence of insurance (certificates and copies of
the policies may be required) shall be delivered to Landlord prior to the
Commencement Date. Each policy of insurance shall provide notification to
Landlord at least thirty (30) days prior to any cancellation or modification.
Tenant shall have the right to provide insurance coverage which it is obligated
to carry pursuant to the terms hereof in a blanket policy, provided such blanket
policy expressly affords coverage to the Premises and to Landlord as required by
this Lease.
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13. LANDLORD'S INSURANCE.
At all times during the Lease Term, Landlord will maintain (a) fire and
extended coverage insurance covering the Building, in an amount sufficient to
prevent Landlord from being a co-insurer under its policies of insurance, and
(b) public liability and property damage insurance in an amount customary for
properties which are comparable to the Building, as determined by Landlord in
its sole but reasonable discretion. Landlord shall also have the right to obtain
such other types and amounts of insurance coverage on the Building and
Landlord's liability in connection with the Building as Landlord determines is
customary or advisable for a first class office building in the Boston
metropolitan area. Tenant acknowledges and agrees that all premiums for
insurance obtained by Landlord pursuant to this Section 13 shall be included
within "Operating Costs", as such term is defined in Section 9, above.
14. DAMAGE OR DESTRUCTION.
14.1 Damage Repair.
14.1.1 If the Premises shall be destroyed or rendered untenantable,
either wholly or in part, by fire or other casualty, then, unless this Lease is
terminated for reasons permitted pursuant to Sections 14.2 and/or 14.5, below,
Landlord shall, within thirty (30) days after the date of such casualty, provide
Tenant with Landlord's good faith written estimate (the "Estimate") of how long
it will take to repair or restore the Premises.
14.1.2 If the Estimate indicates that Landlord will require less
than one hundred (180) days after the date governmental permits and approvals
are obtained to perform such repairs or restoration, then this Lease shall
continue in full force and effect, and Landlord shall, promptly after adjusting
the insurance claim, promptly (within, in any event, no more than forty-five
(45) days of the date of the Estimate) apply for and obtain governmental
approvals for reconstruction and promptly commence and diligently prosecute to
completion the restoration of the Premises to their previous condition, subject
to Section 14.4 below and subject to Force Majeure (as defined herein) or delay
caused by Tenant. Pending substantial completion of such restoration, the Rent
shall be abated in the same proportion as the untenantable portion of the
Premises bears to the whole thereof.
14.1.3 If Landlord indicates within the Estimate that it will
require in excess of one hundred eighty (180) days after obtaining governmental
permits and approvals to fully repair or restore the Premises in accordance
herewith, then within thirty (30) days after Landlord delivers Tenant the
Estimate, either Landlord or Tenant shall have the right to terminate this Lease
by written notice to the other, which termination shall be effective as of the
date of such notice of termination, and all liabilities and obligations of
Landlord and Tenant thereafter accruing shall terminate and be of no legal force
and effect.
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14.1.4 If neither party elects to terminate the Lease, as aforesaid,
and Landlord fails or declines to exercise any other termination right pursuant
to this Section 14, Landlord shall, promptly after adjusting the insurance claim
and obtaining governmental approvals for reconstruction, commence and diligently
prosecute to completion such restoration. If such restoration is not
substantially completed within one hundred eighty (180) days after obtaining
permits and approvals as aforesaid (or such longer period as was referenced in
the Estimate, if applicable), then for a period of up to thirty (30) days after
the expiration of such period (but in all events no later than the date Landlord
substantially completes its restoration of the Premises), Tenant shall have the
right to terminate this Lease upon thirty (30) days prior written notice to
Landlord; provided, however, that if Landlord completes such restoration prior
to the end of the thirty (30) day notice period, Tenant's notice of termination
shall be deemed rescinded and ineffective for all purposes, and this Lease shall
continue in full force and effect. The provisions of this Section are in lieu of
any statutory termination provisions allowable in the event of casualty damage.
14.2 Termination for Material or Uninsured Damages. If (i) the Building
shall be materially destroyed or damaged to the extent that the restoration of
such, in Landlord's judgment, is not economical or feasible, or (ii) the
Building shall be materially destroyed or damaged by any other casualty other
than those covered by such insurance policy, notwithstanding that the Premises
may be unaffected directly by such destruction or damage, or (iii) Landlord's
mortgagee (if any) requires that the proceeds of insurance be applied to reduce
any amounts outstanding under such mortgage, then in any such event, Landlord
or, within thirty (30) days of notice by Landlord to Tenant of the foregoing
circumstances, Tenant may, at their respective elections, terminate this Lease
by notice in writing to the other within thirty (30) days after, respectively,
such destruction or damage or the date of Tenant's receipt of Landlord's notice.
Such notice shall be effective thirty (30) days after receipt thereof by the
other party.
14.3 Business Interruption. Other than rental abatement as and to the
extent provided in Section 14.1, no damages, compensation or claim shall be
payable by Landlord for inconvenience or loss of business arising from
interruption of business, repair or restoration of the Building or Premises.
14.4 Repairs. Landlord's repair obligations, should it elect to repair,
shall be limited to restoration of improvements which are covered by Landlord's
insurance. Tenant acknowledges that any such repairs or restorations shall be
subject to applicable laws and governmental requirements, the requirements of
Landlord's mortgagee (if any), and to delay in the process of adjusting any
insurance claim associated therewith; and neither delays resulting from any of
the foregoing, nor modifications to the Building or to the interior of the
Premises occurring by virtue of the application of such requirements, shall not
constitute a breach of this Lease by Landlord as long as Landlord uses
reasonable efforts to commence and complete such repairs and restorations in a
timely fashion consistent with the pre-existing condition of the applicable
improvements.
14.5 End of Term Casualty. Anything herein to the contrary
notwithstanding, if the Premises are destroyed or damaged during the last
eighteen (18) months of the Lease Term, then
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either Landlord or Tenant shall have the right to terminate this Lease upon
thirty (30) days prior written notice to the other, which termination shall be
effective on the thirtieth (30th) day after the other party's receipt of such
notice. Such notice must be delivered within thirty (30) days after such
casualty, or shall be deemed waived.
14.6 Relocation to Interim Space. If all or part of the Premises is
damaged or destroyed by fire or other casualty and neither party elects to
exercise its termination right hereunder (or if no termination rights are
triggered), then Landlord shall have the option, to be exercised by delivering
written notice to Tenant within thirty (30) days after the date of such
casualty, to relocate Tenant to available space in the Building which is
comparable to the Premises (the "Interim Space") for the period during which the
Premises are repaired or restored, provided that (i) Landlord shall pay the
reasonable and actual costs to move Tenant's moveable fixtures, furniture and
equipment into the Interim Space, and out of the Interim Space when the Premises
is repaired, and the other reasonable costs and expenses relating to such
temporary relocation (ii) the square footage of the Interim Space shall not be
less than ninety percent (90%) of the square footage of the Premises unless
Tenant agrees otherwise, (iii) the Interim Space shall be reasonably suitable
for the conduct and operation of Tenant's business, and (iv) upon occupancy of
the Interim Space, Tenant shall pay Landlord Base Rent and additional rent for
the Interim Space as set forth in this Lease, which shall be adjusted to reflect
the square footage of the Interim Space; however, in no event shall the Base
Rent and additional rent for the Interim Space exceed the Base Rent and
additional rent for the Premises. If Landlord exercises the foregoing option,
Tenant shall relocate from the Premises to the Interim Space within thirty (30)
days after receipt of Landlord's notice; and Tenant shall relocate from the
Interim Space to the reconstructed Premises within thirty (30) days after
Landlord notifies Tenant that the repair of the Premises has been substantially
completed.
15. MACHINES AND EQUIPMENT; ALTERATIONS AND ADDITIONS: REMOVAL OF FIXTURES.
15.1 Floor Load, and Excessive Noise. Vibration, and Electrical Usage.
Tenant shall not, without Landlord's prior consent, place a load upon the floor
of the Premises which exceeds the maximum live load per square foot which
Landlord (or Landlord's architect or engineer) determines (in its good faith
professional judgment) is appropriate for the Building. Tenant will notify
Landlord prior to the installation of any high-density filing systems, or any
unusually heavy equipment or machinery, in the Premises, and all such
installations shall be subject to Landlord's consent, not to be unreasonably
withheld or delayed. Business machines, mechanical equipment and materials
belonging to Tenant which cause vibration, noise, cold, heat or fumes that may
be transmitted to the Building or to any other leased space therein to such a
degree as to be objectionable to Landlord or to any other tenant in the Building
shall be placed, maintained, isolated, stored and/or vented by Tenant (at its
expense) so as to absorb and prevent such vibration, noise, cold, heat or fumes.
Landlord shall not be required to supply electrical current for equipment that
requires more than 110 volts, and Tenant will not install or operate in the
Premises any electrical or other equipment whose electrical energy consumption
exceeds that of normal office use, without first obtaining the prior consent in
writing of Landlord, who may condition such consent upon the payment by Tenant
of additional rent to compensate (at cost) for excess consumption of water
and/or electricity, excess
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wiring and other similar requirements. All changes, replacements or additions to
any base building Systems which may be necessitated by the installation and
operation of such electrical equipment and/or machinery by Tenant shall be
subject to Landlord's consent, and shall be performed under Landlord's direction
at Tenant's expense.
15.2 Alterations - Generally.
15.2.1 Tenant may make cosmetic alterations (i.e., repainting,
replacement of carpeting, installation of wall covering, etc.) to the Premises
without Landlord's consent, provided that Landlord is notified in writing prior
to commencement of any such cosmetic alterations and the same do not diminish
the value of the Premises in more than a de minimis amount. All other
alterations, additions and improvements proposed to be made to the Premises by
Tenant (hereinafter, "Alterations") shall be subject to Landlord's prior written
approval, in accordance with the standards hereafter set forth. In the case of
Alterations which are structural or visible from the exterior of the Premises,
such approval may be withheld or conditioned in Landlord's sole, absolute, and
subjective discretion. In the case of all other Alterations, such consent may
not be unreasonably withheld, conditioned, or delayed. Without limitation, it
shall not be unreasonable for Landlord to deny its consent to any Alterations
(a) which would diminish the value of the leasehold improvements to the Premises
in more than a de minimis amount, (b) which would adversely affect any Building
Systems, (c) which would adversely affect the structural elements of the
Building, (d) which would impose on Landlord any special maintenance, repair, or
replacement obligations not within the scope of those expressly provided for
herein, or (e) which would constitute "non-standard office improvements",
meaning improvements which are unusual or extraordinary for standard office
usage, including curved walls, circular rooms, windowless office areas, vault
areas, areas involving special electrical or fire suppression systems, etc. The
foregoing notwithstanding, (i) Landlord will not withhold its consent to a
proposed Alteration solely on the basis described in clause (d) if Tenant
agrees, at the time of its request for approval or notice of such Alterations,
to pay all costs associated with Landlord's meeting the additional obligations
described in clause (d), and (ii) Landlord will not withhold its consent to a
proposed Alteration solely on the basis described in clause (e) if Tenant
agrees, at the time of its request for approval or notice of such Alterations,
to remove such Alteration(s) and restore the Premises to its condition prior to
the installation thereof, at Tenant's sole expense, upon the expiration or
sooner termination of this Lease. All Alterations (including without limitation
cosmetic alterations) shall be made (1) at Tenant's sole expense, (2) according
to plans and specifications approved in writing by Landlord (to the extent
Landlord's consent is required), (3) in compliance with all applicable laws, (4)
by a licensed contractor, and (5) in a good and workmanlike manner conforming in
quality and design with the Premises existing as of the Commencement Date. In
addition, except for any alterations which Landlord requires Tenant to remove as
a pre-condition to the installation thereof, and except for Tenant's movable
office partitions, furniture, and trade fixtures, all Alterations (including
without limitation cosmetic alterations) made by Tenant shall at once become a
part of the realty and shall be surrendered with the Premises.
15.2.2 Landlord shall reimburse to Tenant up to $33,375 toward
Tenant's costs of making cosmetic alterations or other Alterations, as
aforesaid, to the Premises, at any time during the first Lease Year hereof (the
"Landlord's Contribution"). Landlord will make such payments of
25
Landlord's Contribution to Tenant within ten (10) business days of presentation
to Landlord of (i) itemized invoices or such other evidence of Tenant's costs
and expenses as Landlord may reasonably require, (ii) or evidence that such work
has been completed and/or any materials delivered to and installed in the
Premises, and (iii) confirmation that the applicable contractors or suppliers
have been or, with receipt of the payment sought, will be paid in full. All work
will be performed in compliance with the requirements of Sections 15.2.1 above,
and 15.4, below.
15.3 Removal of Alterations. Upon the expiration or sooner termination of
the Lease Term, Tenant shall, at Tenant's expense, diligently remove all
Alterations made by Tenant after the Commencement Date and designated by
Landlord or agreed to by Tenant, as the case may be, to be removed at the time
of Landlord's approval or Tenant's request for approval or notice thereof.
