Exhibit 10.9
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EXHIBIT 1, SHEET I
Two Apple Hill
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
(the "Building")
Execution Date: August 9, 1999
Tenant: eDocs. Inc
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(name)
a Delaware corporation
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(description of business organization)
000 Xxxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
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(principal place of business - mailing address)
Landlord: Metropolitan Life Insurance Company, Mailing Address: SSR
Realty Advisers, Inc., Xxx Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxx Xxxx 00000, Attn: Director of Asset Management.
Additional Notice Address: SSR Realty Advisors, Inc., Xxx
Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx Xxxx 00000,
Attn: Legal Department.
Building: The Building in the Town of Natick, Massachusetts, known as Two
Apple Hill, located at 000 Xxxxxxxxx Xxxxxx.
Art. 2 Premises: An area on the north side of the first
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(1st) floor of the Building,
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substantially as show on Lease Plan.
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Exhibit 2.
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Art. 3.1 Term Commencement Date: The date that Tenant takes occupancy
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of the premises for the conduct of its
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business of the premises, but in no
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event later than September 1, 1999
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Art. 3.2 Termination Date: Four (4) years after the Term
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Commencement Date subject to Paragraph
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2 of the Rider to the Lease.
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Art. 4.3 Final Plans Date: Not applicable
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Art. 5 Use of Premises: General business offices, including
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without limitation sales
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administration, software development,
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marketing and training
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EXHIBIT 1, SHEET 2
Two Apple Hill
598 Worcester Street
Natick, Massachusetts
(the "Building")
Tenant: eDocs. Inc.
Execution Date: August 9, 1999
Art. 6 Yearly Rent:
Rent Commencement Date: The earlier of: (x) December 1, 1999,
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or (v) one hundred four (104) days
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after execution of this Lease by
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Tenant.
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Time Period Yearly Rent Monthly Payment
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Rent Commencement
Date through the date
immediately preceding
the date six months
after the Rent
Commencement Date: $472,200.00 $39,350.00
The date six (6) months
after the Rent Commencement
Date through the end of
Lease Year 2: $597,200.04 $49,766.67
Lease Year 3: $609,144.00 $50,762.00
Lease Year 4: $633,032.04 $52,752.67
For the purposes of this Lease, each Lease Year shall be the
twelve month period, commencing as of the Rent Commencement
Date, or as of any anniversary of the Rent Commencement Date
Art. 7 Total Rentable Area: 23,388 square feet
Building Total Rentable Area: 128,117 square feet
Art. 8 Electric current will be furnished by Landlord to Tenant. In
consideration of Landlord providing electric current to Tenant
during the term of the Lease, in accordance with Article 8.1,
Tenant shall pay to Landlord, as additional rent, at the same
time and in the same manner as Yearly Rent is paid under the
Lease, electricity rent ("Electricity Rent") in the initial
amount of $29,860.08 per annum (i.e., a monthly payment of
$2,488.34), subject to increase in accordance with Article
8.1(b).
Art. 9 Operating and Tax Escalation:
Operating Costs in
the Base Year: The actual amount of Operating Costs
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For Calendar year 1999 subject to
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Article 9.6 of the Lease.
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EXHIBIT 1, SHEET 3
Two Apple Hill
598 Worcester Street
Natick, Massachusetts
(the "Building")
Tenant: eDocs. Inc.
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Execution Date: August 9, 1999
Tax Base: The Tax Base shall be determined by multiplying (x)
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the tax rate Imposed by the Town of Natick on the
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Land and Building for fiscal/tax year 2000 (i.e.,
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July 1, 1999 - June 30, 2000), by (y) the sum of the
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assessed value of the Building and the Land for
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fiscal/tax year 2000 (and excluding the assessed
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value attributable to the Garage for fiscal/tax year
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2001) plus the allocable share (i.e. in accordance
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with the provisions of Article 9.1(d) of the Lease)
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of the assessed value of the Garage for fiscal/tax
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year 2001.
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Tenant's Proportionate Share: 18.65%
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Art. 29.3 Co-Brokers: Xxxxxx Xxxxx & X'Xxxxxx and Insignia/ESG
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Art. 29.5 Arbitration: Massachusetts Superior Court
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Exhibit Dates: Lease Plan, Exhibit 2, dated August, 1999
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LANDLORD: TENANT:
METROPOLITAN LIFE INSURANCE COMPANY EDOCS, INC.
On behalf of a co-mingled separate account
By: SSR Realty Advisors, Inc., its
Investment Advisor
By: /s/ A. Xxxx Xxxxx, Senior Asset Manager By: /s/ Xxxxx X. Xxxxxxx, CEO
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(Name) (Title) (Name) (Title)
Hereunto Duly Authorized Hereunto Duly Authorized
Date Signed: 8/12/99 Date Signed: 8/9/99
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LEASE PLAN, EXHIBIT 2
Tenant: eDocs, Inc.