Tenant shall repair any damage to the Premises caused by such removal and,
except as otherwise provided herein, restore the applicable portion of the
Premises to its condition prior to such Alteration. Tenant shall remove all of
its movable property and trade fixtures at the expiration or earlier termination
of this Lease, and shall pay to Landlord the cost of repairing any damage to the
Premises or Building resulting from such removal. In no event shall Tenant
remove any portion of Landlord's Work except in connection with a permitted
Alteration hereunder. All items of Tenant's movable property, trade fixtures and
personal property that are not removed from the Premises or the Building by
Tenant at the termination of this Lease (or at any time when Landlord has the
right of reentry due to a Tenant default) shall be deemed abandoned and become
the exclusive property of Landlord, without further notice to or demand upon
Tenant. Tenant's obligations under these Sections 15.2 and 15.3 shall survive
the expiration or termination of this Lease.
15.4 Additional Covenants Regarding Alterations.
15.4.1 Tenant shall be responsible for and shall pay when due all
costs associated with the preparation of plans and the performance of
Alterations, and the same shall be performed in a lien-free, first-class, and
good and workmanlike manner, and in accordance with applicable codes and
requirements, including the requirements of the Americans with Disabilities Act
("ADA") (provided that, to the extent the Premises are not, as of the date
hereof, in compliance with the foregoing requirements of the ADA, Landlord shall
be responsible for correcting such noncompliance in accordance with applicable
law). Failure by Tenant to pay the costs associated with Alterations on a timely
basis so as to avoid the assertion of any statutory and/or common law lien
against the Premises or the Building shall constitute a default by Tenant for
all purposes of this Lease. Unless otherwise approved by Landlord, Tenant shall
only use new, first-class materials in connection with Alterations. All
contractors and subcontractors performing any work on behalf of Tenant within
the Premises shall be subject to Landlord's approval, licensed to do business in
jurisdiction within which the Premises is located, and for work involving a cost
in excess of $10,000, shall be bonded (or at Landlord's sole option, bondable).
15.4.2 Tenant shall ensure that all contractors and subcontractors
performing Alterations are insured in amounts required by law and which are
reasonable and customary in
26
accordance with prevailing industry standards and consistent with the nature and
amount of work to be performed. Alterations may not commence, nor may Tenant
permit its contractors and subcontractors to commence or continue any such work,
until all required insurance has been obtained, and, if Landlord requests, until
certificates of such insurance have been delivered to Landlord. Such insurance
policies shall name the Landlord, Landlord's property manager, and Landlord's
mortgagee(s) as additional insureds. Such certificates of insurance shall
provide that no change or cancellation of such insurance coverage shall be
undertaken without thirty (30) days' prior written notice to Landlord. In the
event Tenant employs a contractor or subcontractor to perform all or part of any
Alterations, Tenant shall purchase, or cause its contractor to carry, General
Contractor's and Subcontractor's Required Minimum Coverages and Limits of
Liability as follows, which coverages shall be in amounts required by law and
reasonably acceptable to Landlord and in addition to any and all insurance
required to be procured by Tenant pursuant to the terms of this Lease: Worker's
Compensation, Employer's Liability Insurance, any insurance required by any
Employee Benefit Act (or similar statute), Comprehensive General Liability
Insurance (including Contractor's Protective Liability), Comprehensive
Automotive Liability Insurance, and Builder's Risk insurance.
15.4.3 Tenant agrees that Landlord and its agents and managers will
have the right to inspect any Alterations made by Tenant's contractor(s) and
subcontractor(s), and Tenant agrees to cooperate with Landlord to facilitate
such inspections. In the performance of Alterations in accordance with this
Lease, Tenant shall cause its contractor to use reasonable and diligent efforts
not to interfere with ongoing operations in the Building. Tenant shall cause its
contractor(s) to keep all construction areas clean and free of trash and debris
and shall otherwise comply with any other reasonable rules and regulations
established by Landlord with regard to construction activities within the
Building. Tenant's construction contract shall indemnify Tenant and Landlord
from damages, losses and expenses associated with the acts and omissions of
Tenant's contractor, its agents, employees and subcontractors. To the extent
that any Alterations involve construction work which affects any exterior
portions of the Building or Common Areas, Landlord may impose additional
requirements as a condition of its approval of such Alterations to ensure that
Tenant restores all affected areas of the Building's exterior and/or common
areas to their original condition upon completion and otherwise protects and
restores all affected work areas within the Building (including any portions of
the Common Areas of the Building) utilized or affected in performing such
Alterations.
15.4.4 Tenant shall provide to Landlord copies of all applications
for permits, copies of all governmental inspection reports and/or certificates,
and any and all notices or violations communicated to Tenant or its contractors
by applicable governmental authorities, promptly upon receipt and/or submission
thereof, as the case may be. Tenant agrees to comply (or to cause its
contractors to comply) with all applicable federal, state and local laws,
regulations and ordinances in the performance of Alterations, and to promptly
rectify any violations of such laws caused by the acts or omission of Tenant,
its employees, agents and/or contractors, and Tenant shall be responsible for
any non-compliance by Tenant or its agents, employees and contractors. Tenant
and its contractor performing Alterations shall (a) provide copies of warranties
for Alterations and the materials and equipment which are incorporated into the
Building and Premises in connection
27
therewith. (b) provide to Landlord all operating and maintenance manuals for all
equipment and materials incorporated into the Building and/or Premises as part
of any Alterations, and (c) either assign to Landlord, or enforce on Landlord's
behalf, all such warranties to the extent repairs and/or maintenance on
warranted items would be covered by such warranties and are otherwise Landlord's
responsibility under this Lease.
16. ACCEPTANCE OF PREMISES.
Subject to the terms of Section 1.10, above, Landlord shall tender, and
Tenant shall accept possession of the Premises in strictly an "as-is" condition.
Tenant's occupancy of the Premises on the Commencement Date shall constitute
good and sufficient tender of possession, and satisfy all delivery of possession
requirements set forth in this Lease.
17. TENANT IMPROVEMENTS.
Any initial improvements to be performed by Tenant to the Premises shall
be treated as Alterations to the Premises and thus governed by Article 15,
above.
18. ACCESS.
Tenant shall permit Landlord and its agents to enter the Premises at all
reasonable times and (except in cases of Emergency, as defined herein) upon
reasonable prior notice, not to exceed two (2) business days: to inspect the
same; to show the Premises to prospective tenants, or interested parties such as
prospective lenders and purchasers; to exercise its rights under Section 48; to
clean, repair, alter or improve the Premises or the Building; to discharge
Tenant's obligations when Tenant has failed to do so within any applicable grace
period provided for herein; to post notices of non-responsibility and similar
notices and "For Sale" signs and to place "For Lease" signs upon or adjacent to
the Building or the Premises at any time within the twelve (12) month period
prior to the expiration of the Lease Term or at any time after the premises has
been vacated by Tenant; or for any other legitimate business purpose. Tenant
shall permit Landlord and its agents to enter the Premises at any time, and
without notice, in the event of an Emergency. When reasonably necessary and so
long as Tenant shall continue to have reasonable access to the Premises,
Landlord may temporarily close entrances, doors, corridors, elevators or other
facilities without liability to Tenant by reason of such closure. Landlord, in
the exercise of all of its rights under this Section 18, shall use commercially
reasonable efforts to minimize disruption of Tenant's use and occupancy of the
Premises.
19. MUTUAL WAIVER OF CLAIMS AND SUBROGATION.
19.1 Tenant. Notwithstanding anything to the contrary in this Lease,
whether the loss or damage is due to the negligence of Landlord or Landlord's
agents or employees, or any other cause, Tenant hereby releases Landlord and
Landlord's agents and employees from responsibility for and
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waives its entire claim of recovery for (i) any and all loss or damage to the
personal property of Tenant located in the Building, including, without
limitation, the Building itself and such property as may be attached to the
Building itself, arising out of any of the perils which are covered by Tenant's
property insurance policy, with extended coverage endorsements which Tenant is
required to obtain under the applicable provisions of this Lease, whether or not
actually obtained, or (ii) loss resulting from business interruption or loss of
rental income, at the Premises, arising out of any of the perils which may be
covered by the business interruption or by the loss of rental income insurance
policy held by Tenant.
19.2 Landlord. Notwithstanding anything to the contrary in this Lease,
whether the loss or damage is due to the negligence of Tenant or Tenant's agents
or employees, or any other cause, Landlord hereby releases Tenant and Tenant's
agents and employees from responsibility for and waives its entire claim of
recovery for any and all loss or damage to the personal property of Landlord
located in the Building, including, without limitation, the Building itself and
such property as may be attached to the Building itself, arising out of any of
the perils which are covered by Landlord's property insurance policy which
Landlord is required to obtain under the applicable provisions of this Lease,
whether or not actually obtained.
19.3 Carriers. Landlord and Tenant shall each cause its respective
insurance carrier(s) to consent to such waiver of all rights of subrogation
against the other, and to issue an endorsement to all policies of insurance
obtained by such party confirming that the foregoing release and waiver will not
invalidate such policies. To the extent such mutual waiver is prohibited by the
terms of either Landlord's or Tenant's respective insurance policies, the party
so affected such promptly notify the other and shall attempt to assure that each
of the parties' insurance coverage will be consistent with the terms of this
Section 19.
20. INDEMNIFICATION.
20.1 Tenant's Indemnity. Tenant shall indemnify and hold harmless
Landlord, its agents, employees, officers, directors, partners and shareholders
from and against any and all third party liabilities, judgments, demands, causes
of action, claims, losses, damages, costs and expenses, including reasonable
attorneys' fees and costs, asserted against Landlord by third parties or
sustained in connection with any third party claims for injury or death to
persons or damage to property against Landlord, by third parties and arising out
of the use, occupancy, conduct, or operation of the Premises by, or the willful
misconduct or negligence of, Tenant, its officers, contractors, licensees,
agents, servants, employees, or (while within the Premises) its guests or
invitees, or caused by any failure of Tenant to comply with the terms of this
Lease. This indemnification shall survive termination of this Lease. This
provision shall not be construed to make Tenant responsible for loss, damage,
liability or expense resulting from injuries or death to third parties or to the
property of third parties to the extent caused by the negligence of Landlord, or
its officers, contractors, licensees, agents, employees or invitees.
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20.2 Landlord's Indemnity. Landlord shall indemnify and hold harmless
Tenant, its agents, employees, officers, directors, partners and shareholders
from and against any and all third party liabilities, judgments, demands, causes
of action, claims, losses, damages, costs and expenses, including reasonable
attorneys' fees and costs, asserted against Tenant by third parties or sustained
by Tenant in connection with any third party claims for injury or death to
persons or damage to property, and arising out of the use, occupancy, conduct,
operation, or management of the Building by, or the willful misconduct or
negligence of, Landlord, its officers, contractors, licensees, agents, servants,
or employees, or caused by any failure of Landlord to comply with the terms of
this Lease. This indemnification shall survive termination of this Lease. This
provision shall not be construed to make Landlord responsible for loss, damage,
liability or expense resulting from injuries or death to third parties or to the
property of third parties to the extent caused by the negligence of Tenant, or
its officers, contractors, licensees, agents, employees or invitees, or by the
acts or omission of any other tenants or occupants of the Building.
21. ASSIGNMENT AND SUBLETTING.
21.1 Consent Required. Subject to the terms of this Article 21, Tenant
shall not assign, encumber, mortgage, pledge, license, hypothecate or otherwise
transfer the Premises or this Lease, or sublease all or any part of the
Premises, or permit the use or occupancy of the Premises by any party other than
Tenant, without the prior written consent of Landlord, which shall not be
unreasonably withheld, delayed or conditioned, as more fully set forth below.
21.2 Procedure.
21.2.1 Tenant must request Landlord's consent to any such assignment
or sublease in writing at least thirty (30) days prior to the commencement date
of the proposed sublease or assignment, which written request (a "Proposal
Notice") must include (1) the name and address of the proposed assignee or
subtenant, (2) the nature and character of the business of the proposed assignee
or subtenant, (3) financial information (including financial statements) of the
proposed assignee or subtenant, (4) the proposed effective date of the
assignment or sublease, which shall be not less than thirty (30) days
thereafter, and (5) a copy of the proposed sublease or assignment agreement.
Tenant shall also provide any additional information Landlord reasonably
requests regarding such proposed assignment or subletting. Within thirty (30)
days after Landlord receives Tenant's Proposal Notice (with all required
information included), but subject to Section 21.5, below, Landlord shall have
the option (i) to grant its consent to such proposed assignment or subletting,
or (ii) to deny its consent to such proposed assignment or subletting on a
reasonable basis. If Landlord does not exercise one of the above options (or the
termination right set forth in Section 21.5, below) within thirty (30) days
after Landlord receives such Proposal Notice, then Tenant may assign or sublease
the Premises upon the terms stated in the Proposal Notice.
21.2.2 Section 21.2.1 and 21.5, below, to the contrary
notwithstanding, Tenant shall have the right to sublet up to the lesser of 1,000
square feet or twenty-five percent (25%) of the net rentable area of the
Premises (in the aggregate), for periods not in excess of one (1) year, before a
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proposed sublease triggers Landlord's right of termination under clause 21.5,
but any such sublease(s) shall nevertheless be subject to Landlord's approval,
which shall not be unreasonably withheld or delayed as provided herein.