Date: August 9, 1999
[Floor Plan]
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CONTENTS
1. REFERENCE DATA........................................................1
2. DESCRIPTION OF DEMISED PREMISES.......................................1
2.1 Demised Premises....................................................1
2.2 Appurtenant Rights..................................................1
2.3 Exclusions and Reservations.........................................1
3. TERM OF LEASE ........................................................2
3.1 Definitions.........................................................2
3.2 Habendum............................................................2
3.3 Declaration Fixing Term Commencement Date...........................2
4. CONDITION OF PREMISES.................................................2
4.1 Condition of Premises...............................................2
4.2 Intentionally Omitted...............................................2
4.3 Entry Tenant Prior to Term Commencement Date........................2
5. USE OF PREMISES.......................................................2
5.1 Permitted Use.......................................................2
5.2 Prohibited Uses.....................................................3
5.3 Licenses and Permits................................................3
5.4 Vacancy by Tenant...................................................3
6. RENT..................................................................3
7. RENTABLE AREA.........................................................4
8. SERVICES FURNISHED BY LANDLORD........................................4
8.1 Electric Current....................................................4
8.2 Water...............................................................5
8.3 Elevators, Heat, Cleaning, Access...................................5
8.4 Air Conditioning....................................................6
8.5 Additional Heat, Cleaning-and Air Conditioning-Services.............6
8.6 Additional Air Conditioning Equipment...............................6
8.7 Repairs.............................................................6
8.8 Interruption or Curtailment of Services.............................6
8.9 Energy Conservation.................................................7
8.10 Miscellaneous.......................................................7
9. ESCALATION............................................................7
9.1 Definitions.........................................................7
9.2 Tax Excess.........................................................11
9.3 Operating Expense Excess...........................................11
9.4 Part Years.........................................................11
9.5 Effect of Taking...................................................11
9.6 Adjustment in Operating Costs......................................11
9.7 Tenant's Audit Rights..............................................12
9.8 Survival...........................................................12
10. CHANGES OR ALTERATIONS BY LANDLORD.................................12
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11 FIXTURES, EQUIPMENT AND IMPROVEMENTS-REMOVAL BY TENANT..............13
12. ALTERATIONS AND IMPROVEMENTS BY TENANT..............................13
13. TENANT'S CONTRACTORS--MECHANICS' AND OTHER LIENS--STANDARD OF
TENANT'S PERFORMANCE--COMPLIANCE WITH LAWS.......................14
14. REPAIRS BY TENANT--FLOOR LOAD.......................................15
14.1 Repairs by Tenant................................................15
14.2 Floor Load-Heavy Machinery.......................................15
15. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION.............15
15.1 General Liability Insurance......................................16
15.2 Certificates of Insurance........................................16
15.3 General..........................................................16
15.4 Property of Tenant...............................................16
15.5 Bursting of Pipes, etc...........................................17
15.6 Repairs and Alterations--Diminution of Rental Value..............17
15.7 Landlord's Indemnity of Tenant...................................18
15.8 Landlord's Insurance.............................................18
16. ASSIGNMENT, MORTGAGING AND SUBLETTING...............................18
17. MISCELLANEOUS COVENANTS.............................................21
17.1 Rules and Regulations............................................21
17.2 Access to Premises-Shoring.......................................22
17.3 Accidents to Sanitary and Other Systems..........................22
17.4 Signs, Blinds and Drapes.........................................22
17.5 Estoppel Certificate.............................................23
17.6 Prohibited Materials and Property................................23
17.7 Requirements of Law-Fines and Penalties..........................23
17.8 Tenant's Acts-Effect an Insurance................................24
17.9 Miscellaneous....................................................24
18. DAMAGE BY FIRE, ETC.................................................24
19. WAIVER OF SUBROGATION...............................................26
20. CONDEMNATION - EMINENT DOMAIN.......................................26
21. DEFAULT.............................................................27
21.1 Conditions of Limitation - Re-entry - Termination................27
21.2 Landlord's Reletting Efforts.....................................28
21.3 Damages - Termination............................................28
21.4 Fees and Expenses................................................29
21.5 Waiver of Redemption.............................................29