21.2.3 Without limitation, it shall not be unreasonable for Landlord
to deny its consent to any proposed assignment or sublease if the proposed
assignee or subtenant fails to satisfy any one or more of the following
criteria: (1) if the proposed assignee or sublessee has a net worth less than
that of the Tenant as of the date of execution of this Lease, or it otherwise
appears that the proposed assignee or subtenant may be unable to meet its
financial and other obligations under this Lease after such assignment or
sublease; (2) if the proposed assignee or subtenant proposes to use the Premises
for a purpose which is not a general office or administrative use; (3) if the
proposed assignee or subtenant has a history of landlord/tenant, debtor/creditor
or other contractual problems (such as, but not limited to, defaults, evictions,
enforcement litigation or other disputes) with Landlord, other landlords and/or
creditors or other contracting parties; (4) if the proposed assignee or
subtenant is an existing tenant, or the affiliate of an existing tenant, in any
building owned or operated by Landlord or any affiliate of Landlord; and/or (5)
if the space is one as to which Landlord has a right of termination under
Section 21.5, the proposed sublease involves, in Landlord's reasonable judgment,
a portion of the Premises which is not independently leasable space (which shall
be understood to mean that, in order to satisfy this criteria, the proposed
sublease space must have a proportion of windowed offices relative to the
Rentable Area thereof which is comparable to the floor as a whole, and cannot
lack reasonable means of ingress, egress or access to the Common Areas, common
facilities and/or core areas of the Building located on such floor of the
Building, such as access to elevators, bathrooms, telephone and electrical
closets, etc.) (any space meeting such criteria being referred to herein as
"Independently Leasable Space").
21.3 Conditions. Any subleases and/or assignments hereunder are also
subject to all of the following terms and conditions:
21.3.1 If Landlord approves an assignment or sublease as herein
provided, Tenant shall pay to Landlord, as additional rent due under this Lease,
(i) in the case of an assignment, all sums received by Tenant in consideration
of such assignment, calculated after Tenant has recovered in full from such
consideration its "Transaction Expenses" (as hereafter defined), and (ii) in the
case of a sublease, the amount, if any, by which the rent, any additional rent
and any other sums payable by the subtenant to Tenant under such sublease,
exceeds that portion of the Base Rent plus Costs of Electricity, Expense
Increases and Tax Increases payable by Tenant hereunder which is allocable to
the portion of the Premises which is the subject of such sublease, calculated
after Tenant has recovered in full its Transaction Expenses from such net
amount. The term "Transaction Expenses" shall mean all reasonable and actual
out-of-pocket expenses incurred by Tenant in procuring such assignment or
sublease, including broker fees and legal fees (if any) paid by Tenant, any
improvements which Tenant makes to the applicable portion of the Premises at
Tenant's expense in connection with such assignment or sublease, and any buy-out
of the assignee's or sublessee's existing lease paid for by Tenant as a part of
such transaction. The foregoing payments shall be made on not less than a
monthly basis by Tenant (in the case of subleases) and in all cases within
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ten (10) business days after Tenant receives the applicable consideration from
the assignee or subtenant.
21.3.2 No consent to any assignment or sublease shall constitute a
further waiver of the provisions of this section, and all subsequent assignments
or subleases may be made only with the prior written consent of Landlord. In no
event shall any consent by Landlord be construed to permit reassignment or
resubletting by a permitted assignee or sublessee.
21.3.3 The assignee under any assignment of this Lease shall be
fully (and, at landlord's option, directly) liable for all of the obligations of
"Tenant" under this Lease, on a joint and several basis with Tenant. Tenant
shall nevertheless remain fully liable to Landlord for all Lease obligations,
including those accruing after the effective date of such assignment.
21.3.4 Any sublease or assignment shall be subject to the condition
that the sublessee or assignee thereunder shall be bound by all of the terms,
covenants and conditions of this Lease (in the case of a sublease, insofar as
such terms, covenants and conditions relate to the portion of the Premises
subleased and/or the operations and conduct of business by the sublessee).
21.3.5 Without limitation, any and all guaranties of this Lease
shall be unaffected by such sublease and assignment, and shall remain in full
force and effect for all purposes.
21.3.6 Any assignment or sublease without Landlord's prior written
consent shall be void, and shall, at the option of the Landlord, constitute a
default under this Lease.
21.3.7 Tenant shall pay to Landlord Landlord's reasonable attorneys
fees and out-of-pocket expenses incurred in connection with Landlord's review of
such sublease or assignment (if any).
21.4 Affiliated Entity; Sale of Business.
21.4.1 Notwithstanding anything to the contrary in this Lease, so
long as such transfer is not effectuated as part of a transaction or series of
transfers orchestrated in order to effect a transfer of this Lease (or Tenant's
interest herein) in isolation to Tenant's other leasehold interests and assets,
Landlord's shall not unreasonably withhold its consent to any sublease,
assignment or other transfer of this Lease to any other entity which (i)
controls or is controlled by Tenant, or (ii) is controlled by Tenant's parent
company, or (iii) which purchases all or substantially all of the assets of
Tenant, or (iv) which purchases all or substantially all of the stock of Tenant
or (v) which merges with Tenant pursuant to a valid statutory merger; provided,
that (1) the assignee or sublessee is financially able to meet all of its
obligations under the proposed assignment or sublease, and (2) in such event,
(a) except in cases of statutory merger, in which case the surviving entity in
the merger shall be liable as the Tenant under this Lease, Tenant shall continue
to remain fully liable under the Lease, on a joint and several basis with the
assignee or acquiror of such assets or stock, (b) the terms of any guaranty of
this Lease shall remain in full force and effect, unmodified, and (c) following
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such sublease or assignment, Tenant shall continue to comply with all of its
obligations under this Lease, including with respect to its Permitted Use of the
Premises, as set forth in Section 4.1, above.
21.4.2 Tenant shall be required to give Landlord at least thirty
(30) days written notice in advance of any sublease or assignment within the
scope of Section 21.4.1, above. Any other transfer of fifty percent (50%) or
more of the ownership interests (including, without limitation, partnership
interests or stock) in Tenant or of operating control over Tenant (whether by
management agreement, stock sale or other means) shall be deemed to constitute
an assignment of this Lease, and shall be subject to Landlord's consent as
aforesaid.
21.4.3 Notwithstanding the last sentence of Section 21.4.1 to the
contrary, Landlord agrees that the offer and sale by Tenant (or any stockholder
of Tenant) of any stock pursuant to an effective registration statement filed
pursuant to the Securities Act of 1933 (including any initial public offering of
registered stock of the Tenant) or pursuant to and in accordance with the
securities laws of any foreign country governing publicly traded companies and
not in violation of U.S. law, shall not constitute an assignment of this Lease,
and shall not require the consent or approval of Landlord.
21.4.4 Tenant shall not transfer all or substantially all of its
assets to any person or entity unless either (i) this Lease is one of the assets
so transferred to such other person or entity, and the transferee assumes in
writing, for Landlord's benefit, the obligations of Tenant accruing hereunder
from and after the effective date of the transfer, or (ii) the transferee(s)
thereof otherwise delivers to Landlord a written assumption of Tenant's
obligations hereunder.
21.5. Right of Termination. Except for any assignment or sublease
permitted pursuant to Section 21.4, above, in the event of (i) a proposed
assignment of this Lease, (ii) a proposed sublease in excess of one (1) year
involving more than the lesser of (A) 1,000 square feet of rentable area, or (B)
twenty-five percent (25%) of the Premises, Landlord shall have the right, by
notice to Tenant delivered within fifteen (15) days after Landlord's receipt of
Tenant's Proposal Notice (and in lieu of the granting or denial of consent
provided for in Section 21.2, above), to terminate this Lease as to all of the
Premises (in the event of an assignment) or as to the subleased portion of the
Premises only (in the event of a sublease), for the balance of the Term. In the
event Landlord shall elect to terminate this Lease in connection with a proposed
assignment or sublease of this Lease as provided above in whole or in part (as
the case may be): (a) this Lease and the term hereof shall terminate (either as
to the Premises as a whole, or only as to the portion thereof which Tenant is
proposing to sublease, as the case may be) as of the later of (i) the proposed
effective date of such assignment or sublease, as set forth in Tenant's Proposal
Notice, or (ii) fifteen (15) days after the date Landlord received Tenant's
Proposal Notice; (b) Tenant shall be released from all liability under the Lease
(as to the Premises as a whole, in the case of an assignment, or as to the
terminated portion of the Premises only, in the case of a partial termination
due to sublease) with respect to the period after the date of termination (other
than obligations and indemnities of Tenant which accrued with respect to the
applicable portion of the Premises prior to the effective date of such
termination, which
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obligations shall expressly survive such termination or partial termination of
this Lease); (c) all Base Rent, Additional Rent and other charges shall be
prorated to the date of such termination, and appropriately adjusted if there is
only a partial termination; (d) upon such termination date, Tenant shall
surrender the Premises (or the applicable portion thereof) to Landlord in
accordance with Section 26 hereof; and (e) in the case of a partial termination
of this Lease, Landlord shall have the right to separate the portion of the
Premises being terminated from the balance of the Premises, including the
erection of a demising wall and, to the extent necessary under the
circumstances, the separation of any applicable Building Systems.
22. ADVERTISING.
22.1 Generally. Except as provided below, Tenant shall not display any
sign, graphics, notice, picture, or poster, or any advertising matter
whatsoever, anywhere in or about the Premises or the Building at places visible
from anywhere outside or at the entrance to the Premises without first obtaining
Landlord's written consent thereto, which Landlord may grant or withhold in its
sole discretion. All signage, including interior and exterior signage, shall be
at Tenant's sole expense, and subject to compliance with all applicable laws.
Tenant shall be responsible to maintain any permitted signs and remove the same
at Lease termination. In addition, upon the expiration or earlier of this Lease,
all exterior signs identifying Tenant shall be removed by Tenant at Tenant's
sole expense, and the affected portions of the Building shall be restored by
Tenant. If Tenant shall fail to maintain or remove its signs, as aforesaid,
Landlord may do so at Tenant's cost. Tenant shall be responsible to Landlord for
any damage caused by the installation, use, maintenance or removal of any such
signs.
22.2 Signage Program/Permitted Signage. Notwithstanding Section 22.1 to
the contrary, lobby and suite identification signage shall be permitted in
accordance with applicable legal requirements and the Landlord's overall signage
program for the Building, subject to Landlord's approval which shall not be
unreasonably withheld (in light of Landlord's overall signage program for the
Building). Generally, Tenant shall be permitted (at Tenant's expense) to install
a standard suite entry sign, and (if applicable) directory identification panels
on that portion of the Building's lobby directory located in the main lobby of
the Building (if any), commensurate with the relative square footage of the
Premises as compared to the square footage of the Building as a whole.
23. LIENS.
Tenant shall keep the Premises and the Building free from any liens
arising out of any work performed, materials ordered or obligations incurred by
or on behalf of Tenant, and Tenant hereby agrees to indemnify and hold Landlord,
its agents, employees, independent contractors, officers, directors, partners,
and shareholders harmless from any liability, cost or expense for such liens.
Tenant shall cause any such lien imposed to be released of record by payment or
posting of the proper bond acceptable to Landlord within thirty (30) days after
the earlier of notice of intent to impose the lien or written request by
Landlord. If Tenant fails to remove any lien within the
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prescribed thirty (30) day period, then Landlord may do so at Tenant's expense
and Tenant shall reimburse Landlord for such amount, including reasonable
attorneys' fees and costs.
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24. DEFAULT.
24.1 Tenant's Default. A default under this Lease by Tenant shall exist if
any of the following occurs:
24.1.1 If Tenant fails to pay Rent, additional rent or any other sum
required to be paid hereunder within five (5) days after written notice from
Landlord that such payment was due, but was not paid as of the due date
(provided, however, if Landlord has delivered two (2) such notices to Tenant in
any twelve (12) month period, or four (4) such notices over the Term of this
Lease, whichever first occurs, then any subsequent failure to pay Base Rent,
additional rent or any other sum required to be paid to Landlord hereunder on or
before the due date for such payment shall constitute a default by Tenant
without requirement of such five (5) day notice and opportunity to cure); or
24.1.2 If Tenant fails to perform any term, covenant or condition of
this Lease except those requiring the payment of money to Landlord as set forth
in Section 24.1.1 above, and Tenant fails to cure such breach within fifteen
(15) days after written notice from Landlord where such breach could reasonably
be cured within such fifteen (15) day period; provided, however, that where such
failure could not reasonably be cured within the fifteen (15) day period, Tenant
shall not be considered in default if it commences such performance within the
fifteen (15) day period and diligently thereafter prosecutes the same to
completion, such grace period not to exceed a maximum of sixty (60) days in the
aggregate. If any provisions of this Lease calls for a shorter or different
grace period than that set forth above, then such other provision shall control
over this provision. The foregoing notice and cure period notwithstanding,
Landlord may exercise its self-help rights hereunder (i.e., Landlord's right to
perform any obligation of Tenant which Tenant has failed to perform hereunder)
without any prior notice or upon such shorter notice as may be reasonable under
the circumstances in the event of any one or more of the following circumstances
is present: (i) there exists a reasonable risk of prosecution of the Landlord
unless such obligation is performed sooner than the stated cure period, (ii)
there exists an imminent possibility of danger to the health or safety of the
Landlord, the Tenant, Tenant's invitees, or any other occupants of, or visitors
to, the Building, unless such obligation is performed sooner than the stated
cure period, and/or (iii) the Tenant has failed to obtain insurance required by
this Lease, or such insurance has been canceled by the insurer without being
timely replaced by Tenant, as required herein.