21.6 Landlord's Remedies Not Exclusive................................29
21.7 Grace Period.....................................................29
22. END OF TERM - ABANDONED PROPERTY....................................30
23. SUBORDINATION.......................................................31
24. QUIET ENJOYMENT.....................................................32
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25. ENTIRE AGREEMENT - WAIVER - SURRENDER...............................32
25.1 Entire Agreement.................................................32
25.2 Waiver...........................................................32
25.3 Surrender........................................................32
26. INABILITY TO PERFORM - EXCULPATORY CLAUSE...........................33
27. BILLS AND NOTICES...................................................33
28. PARTIES BOUND - SEIZING OF TITLE....................................34
29. MISCELLANEOUS.......................................................34
29.1 Separability.....................................................34
29.2 Captions, etc....................................................34
29.3 Broker...........................................................35
29.4 Intentionally Omitted............................................35
29.5 Arbitration......................................................35
29.6 Governing Law....................................................35
29.7 Assignment of Rents..............................................35
29.8 Representation of Authority......................................36
29.9 Expenses Incurred by Landlord Upon Tenant Requests...............36
29.10 Survival.........................................................36
29.11 ERISA............................................................36
29.12 Year 2000 Compliance.............................................36
EXHIBITS
Exhibit 1 Lease Data Exhibit
Exhibit 2 Lease Plan
Exhibit 3 Building Standard Items
Exhibit 4 Building Services
Exhibit 5 Term Commencement Date Letter
Exhibit 6 Form of Letter of Credit
Exhibit 7 Excluded Operating Costs
Exhibit 8 Tenant's Removable Property
Exhibit 9 Landlord's Work
Exhibit 10 List of Plans and Specifications describing the initial Tenant
Work Rider to Lease
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THIS INDENTURE OF LEASE made and entered into on the Execution Date as
stated in Exhibit 1 and between the Landlord and the Tenant named in Exhibit 1.
Landlord does hereby demise and lease to Tenant, and Tenant does hereby
hire and take from Landlord, the premises hereinafter mentioned and described
(hereinafter referred to as "premises"), upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease for the term
hereinafter stated:
1. REFERENCE DATA
Each reference in this Lease to any of the terms and titles contained in
any Exhibit attached to this Lease shall be deemed and construed to incorporate
the data stated under that term or title in such Exhibit.
2. DESCRIPTION OF DEMISED PREMISES
2.1 Demised Premises. The premises are that portion of the Building, as
described in Exhibit 1 (as the same may from time to time be constituted after
changes therein, additions thereto and eliminations therefrom pursuant to rights
of Landlord hereinafter reserved) and is hereinafter referred to as "Building",
substantially as shown hatched or outlined on the Lease Plan (Exhibit 2) hereto
attached and incorporated by reference as apart hereof.
2.2 Appurtenant Rights. Tenant shall have, as appurtenant to the
premises, rights to use in common, with others entitled thereto, subject to
reasonable rules from time to time made by Landlord of which Tenant is given
notice; (a) the common lobbies, hallways, stairways and elevators of the
Building, serving the premises in common with others, (b) common walkways and
roadways necessary for access to the Building and the parking areas described
below, and (c) if the premises include less than the entire rentable area of any
floor, the common toilets and other common facilities of such floor; and no
other appurtenant rights or easements. Notwithstanding anything to the contrary
herein or in the Lease contained, Landlord has no obligation to allow any
particular telecommunication service provider to have access s to the Building
or to Tenant's premises. If Landlord permits such access, Landlord may
condition such access upon the payment to Landlord by the service provider of
fees assessed by Landlord in its sole discretion.
As of the Execution Date of this Lease, there are 3.5 parking spaces in the
surface parking lot and in the adjacent parking garage ("Garage") which are
owned by Landlord and are designated for use by the tenants in the Building for
every 1,000 square feet of the Building Total Rentable Area (as defined in
Exhibit 1). Nothing contained in the Lease shall prohibit or otherwise restrict
Landlord From changing, from time to time, following notice to Tenant, the
location, layout or type of such parking areas, provided that Landlord shall
not, except as required by law or by takings, reduce the number of parking
spaces available for such tenants' use or relocate the parking spaces to a lot
or garage more distant from the Building. Subject to reasonable rules from time
to time made by Landlord of which Tenant is given at least ten (10) days prior
written notice, Tenant shall have the right, in common with all other tenants of
the Building, to use such parking areas, without charge, on a first-come first-
served basis. The parties acknowledge that Landlord shall have no obligation to
Tenant to police the use of said parking spaces; however, Landlord may implement
systems, as Landlord deems fit to monitor the use of the surface parking lot.
2.3 Exclusions and Reservations. All the perimeter walls of the
premises except the inner surfaces thereof, any balconies (except to the extent
same are shown as part of the premises on the Lease Plan (Exhibit 2)), terraces
or roofs adjacent to the premises, and any space in or adjacent to the premises
used for shafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan
rooms, ducts, electric or other utilities, sinks or other Building facilities,
and the use thereof, as well as the right of access through the premises for the
purpose of operation, maintenance, decoration and repair, are expressly excluded
from the premises and reserved to Landlord. Notwithstanding anything to the
contrary in the Lease contained:
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1. Landlord, its agents, employees and contractors shall not, except in
an emergency and except for normal cleaning and maintenance
operations, exercise any right which it has to enter the premises
without giving Tenant reasonable advance notice; and
2. Landlord shall use reasonable efforts to minimize any interference
with Tenant's use and enjoyment of the premises arising from any entry
into the premises by Landlord.
3. TERM OF LEASE
3.1 Definitions. As used in this Lease the words and terms which follow
mean and include the following:
"Term Commencement Date" - The "Term Commencement Date" is the date
set forth in Exhibit 1.
3.2 Habendum. TO HAVE AND TO HOLD the premises for a term of years
commencing on the Term Commencement Date and ending on the Termination Date as
stated in Exhibit 1 or on such earlier date upon which said term may expire or
be terminated pursuant to any of the conditions of limitation or other
provisions of this Lease or pursuant to law (which date for the termination of
the terms hereof will hereafter be called "Termination Date"). Notwithstanding
the foregoing, if the Termination Dare as stated in Exhibit 1 shall fall on
other than the last day of a calendar month, said Termination Date shall be
deemed to be the last day of the calendar month in which said Termination Date
occurs.
3.3 Declaration Fixing Term Commencement Date. As soon as may be after
the execution date hereof, each of the parties hereto agrees, upon demand of the
other party to join in the execution, in the form attached hereto as Exhibit 5,
of a statutory notice, memorandum, etc. of lease and/or written declaration in
which shall be stated such Term Commencement Date and (if need be) the
Termination Date. If this Lease is terminated before the term expires, then
upon Landlord's request the parties shall execute, deliver and record an
instrument acknowledging such fact and the date of termination of this Lease,
and Tenant hereby appoints Landlord its attorney-in-fact in its name and behalf
to execute such instrument if Tenant shall fail to execute and deliver such
instrument after Landlord's request therefor within ten (10) days.
4. CONDITION OF PREMISES
4.1 Condition of Premises. Notwithstanding anything to the contrary
herein or in the Lease contained. Tenant shall take the premises "as-is", in
the condition in which the premises are in as of the Term Commencement Date
without any obligation on the part of Landlord to construct the premises for
Tenant's occupancy and without any representation or warranty by Landlord as to
the condition of the premises or the Building, except that Landlord shall
substantially complete Landlord's Work on or before September 15, 1999.
4.2 Intentionally Omitted.
4.3 Entry Tenant Prior to Term Commencement Date. Tenant shall have the
right to enter the premises prior to the Term Commencement Date, without payment
of rent, and, subject to causes beyond Landlord's reasonable control and
Landlord's reasonable security requirements, at all times, to perform such work
or decoration as is to be performed by, or under the direction or control of,
Tenant and as is otherwise in compliance with the terms of this Lease. Such
right of entry shall be deemed a license from Landlord to Tenant, and any entry
thereunder shall be at the risk of Tenant.
5. USE OF PREMISES
5.1 Permitted Use. Tenant shall occupy and use the premises only for
the purposes as stated in Exhibit 1 and for no other purposes. Service and
utility areas (whether or not a part of the premises) shall be used only for the
particular purpose for which they were designed. Without limiting the
generality of the foregoing, Tenant agrees that it shall not use the premises or
any part thereof, or permit the premises or nay part thereof to be used for the
preparation or dispensing of food, whether by vending machines or otherwise.
Notwithstanding the
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foregoing, but subject to the other terms and provisions of this Lease, Tenant
may, with Landlord's prior written consent, which consent shall not be
unreasonably withheld, install at its own cost and expense so- called hot-cold
water fountains, coffee makers and so-called Xxxxx refrigerator- sink-stove
combinations for the preparation of beverages and foods, provided that no
cooking, frying, etc., are carried on in the premises to such extent as requires
special exhaust venting, Tenant hereby acknowledging that the Building is not
engineered to provide any such special venting.