24.1.3 If Tenant shall (i) make an assignment for the benefit of
creditors, (ii) acquiesce in a petition in any court in any bankruptcy,
reorganization, composition, extension or insolvency proceedings, (iii) seek,
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant and of all or any part of Tenant's property, (iv) file a
petition seeking an order for relief under the Bankruptcy Code, as now or
hereafter amended or supplemented, or by filing any petition under any other
present or future federal, state or other statute or law for the same or similar
36
relief, or (v) fail to win the dismissal, discontinuation or vacating of any
involuntary bankruptcy proceeding within sixty (60) days after such proceeding
is initiated.
24.2 Remedies. Upon a default, Landlord shall have the following remedies,
in addition to all other rights and remedies provided by law or otherwise
provided in this Lease, any one or more of which Landlord may resort
cumulatively, consecutively, or in the alternative:
24.2.1 Landlord may continue this Lease in full force and effect,
and this Lease shall continue in full force and effect as long as Landlord does
not terminate this Lease, and Landlord shall have the right to collect Base
Rent, additional rent and other charges when due.
24.2.2 Landlord may terminate this Lease, or may terminate Tenant's
right to possession of the Premises, at any time by giving written notice to
that effect, in which event Landlord may (but shall not be obligated to) relet
the Premises or any part thereof. Upon the giving of a notice of the termination
of this Lease, this Lease (and all of Tenant's rights hereunder) shall
immediately terminate, provided that, without limitation, Tenant's obligation to
pay Base Rent, Expense Increases and Tax Increases (as well as any damages
otherwise payable under this Section 24), shall survive any such termination and
shall not be extinguished thereby. Upon the giving of a notice of the
termination of Tenant's right of possession, all of Tenant's rights in and to
possession of the Premises shall terminate but this Lease shall continue subject
to the effect of this Section 24. Upon either such termination, Tenant shall
surrender and vacate the Premises in the condition required by Section 26, and
Landlord may re-enter and take possession of the Premises and all the remaining
improvements or property and eject Tenant or any of the Tenant's subtenants,
assignees or other person or persons claiming any right under or through Tenant
or eject some and not others or eject none. This Lease may also be terminated by
a judgment specifically providing for termination. Any termination under this
section shall not release Tenant from the payment of any sum then due Landlord
or from any claim for damages or Base Rent, additional rent or other sum
previously accrued or thereafter accruing against Tenant, all of which shall
expressly survive such termination. Upon such termination Tenant shall be liable
immediately to Landlord for all costs Landlord incurs in attempting to relet the
Premises or any part thereof, including, without limitation, broker's
commissions, expenses of cleaning and redecorating the Premises required by the
reletting and like costs. Reletting may be for a period shorter or longer than
the remaining Lease Term. No act by Landlord other than giving written notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease shall not constitute a constructive or
other termination of Tenant's right to possession or of this Lease, either of
which may be effected solely by an express written notice from Landlord to
Tenant. On termination, Landlord has the right to recover from Tenant as
damages:
(a) The worth at the time of award of unpaid Base Rent,
additional rent and other sums due and payable which had been earned at the time
of termination; plus
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(b) The worth at the time of award of the amount by which the
unpaid Base Rent, additional rent and other sums due and payable which would
have been payable after termination until the time of award exceeds the amount
of such rent loss that Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of award of the amount by which the
unpaid Base Rent, additional rent or other sums due and payable for the balance
of the Lease Term after the time of award exceeds the amount of such rent loss
that Tenant proves could be reasonably avoided; plus
(d) Any other amount necessary which is to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which, in the ordinary course of things, would
be likely to result therefrom, including, without limitation, any costs or
expenses incurred by Landlord: (i) in retaking possession of the Premises; (ii)
in maintaining, repairing, preserving, restoring, replacing, cleaning, altering
or rehabilitating the Premises or a portion thereof, including such acts for
reletting to a new tenant or tenants; (iii) for leasing commissions; or (iv) for
any other costs necessary or appropriate to relet the Premises; plus
(e) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by the laws of
the Commonwealth of Massachusetts.
The "worth at the time of award" of the amounts referred to in
Sections 24.2.2(a) and (b) is computed by allowing interest at the Default Rate
on the unpaid rent and other sums due and payable from the termination date
through the date of award. In lieu of the amounts recoverable in a lump sum by
Landlord pursuant to clauses (b) and (c) of this Section 24.2.2, above, but in
addition to the amounts specified in clauses (a), (d), and (e) (or any other
portion of this Section 24), Landlord may, at its sole election, recover
"Indemnity Payments," as defined hereinbelow, from Tenant. For purposes of this
Lease "Indemnity Payments" means an amount equal to the Base Rent, additional
rent and other payments provided for in this Lease which would have become due
and owing thereunder from time to time during the unexpired Lease Term after the
effective date of the termination, but for such termination, less the Base Rent,
additional rent and other payments, if any, actually collected by Landlord and
allocable to the Premises. If Landlord elects to pursue Indemnity Payments in
lieu of the amount recoverable in a lump sum by Landlord under clauses (b) and
(c), above, Tenant shall, on demand, make Indemnity Payments monthly, and
Landlord may xxx for all Indemnity Payments at any time after they accrue,
either monthly, or at less frequent intervals. Tenant further agrees that
Landlord may bring suit for Indemnity Payments at or after the end of the Lease
Term as originally contemplated under this Lease, and Tenant agrees that, in
such event, Landlord's cause of action to recover the Indemnity Payments shall
be deemed to have accrued on the last day of the Lease Term as originally
contemplated. In seeking any new tenant for the Premises, Landlord shall be
entitled to grant any concessions it deems reasonably necessary. In no event
shall Tenant be entitled to any excess of any rental obtained by reletting over
38
and above the rental herein reserved. Tenant waives redemption or relief from
forfeiture under any other present or future law, in the event Tenant is evicted
or Landlord takes possession of the Premises by reason of any default of Tenant
hereunder.
24.2.3 Landlord may, with or without terminating this Lease,
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Tenant, or, as otherwise provided in this
Lease, shall be deemed abandoned by Tenant, and may be disposed of by Landlord
at Tenant's expense and free from any claim by Tenant or anyone claiming by,
through or under Tenant. No re-entry or taking possession of the Premises by
Landlord pursuant to this Section shall be construed as an election to terminate
this Lease unless a written notice of such intention is given to Tenant.
24.2.4 Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does hereby
specifically waive and surrender any and all rights and privileges, so far as is
permitted by law, which Tenant and all such persons might otherwise have under
any present or future law (1) to the service of any notice to quit or of
Landlord's intention to re-enter or to institute legal proceedings, which notice
may otherwise be required to be given, except the foregoing shall not waive any
notices required under Section 24.1, above (if any); (2) to redeem re-enter or
repossess the Premises after Tenant's right of possession has been terminated by
Landlord; (3) to restore the operation of this Lease, with respect to any
dispossession of Tenant by judgment or warrant of any court or judge, or any
re-entry by Landlord, or any expiration or termination of this Lease, whether
such dispossession, re-entry, expiration or termination shall be by operation of
law or pursuant to the provisions of this Lease, or (4) to the benefit of any
law which exempts property from liability for debt or for distress for rent.
25. SUBORDINATION.
25.1 Subordination. Subject to Section 25.2, below, this Lease is and
shall at all times be and remain subject and subordinate to the lien of any
mortgage, deed of trust, ground lease or underlying lease now or hereafter in
force against the Premises, and to all advances made or hereafter to be made
upon the security thereof. Although the foregoing subordination shall be self
effectuating, Tenant shall execute and return to Landlord any documentation
requested by Landlord consistent with this Section 25 in order to confirm the
foregoing subordination, within five (5) business days after Landlord's written
request. If Tenant fails to provide Landlord with such subordination documents
within five (5) business days after Landlord's written request, the same shall
constitute a default by Tenant hereunder without requirement of any further
notice or right to cure. In the event any proceedings are brought for
foreclosure, or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by the Landlord covering the Premises, Tenant
shall attorn to the purchaser at any such foreclosure, or to the grantee of a
deed in lieu of foreclosure, and recognize such purchaser or grantee as the
Landlord under this Lease, provided such purchaser assumes, either expressly or
by operation of law, the obligations of "Landlord" arising
39
under this Lease after the date title to the Land and Building is transferred to
such purchaser or grantee. Tenant agrees that no mortgagee or successor to such
mortgagee shall be (i) bound by any payment of Rent or additional rent for more
than one (1) month in advance, (ii) bound by any amendment or modification of
this Lease made without the consent of Landlord's mortgagee or such successor in
interest, (iii) liable for damages for any breach, act or omission of any prior
landlord, (iv) bound to effect or pay for any construction for Tenant's
occupancy, (v) subject to any claim of offset or defenses that Tenant may have
against any prior landlord and which have accrued prior to the date that such
mortgagee or successor takes legal title to the Land and Building, or (vi)
liable for the return of any security deposit, unless such security deposit has
been physically received by such mortgagee. Any such mortgagee shall have the
right, at any time, to subordinate to this Lease any instrument to which this
Lease is otherwise subordinated by operation of this Section 25.
25.2 Notwithstanding Section 25.1, above, to the contrary, Landlord agrees
that the subordination of this Lease to any future mortgage (or ground lease)
shall be conditioned upon the delivery to Tenant of a "Subordination,
Non-Disturbance and Attornment Agreement" ("SNDA") from such future mortgagee
(or ground lessor), in such commercially reasonable form of SNDA which may be
required by such mortgagee (or ground lessor), and which shall provide, inter
alia, that so long as Tenant is not in default hereunder (beyond any applicable
notice and cure period) and attorns to such mortgagee (or ground lessor) or any
successor-in-title thereto due to a foreclosure or deed-in-lieu thereof (or a
termination of such ground lease), Tenant's rights under this Lease, including
its right of possession of the Premises, shall not be disturbed in the event of
a foreclosure of such mortgage or deed of trust (or a termination of such ground
lease). Landlord shall also use commercially reasonable efforts to obtain an
SNDA from its current mortgagee of the Property.
26. SURRENDER OF POSSESSION.
Upon expiration of the Lease Term, Tenant shall promptly and peacefully
surrender the Premises to Landlord, broom clean and free of all of its
furniture, movable fixtures and equipment and otherwise in as good condition as
when received by Tenant from Landlord or as thereafter improved, reasonable use
and wear and tear and damage by insured casualty excepted, all to the reasonable
satisfaction of Landlord. If the Premises are not surrendered as and when
aforesaid, and in accordance with the terms of this Lease, Tenant shall
indemnify Landlord against all claims, losses, costs, expenses (including
reasonable attorneys' fees) and liabilities resulting from the delay by Tenant
in so surrendering the same, including any claims made by any succeeding
occupant founded on such delay. This indemnification shall survive termination
of this Lease.
27. NON-WAIVER.
Waiver by Landlord of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant, or
condition(s), or any subsequent breach of the same or any other term, covenant
or condition of this Lease, other than the failure of Tenant to pay the
particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Rent.
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28. HOLDOVER.
28.1 Holdover - Generally. If Tenant shall, without the written consent of
Landlord, hold over after the expiration of the Lease Term (hereinafter, an
"unauthorized holdover"), Tenant shall be deemed to be a tenant at sufferance,
which tenancy may be terminated immediately by Landlord as provided by
applicable state law. During any such holdover tenancy, unless Landlord has
otherwise agreed in writing, Tenant agrees to pay to Landlord a per diem
occupancy charge equal to (A) five percent (5%) of the stated monthly Base Rent
for the last full month of the Lease Term then ending for each day of the first
month of such holdover (or 150% of such monthly Base Rent for the entire first
month), (B) six percent (6%) of the stated monthly Base Rent for the last full
month of the Lease Term then ending for each day of the second month of such
holdover (or 180% of such monthly Base Rent for the entire second month), (C)
seven percent (7%) of the stated monthly Base Rent for that last full month of
the Lease Term then ending for each day of such holdover after the first two (2)
months thereof (but not to exceed 200% of such monthly Rent for each such full
month), and (D) one hundred percent (100%) of the additional rent which would
have been payable by Tenant for the period of such holdover, calculated on a per
diem basis using the additional rent which had otherwise been payable by Tenant
for the last full month of the Lease Term then ending. Such payments shall be
made within five business (5) days after Landlord's demand, and in no event less
often than once per month (in arrears). In the case of a holdover which has been
consented to by Landlord, Tenant shall be deemed to be a month to month tenant
upon all of the terms and provisions of this Lease, except the monthly Base Rent
shall be as agreed by Landlord and Tenant with respect to such consented
holdover. Upon expiration of the Lease Term as provided herein, Tenant shall not
be entitled to any notice to quit, the usual notice to quit being hereby
expressly waived under such circumstances, and Tenant shall surrender the
Premises on the last day of the Lease Term as provided in Section 26, above. The
foregoing described per diem occupancy charge is in addition to, and not in lieu
of, any other claims for damages which Landlord may have or assert against
Tenant in connection with any unauthorized holdover, including any claims
arising out of Tenant's indemnity under Section 26, above.
29. CONDEMNATION.
29.1 Definitions. The terms "eminent domain", "condemnation", and "taken",
and the like in this Section 29 include takings for public or quasi-public use,
and sales under threat of condemnation and private purchases in place of
condemnation by any authority authorized to exercise the power of eminent
domain. Any temporary taking for a period in excess of twelve (12) consecutive
months shall be deemed to be a permanent taking within the meaning of this
Section 29.
29.2 Taking. "Taking" shall mean and refer to the acquisition or taking of
property (or any right, title or interest therein) by any governmental or
quasi-governmental authority acting under power of condemnation or eminent
domain, and shall encompass contested as well as uncontested takings as long as
initiated by the applicable governmental or quasi-governmental authority. If the
whole of the Premises is temporarily taken for a period in excess of thirty (30)
days, or is
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permanently taken, in either case by virtue of a Taking, this Lease shall
automatically terminate as of the date title vests in the condemning authority,
and Tenant shall pay all Base Rent, additional rent, and other payments up to
that date. If (a) twenty percent (20%) or more of the Premises is permanently
taken by virtue of a Taking, or (b) in the case of a Taking of less than twenty
percent (20%) of the Premises, Tenant is unable to make reasonable use of the
balance of the Premises remaining after the Taking, as determined by Tenant in
its reasonable, good faith discretion, or (c) access to the Building or Premises
by Tenant is, by virtue of a Taking, permanently denied, or (d) if free parking
is provided for under this Lease, the parking ratio for the Building is, by
virtue of a Taking of any parking areas serving the Building, permanently
reduced to a ratio which fails to meet applicable code requirements after taking
into account any portion of the Building taken and any reasonable substitute
parking provided by Landlord in lieu of the parking areas so taken, then
Landlord and Tenant shall each have the right (to be exercised by written notice
to the other within sixty (60) days after receipt of notice of said taking) to
terminate this Lease effective upon the date when possession of the applicable
portion of the Property is taken thereunder pursuant to such Taking. If neither
party elects to terminate this Lease, as aforesaid, then Landlord shall
diligently, and within a reasonable time, after title vests in the condemning
authority, repair and restore, at Landlord's expense, the portion not taken so
as to render same into an architectural whole to the extent reasonably
practicable, and, if any portion of the Premises is taken, thereafter the Base
Rent (and Tenant's Share) shall be reduced (on a per square foot basis) in
proportion to the portion of the Premises taken. If there is a temporary Taking
involving the Premises or Building, or if a Taking of other portions of the
Building or common areas does not deny Tenant access to the Building and
Premises, or if less than twenty percent (20%) of the Premises is permanently
taken by a Taking and Tenant is able to make reasonable use of the balance of
the Premises as determined by Tenant in its reasonable good faith discretion,
then this Lease shall not terminate, and Landlord shall, as soon as reasonably
practicable thereafter, repair and restore, at its own expense, the portion not
taken so as to render same into an architectural whole to the fullest extent
reasonably practicable. If any portion of the Premises was permanently taken,
then the Base Rent (and Tenant's Share) shall be reduced (on a per square foot
basis) in proportion to the portion of the Premises taken, commencing on the
date Tenant is deprived of the use of such portion of the Premises. If any
portion of the Premises was temporarily taken, then the Base Rent (and Tenant's
Share) shall be reduced (on a per square foot basis) in proportion to the
portion of the Premises taken for the period of such temporary taking, that is,
from the date upon which Tenant is deprived of the use of such portion of the
Premises until the date Tenant is restored to the use of such portion of the
Premises.
29.3 Award. Landlord reserves all rights to damages to the Premises or
Building, or arising out of the loss of any leasehold interest in the Building
or Premises created hereby, arising in connection with any partial or entire
taking by eminent domain or condemnation. Tenant hereby assigns to Landlord any
right Tenant may have to such damages or award, and Tenant shall make no claim
against Landlord or the condemning authority for damages for termination of
Tenant's leasehold interest or for interference with Tenant's business as a
result of such taking. The foregoing notwithstanding, Tenant shall have the
right to claim and recover from the condemning authority separate compensation
for any loss which Tenant may incur for Tenant's moving expenses, business
interruption or taking of Tenant's personal property (but specifically excluding
any leasehold interest
42
in the Building or Premises) under the then applicable eminent domain code,
provided that Tenant shall not make any claim that will detract from or diminish
any award for which Landlord may make a claim.
29.4 Mortgagee Rights. Tenant acknowledges that Landlord's right to any
condemnation award may be subject to the rights of Landlord's mortgagee (if any)
in and to such award under the mortgage or deed of trust (if any) which
encumbers the Building and Premises. Accordingly, Landlord's obligation to
repair and restore, as set forth in Section 29, above, shall be subject to the
requirements of Landlord's mortgagee with regard thereto, and the time within
which such obligation must be satisfied shall be adjusted as reasonably
necessary to reflect delays occasioned by the exercise by the mortgagee of such
mortgagee's rights.
30. NOTICES.
All notices and demands which may be required or permitted to be given to
either party hereunder shall be in writing, and shall be delivered personally or
sent by United States certified mail, postage prepaid, return receipt requested,
or by Federal Express or other reputable overnight carrier, to the addresses set
out in Section 1.8, and to such other person or place as each party may from
time to time designate in a notice to the other. Notice shall be deemed given
upon the earlier of actual receipt or refusal of delivery.
31. MORTGAGEE PROTECTION.
Tenant agrees to give any mortgagee(s) and/or trust deed holder(s), by
registered mail, a copy of any notice of default served by Tenant upon the
Landlord, provided that prior to such notice Tenant has been notified in writing
(by way of notice of assignment of rents and leases, or otherwise) of the
addresses of such mortgagee(s) and/or trust deed holder(s). Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the mortgagee(s) and/or trust deed holder(s)
shall have an additional thirty (30) days within which to cure such default or
if such default cannot be cured within that time, then such additional time as
may be necessary if within such thirty (30) days any mortgagee and/or trust deed
holder(s) has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event Tenant shall not
have the right to pursue any claim against Landlord, such mortgagee and/or such
trust deed holder(s), including but not limited to any claim of actual or
constructive eviction, so long as such remedies are being so diligently pursued.
32. COSTS AND ATTORNEYS' FEES.
In any litigation between the parties arising out of this Lease, and in
connection with any consultations with counsel and other actions taken or
notices delivered, in relation to a default by any party to this Lease, the
prevailing party shall pay to the non-prevailing party all reasonable expenses
and court costs including attorneys' fees incurred by the non-prevailing party,
in
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preparation for and (if applicable) at trial, and on appeal. Such attorneys'
fees and costs shall be payable upon demand.
33. BROKERS.
Tenant represents and warrants to Landlord that neither it nor its
officers or agents nor anyone acting on its behalf has dealt with any real
estate broker other than Xxxxxxxx Xxxx Company and Xxxxxxx & Wakefield
("Broker") in the negotiating or making of this Lease, and Tenant agrees to
indemnify and hold Landlord, its agents, employees, partners, directors,
shareholders and independent contractors harmless from all liabilities, costs,
demands, judgments, settlements, claims and losses, including reasonable
attorneys fees and costs, incurred by Landlord in conjunction with any such
claim or claims of any broker or brokers other than Broker claiming to have
interested Tenant in the Building or Premises or claiming to have caused Tenant
to enter into this Lease. Landlord shall pay to Broker any leasing commission
due Broker in connection with this Lease in accordance with, and subject to the
terms, covenants and conditions of a separate written commission agreement
between Landlord and Broker.
34. LANDLORD'S LIABILITY AND DEFAULT.
34.1 No Personal Liability. Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the part
of the Landlord are made and intended not for the purpose of binding Landlord
personally or the assets of Landlord generally, but are made and intended to
bind only the Landlord's interest in the Premises and Building, as the same may,
from time to time, be encumbered, and no personal liability shall at any time be
asserted or enforceable against Landlord or its stockholders, officers or
partners or their respective heirs, legal representatives, successors and
assigns on account of the Lease or on account of any covenant, undertaking or
agreement of Landlord in this Lease. Accordingly, and notwithstanding any other
provisions of this Lease to the contrary, Tenant shall look solely to Landlord's
interest in the Premises and Building, and not to any other or separate business
or non-business assets of Landlord, or any partner, shareholder, member, officer
or representative of Landlord, for the satisfaction of any claim brought by
Tenant against Landlord, and if Landlord shall fail to perform any covenant,
term or condition of this Lease upon Landlord's part to be performed, and as a
consequence of such default Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only (i) out of the proceeds of sale
received upon levy against the right, title and interest of Landlord in the
Building and/or (ii) to the extent not encumbered by a secured creditor, out of
the rents or other incomes receivable by Landlord from the property of which the
Premises are a part. In addition, in no event shall Landlord be in default of
this Lease unless Tenant notifies Landlord of the precise nature of the alleged
breach by Landlord, and Landlord fails to cure such breach within fifteen (15)
days after the date of Landlord's receipt of such notice (provided that if the
alleged breach is of such a nature that it cannot reasonably be cured within
such fifteen (15) day period, then Landlord shall not be in default if Landlord
commences a cure within such fifteen (15) day period and diligently thereafter
prosecutes such cure to completion).
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34.2 Notice and Cure. In no event shall Landlord be in default of this
Lease unless Tenant notifies Landlord of the precise nature of the alleged
breach by Landlord, and Landlord fails to cure such breach within fifteen (15)
days after the date of Landlord's receipt of such notice (provided (i) that if
the alleged breach is of such a nature that it cannot reasonably be cured within
such fifteen (15) day period, then Landlord shall not be in default if Landlord
commences a cure within such fifteen (15) day period and diligently thereafter
prosecutes such cure to completion, not to exceed ninety (90) days in the
aggregate within which to complete such cure, and (ii) in the event of an
Emergency, such grace or cure period may be shortened as reasonably necessary
given the scope and nature of the Emergency, provided such shortened grace or
cure period shall only apply to permit the exercise of Tenant's self help rights
under Section 34.4, below.
34.3 Rights and Remedies - Generally. In the event of a default by
Landlord after expiration of applicable cure periods, Tenant shall be entitled
to pursue all rights and remedies available at law or in equity except as
limited by this Lease, and in all events excluding consequential damages. In
addition, in no event shall Tenant have any right to terminate this Lease by
virtue of any uncured default by Landlord, except under circumstances which
amount to a constructive eviction under applicable principles of the law of the
state within which the Premises is located (and with respect to which Tenant
satisfies the requirements for a constructive eviction claim under applicable
law). Tenant shall use commercially reasonable efforts to mitigate its damages
in the event of any default by Landlord hereunder.
34.4 Tenant's Right to Perform Landlord's Obligations After a Default by
Landlord. Among other remedies permitted to be exercised by Tenant upon a
default by Landlord of its obligations hereunder after expiration of applicable
cure periods, and without waiving or releasing Landlord from any such obligation
of Landlord, Tenant may, but shall not be obligated to, perform any such
obligation of Landlord, and to recover from Landlord the reasonable and actual
costs incurred by Tenant in performing such obligation, which shall be payable
within thirty (30) days after Tenant's written demand accompanied by reasonable
substantiation of the applicable costs. The foregoing right to perform
Landlord's obligations shall only apply after the requisite notice and
opportunity to cure has been afforded to Landlord (including any shortened cure
period permitted in cases of Emergency, as long as Tenant notifies Landlord of
the needed repair or other default as soon as possible after tenant learns of
its existence).
35. ESTOPPEL CERTIFICATES.
Tenant shall, from time to time, within ten (10) days of Landlord's
written request, execute, acknowledge and deliver to Landlord or its designee a
written statement stating: the date the Lease was executed and the date it
expires; the date the Tenant entered occupancy of the Premises; the amount of
Rent, additional rent and other charges due hereunder and the date to which such
amounts have been paid; that this Lease is in full force and effect and has not
been assigned, modified, supplemented or amended in any way (or specifying the
date and terms of any agreement so affecting this Lease); that this Lease
represents the entire agreement between the parties as to this
45
leasing (or identifying any such other agreements); that all conditions under
this Lease to be performed by the Landlord have been satisfied (or specifying
any such conditions that have not been satisfied); that all required
contributions by Landlord to Tenant on account of Tenant's improvements have
been received (or specifying any such contributions that have not been
received); that on the date of such certificate there are no existing defenses
or offset which the Tenant has against the enforcement of this Lease by the
Landlord (or specifying any such defenses or offsets); that no Rent has been
paid more than one (1) month in advance (or, if so, the amount thereof); that no
security has been deposited with Landlord (or, if so, the amount thereof);
and/or any other matters evidencing the status of the Lease as may be required
either by a lender or prospective lender with respect to any loan to Landlord
secured or to be secured by a deed of trust or mortgage against the Building, or
by a purchaser or prospective purchaser of the Building, Landlord's interest
therein or Landlord's ownership interests, which written statement shall be in
substantially the same form as Exhibit F attached hereto and made a part hereof
by this reference. It is intended that any such statement delivered pursuant to
this paragraph may be relied upon by a prospective purchaser of Landlord's
interest or a mortgagee of Landlord's interest or assignee of any mortgage upon
Landlord's interest in the Building. If Tenant fails to respond within ten (10)
days after receipt by Tenant of a written request by Landlord as herein
provided, Tenant shall be deemed to have given such certificate as above
provided without modification and shall be deemed to have admitted the accuracy
of any information supplied by Landlord to a prospective purchaser or mortgagee.