5.2 Prohibited Uses. Notwithstanding any other provision of this
Lease, Tenant shall not use, or suffer or permit the use or occupancy of, or
suffer or permit anything to be done in or anything to be brought into or kept
in or about the premises or the Building or any part thereof (including without
limitation, any materials appliances or equipment used in the construction or
other preparation of the premises and furniture and carpeting): (i) which would
violate any of the covenants, agreements, terms, provisions and conditions of
this Lease; (ii) for any unlawful purposes or in any unlawful manner; (iii)
which, in the reasonable judgment of Landlord shall in any way (a) impair the
appearance or reputation of the Building; or (b) materially impair, interfere
with or otherwise diminish the quality of any of the Building services or the
proper and economic heating, cleaning ventilating, air conditioning or other
servicing of the Building; or premises, or with the use or occupancy of any of
the other areas of the Building, or occasion unreasonable discomfort,
inconvenience or annoyance, or injury or damage to any occupants of the premises
or other tenants or occupants of the Building; or (iv) which is inconsistent
with the maintenance of the Building as an office building of the first class in
the quality of its maintenance, use, or occupancy. Tenant shall not install or
use any electrical or other equipment of any kind which, in the reasonable
judgment of Landlord, might cause any such impairment, interference, discomfort,
inconvenience, annoyance or injury.
5.3 Licenses and Permits. If any governmental license or permit shall
be required for the proper and lawful conduct of Tenant's business, and if the
failure to secure such license or permit would in any way affect, Landlord, the
premises, the Building or Tenant's ability to perform any of its obligations
under this Lease, Tenant, at Tenant's expense, shall duly procure and thereafter
maintain such license and submit the same to inspection by Landlord. Tenant, at
Tenant's expense, shall at all times comply with the terms and conditions of
each such license or permit. Tenant shall furnish all data and information to
governmental authorities and Landlord as required in accordance with legal,
regulatory, licensing or other similar requirements as they relate to Tenant's
use or occupancy of the premises or the Building.
5.4 Vacancy by Tenant. Notwithstanding anything to the contrary in the
Lease contained, if Tenant shall abandon or vacate the premises for a period of
no less than one hundred twenty (120) days, then Landlord shall have the right
to terminate this Lease upon written notice to Tenant.
6. RENT
During the term of this Lease the Yearly Rent and other charges, at the
rate stated in Exhibit 1, shall be payable by Tenant to Landlord by monthly
payments, as stated in Exhibit 1, in advance and without demand on the first day
of each month for an in respect of such month. Notwithstanding anything to the
contrary herein contained, Tenant's obligation to pay Yearly Rent shall not
commence to accrue until the Rent Commencement Date, as defined in Exhibit 1.
If, by reason of any provision of this Lease, the rent reserved hereunder shall
commence or termination on any day other than the first day of a calendar month,
the rent for such calendar month shall be prorated. The rent shall be payable
to Landlord or, if Landlord shall so direct in writing, to Landlord's agent or
nominee, in lawful money of the United States which shall be legal tender for
payment of all debts and dues, public and private, at the time of payment, at
the office of the Landlord or such place as Landlord may designate, and the rent
and other charges in all circumstances shall be payable without any setoff or
deduction whatsoever, except as otherwise provided under this Lease. Rental and
any other sums due hereunder not paid on or before the date five (5) business
days after the date due shall bear interest for each month or fraction thereof
from the due date until paid computed at the annual rate of five percentage
points over the so-called prime rate then currently from time to time charged to
its most favored corporate customers by the largest national bank (N.A.) located
in the city in which the Building is located, or at any applicable lesser
maximum legally permissible rate for debts of this nature.
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7. RENTABLE AREA
Total Rentable Area of the premises and of the Building are agreed to be
the amounts set forth on Exhibit 1.
8. SERVICES FURNISHED BY LANDLORD
8.1 Electric Current.
(a) As stated in Exhibit 1, Landlord will furnish to Tenant, as an
incident of this Lease, electric current for the operation of lighting fixtures,
the 120-volt electrical outlets installed in the premises. In consideration of
Landlord's obligation to provide electric current to the premises, Tenant shall
pay to Landlord, as additional rent, Electricity Rent, as set forth on Exhibit
1.
(b) If the cost to Landlord of providing electric current to the
premises increases during the term of this Lease in excess of the amount of
Electricity Rent payable by Tenant as set forth on Exhibit 1, including without
limitation, a cost increase due to a change in rates charged by the supplier of
electric current, then upon written demand by Landlord upon Tenant, Tenant
shall, to the extent permitted by law, pay to Landlord (i.e. and Electricity
Rent shall be increased by) such an amount as shall reimburse Landlord for any
increase in the cost to Landlord of the services to be furnished by Landlord to
Tenant pursuant to this Article 8.1. Landlord may make demand upon Tenant for
reimbursement pursuant to this Subparagraph 8.l(b) no more frequently than
monthly. Whenever a reimbursement shall be demanded by Landlord, Landlord shall
furnish to Tenant a statement in writing of Landlord's computation of the
appropriate amount of said reimbursement; such statement shall include
sufficient detail to enable Tenant to verify Landlord's determination of the
amount of the reimbursement referred to therein and, if requested by Tenant,
such cost and ocher records of Landlord as were used by it as the basis for such
computation. The amount of such reimbursement, as specified in any such
statement of Landlord, shall become binding upon the parties hereto unless
within thirty (30) days after Landlord shall have furnished to Tenant such
statement, Tenant pays the amount billed and with such payment notifies Landlord
in writing that Tenant disputes the amount of such reimbursement as determined
by Landlord as aforesaid. Upon Landlord's receipt of a timely objection notice
from Tenant. Landlord and Tenant shall work together in good faith to resolve
the discrepancy between Landlord's statement and Tenant's review. If Landlord
exercises its rights under this Article 8.1(b): (i) Landlord shall, upon written
request of Tenant and at Tenant's cost, install a check meter for the electric
current consumed in the premises, (ii) Tenant shall pay the cost of electric
current consumed in the premises at the rate per unit paid by Landlord to the
utility supplying the same, and (iii) upon the installation of such meter.
Tenant shall have no obligation to pay Electricity Rent.
(c) Landlord, at any time, at its option and upon not less than thirty
(30) days' prior to written notice to Tenant, but no earlier than the date that
Tenant is able to obtain the same from the company, supplying electric current
to the premises, may discontinue such furnishing of electric current to the
premises; and in such case Tenant shall contract with the company supplying
electric current for the purchase and obtaining by Tenant of electric current
directly from such company. In the event Tenant itself contracts for
electricity with the supplier, pursuant to Landlord's option as above stated,
Landlord shall (i) permit its risers, conduits and feeders to the extent
available, suitable and safely capable, to be used for the purpose of enabling
Tenant to purchase and obtain electric current directly from such company, (ii)
without cost or charge to Tenant, make such alterations and additions to the
electrical equipment and/or appliances in the Building as such company shall
specify for the purpose of enabling Tenant to purchase and obtain electric
current directly from such company, and (iii) at Landlord's expense, furnish and
install in or near the premises any necessary metering equipment used in
connection with measuring Tenant's consumption of electric current and Tenant,
at Tenant's expense, shall maintain and keep in repair such metering equipment.
In the event that Landlord shall exercise such option, Tenant shall, after the
discontinuance of electric service provided by Landlord to the premises, have no
further obligation to pay Electricity Rent.
(d) If Tenant shall require electric current for use in the premises
in excess of five (5) xxxxx per rentable square foot (exclusive of HVAC service
requirements), such reasonable quantity to be furnished for such use as
hereinabove provided and if (i) in Landlord's reasonable judgment Landlord's
facilities are inadequate
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for such excess requirements or (ii) such excess use shall result in an
additional burden on the Building air conditioning system and additional cost to
Landlord on account thereof then, as the case may be, (x) Landlord upon written
request and at the sole cost and expense of Tenant, will furnish and install
such additional wire, conduits, feeders, switchboards and appurtenances as
reasonably may be required to supply such additional requirements of Tenant if
current therefor be available to Landlord, provided that the same shall be
permitted by applicable laws and insurance regulations and shall not cause
damage to the Building or the premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations or repairs
or interfere with or disturb other tenants or occupants of the Building or (y)
Tenant shall reimburse Landlord for such additional cost, as aforesaid.
(e) Landlord, at Tenant's expense and upon Tenant's request, shall
purchase and install all replacement lamps of types generally commercially
available (including, but not limited to, incandescent and fluorescent) used in
the premises.
(f) Landlord shall not in any way be liable or responsible to Tenant
for any loss, damage or expense which Tenant may sustain or incur if the
quantity, character, or supply of electrical energy is changed or is no longer
available or suitable for Tenant's requirements.
(g) Tenant agrees that it will not make any material alteration or
material addition to the electrical equipment and/or appliances in the premises
without the prior written consent of Landlord in each instance first obtained,
which consent will not be unreasonably withheld, and will promptly advise
Landlord of any other alteration or addition to such electrical equipment and/or
appliances.
8.2 Water. Landlord shall furnish hot and cold water for ordinary
premises, cleaning, toilet, lavatory, sink and dishwasher in connection with a
lunchroom and drinking purposes. If Tenant requires uses or consumes water for
any purpose other than for the aforementioned purposes, Landlord may (i) assess
a reasonable charge for the additional water so used or consumed by Tenant or
(ii) install a water meter and thereby measure Tenant's water consumption for
all purposes. In the latter event, Landlord shall pay the cost of the meter and
the cost of installation thereof and shall keep said meter and installation
equipment in good, working order and repair. Tenant agrees to pay for water
consumed, as shown on said meter, together with the sewer charges based on said
meter charges, as and when bills are rendered, and on default in making such
payment Landlord may pay such charges and collect the same from Tenant. All
piping and other equipment and facilities for use of water outside the building
core will be installed and maintained by Landlord at Tenant's sole cost and
expense.