36. FINANCIAL STATEMENTS.
Within ten (10) days after Landlord's written request, which may be made
not more than once per fiscal year, (i) at such time as Tenant is a publicly
traded entity, Tenant shall deliver to Landlord Tenant's unaudited quarterly
financial statement for the most recent fiscal quarter and (to the extent not
previously delivered by Tenant to Landlord) Tenant's audited annual financial
statement for the most recent fiscal years and (ii) prior to the time Tenant is
a publicly traded company, Tenant will share with Landlord, to be capable of
being used and relied upon by Landlord's mortgage lender and any prospective
purchaser of the Building, the current audited annual and quarterly financial
condition of Tenant. In the case of (i), above, such quarterly and annual
financial statements shall include, at a minimum, a balance sheet, a profit and
loss statement and accompanying notes, as of the date prepared and in the case
of (ii), above, shall be in form and substance reasonably acceptable to Landlord
and Tenant. Tenant hereby agrees and Landlord hereby acknowledges that Tenant's
annual financial statements shall be completed within ninety (90) days after
Tenant's fiscal year-end and that Tenant's quarterly financial statements shall
be completed within thirty (30) days after Tenant's fiscal quarter-end. The
certified public accountant preparing such annual financial statements shall
provide an opinion that any such annual financial statements are complete and
materially accurate and that the same have been prepared in accordance with
generally accepted accounting principles consistently applied. To the extent
such financial statements are not publicly disclosed information, Landlord shall
keep all such information strictly confidential except that
46
Landlord shall be allowed to share it with potential mortgage lenders or
purchasers on a strictly confidential basis or as may be required by court or
administrative order.
37. TRANSFER OF LANDLORD'S INTEREST.
In the event of any transfer(s) of Landlord's interest in the Premises or
the Building, other than a transfer for security purposes only, the transferor
shall be automatically relieved of any and all obligations and liabilities on
the part of Landlord accruing from and after the date of such transfer, to the
extent such obligations are assumed by the transferee either expressly or by
operation of law, and Tenant agrees to attorn to the transferee.
38. RIGHT TO PERFORM.
If Tenant shall fail to make any payment or perform any other act on its
part to be performed hereunder, and such failure is not cured within fifteen
(15) days after written notice from Landlord (provided that (a) where such
failure cannot reasonably be cured within a fifteen (15) day period, Tenant
shall not be in default if it commences such performance promptly after
receiving Landlord's notice of Tenant's failure to perform and diligently
thereafter prosecutes the same to completion, such grace period not to exceed a
maximum of ninety (90) days in the aggregate, and (b) no such grace or cure
period (or such xxxxxxx xxxxx or cure period as is set forth below) shall be
required in the event of Emergency), Landlord may, but shall not be obligated
to, perform any such obligation of Tenant, and to recover from Tenant the
reasonable and actual costs incurred by Landlord in performing such obligation,
which shall be payable within thirty (30) days after Landlord's written demand
accompanied by reasonable substantiation of the applicable costs, as additional
rent hereunder. Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of the nonpayment of sums
due under this section as in the case of default by Tenant in the payment of
Rent. All sums paid by Landlord and all penalties, interest and costs in
connection therewith, shall be due and payable by Tenant together with interest
thereon at the Default Rate, which shall be calculated from the date incurred by
Landlord until the date of payment.
39. [INTENTIONALLY DELETED]
40. SALES AND AUCTIONS.
Tenant may not display or sell merchandise outside the exterior walls and
doorways of the Premises and may not use such areas for storage. Tenant agrees
not to install any exterior lighting, amplifiers or similar devices in or about
the Premises. Tenant shall not conduct or permit to be conducted any sale by
auction in, upon or from the Premises whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or pursuant
to any bankruptcy or other insolvency proceedings.
41. NO ACCESS TO ROOF.
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Except as and solely to the extent expressly set forth in this Lease,
Tenant shall have no right of access to the roof of the Premises or the Building
and shall not install, repair or replace any aerial, fan, air conditioner or
other device on the roof of the Premises or the Building without the prior
written consent of Landlord.
42. SECURITY.
Tenant hereby agrees to the exercise by Landlord and its agents and
employees, within their sole discretion, of such security measures as Landlord
deems necessary for the Building. It is understood and agreed, however, that
Landlord is under no obligation to provide any particular form or amount of
security on behalf of Tenant, the Building, or any occupancy or visitor to the
Building. Tenant may install a security system within the Premises, provided
such system and its installation (i) shall be subject to Landlord's prior
written approval, which shall not be unreasonably withheld (provided it shall
not be unreasonable for Landlord to deny consent to any system which is not
compatible with the building's overall security and fire safety and life safety
systems, or which is not reasonably usable by any successor tenants in the
Premises), (ii) shall be in accordance with all applicable legal requirements
(iii) shall be performed at Tenant's sole expense, and shall be otherwise be
installed in accordance with the provisions governing Alterations under this
Lease.
43. AUTHORITY OF TENANT.
If Tenant is a corporation or partnership, each individual executing this
Lease on behalf of said corporation or partnership represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation or partnership, and that this Lease is binding upon said corporation
or partnership.
44. NO ACCORD OR SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount than the
Rent and other sums due hereunder shall be deemed to be other than on account of
the earliest rent or other sums due, nor shall any endorsement or statement on
any check or accompanying any check or payment be deemed an accord and
satisfaction; and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or other sum and to pursue
any other remedy provided in this Lease.
45. MODIFICATION FOR LENDER.
If, prior to the Commencement Date, Landlord's lender shall request
reasonable modifications to this Lease as a condition to such Lender's approval
of this Lease, Tenant shall not unreasonably withhold, delay, or defer its
consent to such modification provided such modifications do not materially
adversely affect Tenant's rights hereunder. If Tenant shall refuse to consent,
Landlord shall have the right to terminate this Lease, in which case all
obligations of the parties hereunder shall cease.
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46. [INTENTIONALLY DELETED]
47. GENERAL PROVISIONS.
47.1 Acceptance. The delivery of any draft of this Lease, including a
so-called "execution draft", shall not constitute an offer of any kind, and this
Lease shall only become effective and binding upon full execution hereof by
Landlord and Tenant, and delivery of a signed copy by Landlord to Tenant.
47.2 Joint Obligation. If there be more than one Tenant, the obligations
hereunder imposed shall be joint and several.
47.3 Marginal Headings, Etc. The marginal headings, Table of Contents,
lease summary sheet and titles to the sections of this Lease are not a part of
the Lease and shall have no effect upon the construction or interpretation of
any part hereof.
47.4 Choice of Law. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
47.5 Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, inure to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
47.6 Recordation. Except to the extent otherwise required by law, neither
Landlord nor Tenant shall record this Lease, but a short-form memorandum hereof
may be recorded at the request of Landlord.
47.7 Quiet Possession. Upon Tenant's paying the Rent reserved hereunder
and observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the Lease Term hereof, free from any disturbance
or molestation by Landlord, or anyone claiming by, through or under Landlord,
but in all events subject to all the provisions of this Lease.
47.8 Inability to Perform; Force Majeure. This Lease and the obligations
of the parties hereunder shall not be affected or impaired because the other
party is unable to fulfill any of its obligations hereunder (or is delayed in
doing so) to the extent such inability or delay is caused by reason of war,
civil unrest, strike, labor troubles, unusually inclement weather, unusual
governmental delays, inability to procure services or materials despite
reasonable efforts, third party delays, acts of God, or any other cause(s)
beyond the reasonable control of such party (which causes are referred to
collectively herein as "Force Majeure"), provided (i) in no event shall any
monetary obligations,
49
including without limitation the Tenant's obligation to pay Base Rent or
additional rent, be extended due to Force Majeure, (ii) in no event shall
financial inability constitute a cause beyond the reasonable control of a party,
and (iii) in order for any party hereto to claim the benefit of a delay due to
Force Majeure, such party shall be required to use reasonable efforts to
minimize the extent and duration of such delay, and to notify the other party of
the existence and nature of the cause of such delay within a reasonable time
after the such delay first commences. Except as limited by the foregoing clauses
(i), (ii) and (iii), any time specified non-monetary obligation of a party in
this Lease shall be extended one day for each day of delay suffered by such
party as a result of the occurrence of any Force Majeure.
47.9 Partial Invalidity. Any provision of this Lease which shall prove to
be invalid, void, or illegal shall in no way affect, impair or invalidate any
other provision hereof and such other provision(s) shall remain in full force
and effect.
47.10 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies at
law or in equity.
47.11 Entire Agreement. This Lease contains the entire agreement of the
parties hereto and no representations, inducements, promises or agreements, oral
or otherwise, between the parties, not embodied herein, shall be of any force or
effect. The foregoing shall not be deemed to affect Tenant's separate agreement
for the use of storage space in the lower lobby of the Building or any successor
agreement, lease or license for such space.
47.12 Survival. All indemnities set forth in this Lease shall survive the
expiration or earlier termination of this Lease.
47.13 Consents. If any provision of this Lease subjects any action,
inaction, activity or other right or obligation of Tenant to the prior consent
or approval of Landlord, Landlord shall be deemed to have the right to exercise
its sole and unfettered discretion in determining whether to grant or deny such
consent or approval, unless the provision in question states that Landlord's
consent or approval "shall not be unreasonably withheld", in which event
Landlord's consent shall be subject to Landlord's sole, but reasonable,
discretion.
47.14 Saving Clause. In the event (but solely to the extent) the
limitations on Landlord's liability set forth in Section 8.3 of this Lease would
be held to be unenforceable or void in the absence of a modification holding the
Landlord liable to Tenant or to another person for injury, loss, damage or
liability arising from Landlord's omission, fault, negligence or other
misconduct on or about the Premises, or other areas of the Building appurtenant
thereto or used in connection therewith and not under Tenant's exclusive
control, then such provision shall be deemed modified as and to the extent (but
solely to the extent) necessary to render such provision enforceable under
applicable law. The foregoing shall not affect the application of Section 34 of
this Lease to limit the assets available for execution of any claim against
Landlord.
50
47.15 Reservation. Nothing herein set forth shall be deemed or construed
to restrict Landlord from making any modifications to any of the parking and/or
common areas serving the Building and/or Premises as of the date of execution
hereof, and Landlord expressly reserves the right to make any modifications to
such areas as Landlord may deem appropriate, including but not limited to, the
addition or deletion of temporary and/or permanent improvements therein, and/or
the conversion of areas now dedicated for the non-exclusive common use of
tenants (including Tenant) to the exclusive use of one (1) or more tenants or
licensees within the Building.
47.16 Keys. Landlord shall initially provide Tenant, without charge,
twenty (20) suite keys and twenty (20) security keys (to the extent the Building
has a remote entry security system). The cost of any additional or replacement
suite keys or security keys shall be reimbursed by Tenant to Landlord upon
demand.
47.17 Rule Against Perpetuities. In order to ensure the compliance of this
Lease with any rule against perpetuities that may be in force in the state in
which the Premises are located, and without limiting or otherwise affecting
Landlord's and Tenant's rights and obligations under this Lease, as stated in
the other sections hereof, Landlord and Tenant agree that, irrespective of the
reasons therefor (other than a default by Tenant), in the event Tenant fails to
take possession of the Premises and commence paying Base Rent hereunder within
twenty (20) years after the date of execution of this Lease, then this Lease,
and the obligations of the parties hereunder, shall be deemed to be null and
void and of no further force and effect. Without affecting the specific timing
requirements otherwise applicable thereto under this Lease, any and all options
granted to Tenant under this Lease (including, without limitation, expansion,
renewal, right of first refusal, right of first offer, and like options) must be
exercised by Tenant, if at all, during the term of this Lease.
47.18 Certain Terminology.
A. The terms "including", "includes" and terms of like import shall
be interpreted to mean "including, but not limited to" and/or "includes, without
limitation."
B. The terms "herein", "here under", "hereinbelow", "above" and/or
"below", and any terms of like import, shall be interpreted to mean this Lease
as a whole, and not merely the Section, paragraph or subparagraph within which
such term is set forth.
C. As used in those provisions of this Lease where Tenant is
agreeing to assume responsibility for certain conduct, actions and/or omissions
of "Tenant", the term "Tenant" shall be construed to mean Tenant, and Tenant's
agents, employees, contractors, subcontractors, assignees, sublessees, licensees
and, while within the Premises, invitees and business visitors.