8.3 Elevators, Heat, Cleaning, Access.
(a) Landlord at its expense shall: (i) provide necessary elevator
facilities (which may be manually or automatically operated, either or both, as
Landlord may from time to time elect) on Monday through Fridays, excepting legal
holidays, from 8:00 a.m. to 6:00 p.m. and on Saturdays, excepting legal
holidays, from 8:00 a.m. to 1:00 p.m. (called "business days") and have one
elevator in operation available for Tenant's use, non-exclusively, together with
others having business in the Building, at all other times; (ii) furnish heat
(substantially equivalent to that being furnished in comparably aged similarly
equipped office buildings in the same city) to the premises during the normal
heating season on business days; and (iii) cause the office areas of the
premises to be cleaned on business days (except on Saturdays) provided the same
are kept in order by Tenant. Exhibit 4 shall represent substantially the extent
and scope of the cleaning by Landlord referred to this Article 8.3.
(b) The parties agree and acknowledge that, despite reasonable
precautions in selecting cleaning and maintenance contractors and personnel, any
property or equipment in the premises of a delicate, fragile or vulnerable
nature may nevertheless be damaged in the course of cleaning and maintenance
services being performed. Accordingly, Tenant shall take reasonable protective
precautions with such property and equipment.
(c) Access. So long as Tenant shall comply with Landlord's reasonable
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security program for the Building, Tenant shall, subject to causes beyond
Landlord's reasonable control, have access to the premises and the Garage
twenty-four (24) hours per day during the term of this Lease.
5
8.4 Air Conditioning. Landlord shall through the air conditioning
equipment of the Building furnish to and distribute in the premises air
conditioning as normal seasonal changes may require on business days during the
hours as aforesaid in Article 8.3 when air conditioning may reasonably be
required for the comfortable occupancy of the premises by Tenant. Tenant agrees
to lower and close the blinds and drapes when necessary because of the sun's
position, whenever the air conditioning system is in operation, and to cooperate
fully with Landlord with regard to, and to abide by all the reasonable
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of the air conditioning system. The air conditioning
system referred to in this Article 8.4 shall be capable of maintaining a
temperature range of 62[degrees]F to 75[degrees]F dry bulb at 50% relative
humidity with outside conditions of 74[degrees]F dry bulb and 88[degrees]F wet
bulb.
8.5 Additional Heat, Cleaning-and Air Conditioning-Services.
(a) Landlord will use reasonable efforts upon reasonable advance
written notice from Tenant of its requirements in that regard, to furnish
additional heat, cleaning or air conditioning services to the premises on days
and at times other than as above provided.
(b) Tenant will pay to Landlord a reasonable charge (i) for any such
additional heat, cleaning or air conditioning, service required by Tenant, (ii)
for any extra cleaning of the premises required because of the gross
carelessness or gross indifference of Tenant or because of the nature of
Tenant's business, and (iii) for any cleaning done at the request of Tenant of
any portions of the premises which may be used for storage, shipping room or
other non-office purposes. If the cost to Landlord for cleaning the premises
shall be increased due to the installation in the premises, at Tenant's request,
of any materials or finish other than those which are building standard, Tenant
shall pay to Landlord an amount equal to such increase in cost. Landlord
represents to Tenant that, as of the Term Commencement Date, the charge for
additional heating, ventilating and air conditioning, is $40.00 per hour.
8.6 Additional Air Conditioning Equipment. In the event Tenant requires
additional air conditioning equipment for business machines, meeting rooms or
other special purposes, or because of excess occupancy or excess electrical
loads, any additional air conditioning units, chillers, condensers, compressors,
ducts, piping and other equipment, such additional air conditioning equipment
will be installed and maintained by Landlord at Tenant's sole cost and expense,
but only if, in Landlord's reasonable judgment, the same will not cause damage
or injury to the Building or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or unreasonably
interfere with or disturb other tenants; and Tenant shall reimburse Landlord in
such an amount as will compensate it for the cost incurred by it in operating
such additional air conditioning equipment.
8.7 Repairs. Except as otherwise provided in Articles 18 and 20,
Landlord shall keep and maintain the roof, exterior walls, structural floor
slabs, columns, elevators, public stairways and corridors, lavatories, equipment
(including, without limitation, sanitary, plumbing, electrical, heating, air
conditioning, or other systems) and common facilities of the Building in good
condition and repair.