D. The term "Emergency" shall mean and refer to any situation or
circumstance where there is an immediate or imminent risk of injury or death to
persons or damage to property unless immediate action is taken to address such
situation or circumstances, as determined by the party invoking such term in
good faith.
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48. [INTENTIONALLY DELETED]
49. WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive trial by jury in any action, proceeding
or counterclaim brought by either of them against the other on all matters
arising out of this Lease, or the use and occupancy of the Premises. If Landlord
commences any summary proceeding for non-payment of Rent, Tenant will not
interpose (and waives the right to interpose) any non-mandatory counterclaim in
any such proceeding.
50. RENEWAL OPTION
A. General. Provided that (i) both at the time of the exercise of the
option hereinafter set forth and at the time of commencement of the Renewal Term
(as hereinafter defined) this Lease is in full force and effect and provided
further that Tenant is not then in default hereunder beyond the expiration of
any applicable notice and cure period provided for in this Lease and (ii) Tenant
is in occupancy of all of the Premises for the purpose of conducting its own
business, Tenant is hereby granted the option to renew the Term for one (1)
additional period of sixty (60) months (the "Renewal Term"), such Renewal Term
to commence at the expiration of the initial Lease Term. Tenant shall exercise
its option to renew by delivering notice of such election (the "Renewal Notice")
to Landlord not less than 12 months nor more than 18 months prior to the
expiration of the initial Lease Term. In the event that Landlord does not
receive the Renewal Notice prior to the expiration of such time period (time
being of the essence with respect thereto), then such option to renew the Lease
Term shall, upon the expiration of such time period, become null and void and be
of no further force or effect and Tenant shall, at the request of Landlord,
execute an instrument in form and substance acceptable to Landlord confirming
such facts.
B. Terms. The Renewal Term shall be upon the same terms and conditions of
this Lease except that (a) the Rent during the Renewal Term shall be at an
annual rate equal to the greater of (i) the Rent payable during the last twelve
(12) months of the initial Lease Term or (ii) the annual fair market rental rate
("FMR") for the Premises for the Renewal Term as determined by the Three Broker
Method set forth in Section 50.C of this Lease, except all references therein to
Tenant's Election Notice shall be deemed to refer to the Renewal Notice; (b)
Tenant shall have no option to renew this Lease beyond the expiration of the
Renewal Term, and (c) the Premises shall be delivered in their existing
condition (on an "as is" basis) at the time the Renewal Term commences.
C. Three Broker Method. The "Three Broker Method" shall operate as
follows: FMR shall be based upon the current fair market rental rate for
comparable space in comparable buildings in the Boston area, which shall be
determined by a board of three (3) licensed real estate brokers, one of whom
shall be named by Landlord, one by Tenant, and the two so appointed shall select
a third broker. Each member of the board of brokers shall be licensed in the
state in which the Premises is located as a real estate broker, specializing in
the field of commercial office leasing in
52
the Boston area, having no less than ten (10) years' experience in such field,
and recognized as ethical and reputable within the field. Landlord and Tenant
agree to make their appointments promptly within five (5) business days after
Landlord receives Tenant's Election Notice. The two (2) brokers selected by
Landlord and Tenant shall select the third broker within ten (10) days after
they both have been appointed, and each broker, within fifteen (15) days after
the third broker is elected, shall submit his or her determination of the FMR.
The FMR shall be the average of the two (2) closest determinations made by the
three (3) brokers (except if two brokers reach an identical determination, then
the FMR shall be the determination of such two brokers, and if the middle
determination is equal to the average of the highest and lowest determination,
the middle determination shall constitute the FMR). Landlord and Tenant shall
each pay the fee of the broker selected by it, and they shall equally share the
payment of the fee of the third broker.
D. New Lease After Renewal Term. Except for the renewal option set forth
in this Section 50, above, this Lease may only be extended beyond the Lease
Expiration Date by the parties executing a new lease on Landlord's then current
lease form or by an extension agreement signed by both parties making specific
reference to this Lease. No proposals, offers, correspondence or the like shall
be legally binding upon Landlord until and unless the terms are incorporated in
either a new lease or a formal amendment to this Lease as provided in this
subparagraph.
53
ADDITIONAL SCHEDULES.
The following additional schedules are attached hereto and made a part of
this Lease:
EXHIBIT A-1 Location and Dimensions of Premises
EXHIBIT A-2 Description of Land
EXHIBIT B [Not applicable]
EXHIBIT C [Not applicable]
EXHIBIT D Rules and Regulations
EXHIBIT E Janitorial Specifications
EXHIBIT F Form Estoppel Certificate
54
IN WITNESS WHEREOF, Landlord and Tenant have executed this Deed of Lease,
in triplicate, on the day and year first above written.
LANDLORD:
WELLSFORD/WHITEHALL PROPERTIES,
L.L.C., a Delaware limited liability company
By: (seal)
------------------------------------
Xxxxxxx X. Xxxxxxx
Authorized Signatory
TENANT:
ARBOR NATIONAL COMMERCIAL
MORTGAGE, LLC
By: /s/ Xxxxxx X. Xxxx (seal)
------------------------------------
Name: XXXXXX X. XXXX
Title: Sr. VP/Secretary
Saracen/office lease (form)
55
TENTH FLOOR PLAN
[GRAPHIC OMITTED]
SCOPE OF SERVICES
--------------------------------------------------------------------------------
00 XXXXX XXXXXX
JANITORIAL MAINTENANCE
It is the intent of this section of the Janitorial Agreement to establish the
Scope of Services to be provided at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx.
The Scope of Services outlined below should be referred to as a guide rather
than a limit of duties or obligations, as the intent of this Agreement is to
provide a comprehensive Janitorial program as herein after described.
I. DEFINITIONS: Wherever these words occur in this specification, the
following meanings shall apply:
A. Specifications: General information, general requirements, specific
requirements, and any supplements, drawings, sketches and data
sheets, attached or referenced, comprise the complete specification.
B. Manager: Xxxxxxxx Xxxx NE, Inc.
C. Contractor: The party/parties executing an Agreement with the Owner
for the work specified herein.
D. Work: All janitorial maintenance work specified, implied or
directed.
E. As Directed: Instructions from Manager's representative.
F. By Others: Work by others is not a part of this contract.
G. Indicated: Where the word appears in the Specification, it shall
signify that the term or items referred to are indicated on the
drawing.
H. Approved/Approval: Satisfactory to the Manager's representative.
I. Manager's representative: The person designated as the project
representative for administration of the Janitorial Maintenance
contract.
J. Extra Work: Work above contractor's normal Scope of Services. Such
"extra work" shall require prior written approval from Manager's
representative. Compensation for approved extra work will be made by
Owner.
K. Term: Duration of Janitorial Agreement is subject to partial or
complete cancellation upon sale of building(s). Owner will not be
subject to any cancellation charges and/or a percentage of the
remainder of the Agreement.
II. GENERAL REQUIREMENT
A. Intent: It is the intent of Xxxxxxxx Xxxx NE, Inc. hereinafter
referred to as Manager, to execute an agreement between the Owner
and a janitorial contractor capable of maintaining specified
properties in a manner complementing a first class property
management operation. It is therefore, vital that such a service be
Xxxxxxxx Xxxx Company Page 1
performed in a professional manner consistent with the highest
Janitorial Maintenance industry standards.
B. Hours of Service: Janitorial services are to be provided on a daily
basis, five (5) days per week, Monday through Friday; services shall
not interfere with regular business hours. Twenty-four hour
emergency service must be available throughout the year, without
regard to daily schedules.
C. Reporting: The account supervisor will submit a signed and dated
daily report noting corrections, contacts with lessees, special
problems, and other information as requested. The account supervisor
shall also be responsible for all day xxxxxx schedules and job
duties.
D. Facilities: A small on-site storage facility will be provided by
Manager. Scheduling shall be so as to optimize utility conservation.
Janitorial closets and storage space will be used for janitorial
supplies and equipment only. Contractor is responsible to maintain
these areas in a clean and orderly state.
E. Protection and Damage: Contractor shall, without additional expense
to the Owner, be responsible for all damages to persons or property
that occur in connection with the contracted work performed.
Breakage, loss or damage of any office equipment or other property
which may occur in or about the building as a result of Contractor's
operations or of the actions of its agents or employees shall be
made good by Contractor at its expense. Contractor shall take all
precautions necessary for the protection against injury of all
persons engaged in the performance of the Agreement. Contractor
shall observe all safety practices and comply with any applicable
safety regulations, including but not limited to all O.S.H.A.
regulations.
F. Space Deletion/Addition: In the event of a tenant vacating
contracted area, Contractor shall reduce the specific project
monthly cost by the vacated square footage at the agreed upon
Vacancy Credit Rate (see Exhibit B). In the event of additions,
Manager's representative may at its option increase the serviced
square footage at the current contract square foot price. Deletions
and additions must be directed by the Manager's representative. New
project additions must be approved by Manager's representative and
authorized in writing by Xxxxxxxx Xxxx NE, Inc..
III. GENERAL REQUIRED SCOPE OF SERVICES: The intention of the Manager is to
maintain a first-class quality project. Methods and frequencies may be
suggested and enforced, but in the event of their inadequacy, performance
results shall have precedence.
A. No janitorial employee shall disturb any personal items or papers on
a tenant's desk or work area.
Xxxxxxxx Xxxx Company Page 2
B. No janitorial employee will be allowed in any area of the building
other than the area of work responsibility or authorized break or
office area, without previous knowledge of his/her supervisor.
C. No janitorial employee shall use tenant's coffee, coffee break area,
equipment or phones (except for emergency).
D. No janitorial employee shall use tenant's radios or other personal
equipment.
E. Suite doors will be left locked at all times. Access to suite by
janitorial employees will be with a pass key.
F. All equipment used by janitorial employees will meet O.S.H.A.
standards for plugs, cords, grounds, etc.
G. Trash containers used to move trash to disposal area shall be
water-tight.
H. Safety equipment will be supplied to janitorial employees by
Contractor to meet O.S.H.A. standards for job being performed
(rubber gloves, safety glasses, etc.).
I. Protective mats shall be used in elevator cabs to protect carpet
during hours of janitorial service. These mats shall be removed
nightly.
J. Material Safety Data Sheets will be provided to Manager for all
products used by Contractor in the course of completing scope of
work defined herein.
IV. SPECIFIC SCOPE OF SERVICES
A. Lobby and Corridors: Daily Service
1. Sweep and clean building entrances.
2. Clean and remove smudges from entry door glass.
3. Polish all entry handles, door plates and metal trim.
4. Wipe clean all glass, wood, or metal doors and door jambs.
5. Empty all ashtrays, wipe clean, and polish.
6. Empty all trash receptacles, clean container with clean, damp
cloth, and replace plastic liner. (Manager supplies liners).
7. Remove all debris from landscaped pots and planters. (report
any thefts, broken pots or missing plants).
8. Dust and clean all horizontal surfaces under seven feet.
9. Dust mop and damp mop entry floors.
10. Clean and remove smudges and marks on walls, wall coverings,
and artwork.
11. Clean, polish and straighten all furniture as needed.
Xxxxxxxx Xxxx Company Page 3
12. Wipe clean all directory boards (exterior) with clean, soft
cloth using glass cleaner that is considered safe and not
labeled as hazardous waste.
13. Wipe clean all fire extinguisher cabinets and glass. (report
broken glass or missing extinguishers).
14. Clean and polish all elevator doors, jambs, call plates, and
hall lanterns.
15. Clean, polish and straighten all furniture as needed.
16. Dust and clean all lobby and corridor signage.
17. Report any lights burned out.
18. Secure all doors and turn off appropriate lights upon
completion of work assignments.
B. Lobbies and Corridors - Weekly Service
1. Clean and polish all entry metal and xxxxx.
2. Dust and clean or polish all baseboards.
3. Spot clean all carpeted areas.
4. Dust all ledges and exit signs.
5. Dust all walls above seven feet.
6. Clean inside of directory board with clean soft cloth.
C. Lobbies and Corridors - Monthly Service
1. Clean all ceiling vents and grills.
2. Dust high ceiling corners and entry ways.
3. Dust and clean light fixtures and covers (interior and
exterior).
4. Clean and treat all wood paneling and furniture as requested.
5. Strip, reseal or re-wax common area floors as necessary.
6. Shampoo carpet areas as necessary.
7. Dust and clean all fire lobby doors inside and out.
8. Polish door floor plates.
Xxxxxxxx Xxxx Company Page 4
D. Offices - Daily Service:
1. Remove hand spots or smudges from entry doors.
2. Using a dustless mop, damp mop all non-carpeted areas.
3. Vacuum and spot clean carpets in all traffic areas, removing
staples and other debris.
4. Properly position furniture, books and magazines in reception
areas.
5. Properly position furniture in offices and conference rooms.
6. Blackboards will be erased/chalk boards cleaned upon request
only.
7. Remove fingerprints and smudges from all walls.
8. Spot clean all partition glass and mirrors.
9. Remove all fingerprints and smudges from light switch covers,
electrical outlet cover plates and doorknob handles.
10. Dust windows xxxxx and ledges.
11. Dust all horizontal surfaces under seven feet, furniture, and
equipment. DO NOT dust desks, conference tables or counters
which are cluttered with paperwork.
12. Dust and replace all desk ornaments, phones and machines in
their original position.
13. Clean furniture fabric with a whisk broom to sweep off any
dust, paper bits, and erasures as needed. (remove all staples)
14. Empty all ashtrays and wipe clean.
15. Empty all wastebaskets and carry trash to designated areas for
removal; replace plastic liners as needed.
16. Empty large recycling bins from offices into separate
container to be disposed of into specially designated
recycling dumpsters.
17. Clean and wash all lunchroom table tops, counters, sinks,
cabinets, refrigerator, and stove (exterior only) surfaces.
(report any insect problems)
18. Report all burned-out lights.
19. Perform additional services requested by tenant and xxxx
tenant directly.
20. Before leaving any suite, shut off lights, electrical
appliances, close drapes and blinds and lock all entrance
doors and only interior doors as requested.
Xxxxxxxx Xxxx Company Page 5
E. Offices - Weekly Service
1. Damp wipe all interior doors with a treated cloth.
2. Detail vacuum entire carpet areas; remove staples and other
debris.
3. Damp mop all tile and hardwood floor areas.
4. Polish all desk tops that are cleared of paperwork.
5. Dust all ledges, files, baseboards, and xxxxx under seven
feet.
6. Vacuum all furniture or wipe vinyl furniture clean.
7. Dust all lower parts of furniture.
8. Detail and clean all kitchen or wet bar areas.
9. Dust all pictures, charts, and wall hangings
10. Damp wipe all telephones
F. Offices - Monthly Service
1. Completely clean all partitions and doors, door jambs, door
floor plates, glass and mirrors from floor to ceiling.
2. Dust all ledges, wall moldings, pictures, shelves, etc. over
seven feet.
3. Dust clean or vacuum all drapes and blinds.
4. Brush down and clean all vents and grills.
5. Strip, clean and apply floor dressing to all composition,
hardwood and parquet floors.
6. Scrub and wax all tile floors.
7. Detail all desks and office furniture.
8. Dust and clean all light fixtures and covers.
9. Detail and clean all kitchen, wet bars or lunch room areas.
10. Clean all baseboards.
11. Detail and vacuum chairs and upholstered furniture.
12. Dust all pictures, and similar wall hangings in Conference
rooms
G. Restrooms - Daily Service
1. Dust and clean restroom signage and doors.
2. Vacuum all restrooms vestibules and remove spots.
Xxxxxxxx Xxxx Company Page 6
3. Wet mop and disinfect tile floor, paying particular attention
to areas under urinals and toilet bowls.
4. Clean alkaline deposits and soap spills from floor tile grout.
5. Wash and disinfect all basins, urinals, and toilet bowls.
6. Clean underside rims of urinals and toilet bowls.
7. Wash both sides of toilet seats with soap and water and
disinfect.
8. Empty, clean, sanitize, and polish all paper dispensers,
replacing liners as necessary.
9. Clean and polish all mirrors.
10. Dust ledges and base boards.
11. Damp wipe, polish, and shine all chrome, metal fixtures, hand
plates, kick plates, utility covers, plumbing, clean-out
covers, and door knobs.
12. Spot clean with disinfectant all partitions and tile walls.
(report any graffiti and remove if possible)
13. Fill all toilet latrines, soap, sanitary napkin and towel
dispensers as necessary.
14. Report all burned out lights, leaking faucets, running
plumbing, or other maintenance needs.
15. Janitor carts will not be brought into restroom areas or used
to prop open doors.
16. Restroom doors will be propped open with a rubber stop, and a
sign indicating "restroom closed for cleaning", will be placed
outside.
H. Restrooms - Semi Weekly (twice per week)
1. Pour clean water down floor drains to prevent sewer gas from
escaping.
I. Restrooms - Weekly Service
1. Wash down ceramic tile floors and partitions inside and out,
and disinfect. (report and graffiti and clean if possible)
2. Wash down all enamel walls.
3. Wash all waste containers and disinfect.
4. Clean and polish all doors, door plates, and hardware.
J. Restrooms - Monthly Service
Xxxxxxxx Xxxx Company Page 7
1. Wipe clean all ceilings, lights, and fixtures.
2. Strip wax and apply new wax to tile floors.
3. Shampoo, as needed, and clean vestibule carpet.
4. Detail all toilet compartments and fixtures.
5. Brush and clean all grills and vents.
K. Elevators - Daily Service
1. Vacuum and clean all spots and stains from carpet.
2. Dust and clean granite baseboards.
3. Dust and polish all metal with approved polish (no abrasives).
4. Damp wipe and remove all spots and fingerprints from doors and
walls (interior and exterior).
5. Dust and clean elevator ceilings and lights.
6. Remove gum, stains or debris from ceilings, handrails and
elevator tracks.
7. Dust and clean emergency phone and security compartments.
8. Clean all call buttons, call plates, and signage.
9. Report any burned-out lights or malfunctions of elevator.
10. Clean and polish elevator tracks.
L. Elevator - Weekly Service
1. Detail all call buttons and call plates
2. Disinfect emergency phones.
M. Stairwells - Daily Service
1. Police entire stairwell, removing all trash, cigarette butts,
etc.
2. Report any exit signs that are burned out.
3. Report any lights burned-out.
N. Stairwells - Weekly Service
1. Sweep down all stairs and landings.
2. Dust all handrails, banisters, and ledges.
3. Clean all walls of fingerprints and smudge marks, etc.
Xxxxxxxx Xxxx Company Page 8
4. Dust and clean all stairwell signage.
O. Stairwells - Monthly Service
1. Wipe clean all stairwell doors and door jambs.
2. Wet mop all stairs and staff landing. (clean base boards if
necessary)
3. Dust and clean all lights and fixtures.
4. Dust and clean all emergency fire equipment and plumbing.
V. REQUIREMENTS FOR PERSONNEL
A. Friends/Relative/Visitors:
1. Absolutely no friends or relatives will be allowed to help
clean or accompany workers in the building.
2. Workers will not allow anyone into the building or tenant
space at any time.
B. Dress Code: All personnel must dress neatly and be well groomed.
1. Men:
a. Picture I.D. badge will be worn at all times when
working in or about the building.
b. No T-shirts or sandals are to be worn.
c. Shoes are to be worn at all times.
d. Hair must be clean and neat.
e. Pants and shirts are to be without holes.
2. Women:
a. Picture I.D. badge will be worn at all times when
working in or about the building.
b. No T-shirts or cut-off shorts will be worn.
c. Clothes will be neat and clean without holes.
d. Hair will be presentable at all times (no curlers).
e. Shoes are to be worn at all times.
C. Breaks
1. Break areas will be designated by supervisor.
2. Leaving the building is not permitted.
3. Entering secured areas or roof areas is not permitted.
Xxxxxxxx Xxxx Company Page 9
4. Tenant vending machines are not to be used.
5. Food in kitchen areas or refrigerator will not be taken.
6. All trash will be removed and break areas thoroughly cleaned.
D. Telephone Procedure
1. No outgoing or incoming calls are allowed.
2. Emergency calls are to be coordinated through the supervisor.
3. Tenant phones shall not be used except in the event of an
emergency requiring 911 assistance.
E. Smoking, Alcohol and Drugs
1. Workers shall be prohibited from working under the influence
of alcohol or drugs and shall be subject to immediate
dismissal.
2. Smoking on the job is prohibited.
VI. TRASH REMOVAL
A. Elevators will not be locked off or held on any floors to remove
trash or equipment; only designated elevators will be used.
B. Building entrance doors will not be used to remove trash from the
building.
C. Prior to removal, trash will be properly protected against spillage
or staining of carpet and floors.
D. All trash will be brought down in the elevator; a rubber
bumper-type cart should be used. All trash will be inspected by
security officer prior to emptying into trash compactor.
E. Any spills or debris should be cleaned up prior to leaving this
area.
F. Any defects or improper working conditions must be reported to the
Manager.
VII. JANITOR CLOSETS
A. Janitor closets will be kept orderly and clean at all times.
B. Storage of aluminum cans or newspapers is prohibited.
C. Faucets will be tightly secured.
D. Lights will be turned off after each use.
E. Doors will be kept locked.
VIII. CLEANING
Workers will not:
Xxxxxxxx Xxxx Company Page 10
1. Perform service beyond their capabilities or training.
2. Use cleaning equipment or electrical outlets in need of
repair.
3. Look in desk drawers, furniture, file cabinets, clothing, or
areas not assigned for cleaning.
4. Take any item from a tenant space no matter how small the item
may be. (examples: stick of gum, one xxxxx) If in question,
ask supervisor.
5. Loiter in the parking area before or after work duties.
Xxxxxxxx Xxxx Company Page 11
TENANT ESTOPPEL CERTIFICATE
Gentlemen:
For $10.00 and other good and sufficient consideration, receipt of which is
hereby acknowledged, and for the purpose of providing information to
("Agent") regarding the premises located at____________________
(the "Property") in which the undersigned is a tenant under that certain lease
agreement dated ______________ between ("Lessee") and _____________________(such
lessor and its successors and assigns are hereinafter referred to as "Lessor"),
the undersigned Lessee does hereby certify and agree that:
1. The Lease, a true and correct copy of which is attached hereto as Exhibit
"A", is in full force and effect, is valid and enforceable according to its
terms against Lessee and has not been modified, either orally or in writing,
except as indicated in this certificate. The leased premises contains
approximately _________ rentable square feet.
2. a. Term of Lease:
Date of Commencement:
Date of Expiration:
b. Renewal Options:
Exercised:
Not Exercised:
c. Current Monthly Rent: $
d. Current Share of Basic Operating Costs, Tax and Insurance
Contributions (as applicable):
e. Security Deposit:
f. Guarantor/s (if any):
3. Lessee has accepted possession of the premises leased under the Lease, and
all improvements, alterations and other work and parking facilities to be
performed or constructed by Lessor under the Lease have been completed as of the
date hereof and accepted by Lessee.
4. All rent, charges or other payments due Lessor under the Lease have been
paid as of the date of this certification, and there have been no prepayments of
rent or other obligations.
5. Neither Lessee nor Lessor under the Lease is in default under any terms of
the Lease nor has any event occurred, which with the passage of time (after
notice, if any required by the Lease), would become an event of default under
the Lease. No event or condition has occurred, which with the passage of time
(after notice, if any, required by the Lease), would give rise to any right or
option of Tenant to terminate the Lease or discontinue the operation of business
from the leased premises.
6. Lessee under the Lease has no claims, counterclaims, defenses or set-offs
against Lessor arising from the Lease, nor is Lessee entitled to any concession,
rebate, allowance or free rent for any period after this certification. As of
the date hereof, Lessee is not entitled to any partial or total abatement of
rent or other amounts due under the Lease.
7. As of the date hereof, there are no actions, whether voluntary or
otherwise, which are pending or have been threatened against Lessee under any
bankruptcy or insolvency laws of any State or the United States.
8. Lessee has not assigned, transferred or sublet all or any part of the
leased premises.
9. Lessee acknowledges that it has been advised by Lessor that Lessor may not
cancel, modify or amend the Lease without the prior written consent of Agent.
10. Lessee shall simultaneously deliver to Agent a copy of all notices of
default or termination now or hereafter served on Lessor by Lessee. Agent shall
have the right (but not the obligation) within thirty (30) days after Agent's
receipt of such notice (or such additional time as is reasonably required to
correct such default) to correct or remedy, or cause to be corrected and
remedied, each such default before Lessee may take any action under the Lease by
reason of such default. Lessee shall send all such notices to Agent at:
BankBoston, N.A., 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Real Estate Division, with a copy to BankBoston, N.A., 000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxx Xxxxx.
11. Lessee acknowledges that, to the extent required by the Lease, this
certification constitutes Lessor's and Agent's written request that the Lease
and Lessee's interest thereunder be subordinate to any mortgage or deed of trust
now or hereafter placed against the Property in favor of Agent.
12. This certification may not be changed, waived or discharged orally, but
only by an agreement in writing.
13. This certification shall be binding upon, and shall inure to the benefit
of Agent, Lessor and Lessee, the respective successors and assigns of Agent,
Lessor and Lessee and all parties claiming through or under such persons or any
such successor or assign.
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IN WITNESS WHEREOF, the undersigned has caused this letter to be executed
and, where applicable, its corporate seal affixed by its duly authorized
officers as of the ___ day of _________, 1998.
____________________________
(Lessee)
By:_________________________
Title:
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AGREEMENT OF GUARANTOR
The undersigned, being the guarantor or other surety of the obligations of
Lessee under the Lease, does hereby ratify and affirm the obligations of the
undersigned as such guarantor and other surety of such obligations, and does
hereby covenant and agree with, and represent and warrant to BANKBOSTON, N.A.,
as Agent for itself and other lenders, that the obligations of the undersigned
as such guarantor or surety are binding and enforceable against the undersigned
and that the guaranty set forth in or attached to the Lease is in full force and
effect in accordance with its terms as of the date hereof.
_________________________
(Guarantor)
By:______________________
Title:
1) If tenant (or guarantor) is a corporation or partnership, signature must be a
duly authorized officer or partner. Please print title under signature line.
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