8.8 Interruption or Curtailment of Services. A. When necessary by
reason of accident or emergency, or for repairs, alterations, replacements or
improvements which in the reasonable judgment of Landlord are desirable or
necessary to be made, or of difficulty or inability in securing supplies or
labor, or of strikes, or of any other cause beyond the reasonable control of
Landlord, whether such other cause be similar or dissimilar to those hereinabove
specifically mentioned until said cause has been removed, Landlord reserves the
right to interrupt, curtail, stop or suspend (i) the furnishing of heating,
elevator, air conditioning, and cleaning services and (ii) the operation of the
plumbing and electric systems. Upon reasonable advance notice to Tenant (except
that no notice shall be required in an emergency), Landlord shall exercise
reasonable diligence to eliminate the cause of any such interruption,
curtailment, stoppage or suspension, but there shall be no diminution or
abatement of rent or other compensation due from Landlord to Tenant hereunder,
nor shall this Lease be affected or any of the Tenant's obligations hereunder
reduced, and the Landlord shall have no responsibility or liability for any such
interruption, curtailment, stoppage, or suspension of services or systems.
6
B. Notwithstanding anything to the contrary in this Lease contained,
if the premises shall lack any service which Landlord is required to provide
hereunder (thereby rendering the premises or a portion thereof untenantable) so
that, for the Landlord Service Interruption Cure Period, as hereinafter defined,
the continued operation in the ordinary course of Tenant's business is
materially adversely affected and if Tenant ceases to use the affected portion
of the premises during the period of untenantability as the direct result of
such lack of service, then, provided that Tenant ceases to use the affected
portion of the premises during the entirety of the Landlord Service Interruption
Cure Period and that such untenantability and Landlord's inability to cure such
condition is not caused by the fault or neglect of Tenant or Tenant's agents,
employees or contractors. Yearly Rent, Operating Expense Excess, Tax Excess and
Electricity Rent shall thereafter be abated in proportion to such
untenantability until the day such condition is completely corrected. For the
purposes hereof, the "Landlord Service Interruption Cure Period" shall be
defined as five (5) consecutive business days after Landlord's receipt of
written notice from Tenant of the condition causing untenantability in the
premises, provided however, that the Landlord Service Interruption Cure Period
shall be fifteen (15) consecutive business days after Landlord's receipt of
written notice from Tenant of such condition causing untenantability in the
premises if either the condition was caused by causes beyond Landlord's control
or Landlord is unable to cure such condition as the result of causes beyond
Landlord's control.
C. Notwithstanding anything to the contrary in this Lease contained,
in the event that the premises lack any service which Landlord is required to
provide hereunder or electric current hereby rendering the premises or any
material portion thereof untenantable, the untenantability of which
substantially adversely affects the continued operation in the ordinary course
of Tenant's business, and (i) if such untenantability continues for ninety (90)
---
consecutive days after Landlord's receipt of written notice of such condition
from Tenant, and (ii) such untenantability is not caused by the fault or neglect
---
of Tenant, or Tenant's agents, employees or contractors, then, provided that
Tenant ceases to use the affected portion of the premises during the entire
period of such untenantability. Tenant shall have the right to terminate this
Lease exercisable by giving Landlord a written termination notice as follows.
This Lease shall terminate as of the date five (5) days after Landlord's receipt
of Tenant's notice, unless Landlord shall have cured such condition on or before
such tenth day.
D. The provisions of Paragraphs B and C of this Article 8.8 shall not
apply in the event of untenantability caused by fire or other casualty, or
taking (see Articles 18 and 20).
8.9 Energy Conservation. Notwithstanding anything, to the contrary in
this Article 8 or in this Lease contained, Landlord may institute, and Tenant
shall comply with, such policies, programs and measures: (i) as may be
reasonably necessary, required, or expedient for the conservation and/or
preservation of energy or energy services, provided however, that Landlord does
not by reason of such policies, programs and measures, reduce the level of
energy or energy services being provided to the premises below the level of
energy or energy services then being provided in comparably aged, first-class
office buildings in the greater Boston area and provided that the provisions of
this clause (i) shall not be taken into account in determining whether rent
abates or whether Tenant has the right to terminate the Lease pursuant to
Article 8.8, or (ii) as may be necessary or required to comply with applicable
codes, rules regulations or standards.
8.10 Miscellaneous. Other than parking, which shall be provided in
accordance with Article 2.2 hereof, all services provided by Landlord to Tenant
are based upon an assumed maximum premises population of one person per one
hundred seventy-five (175) square feet of Total Rentable Area, which limit
Tenant shall in no event exceed.
9. ESCALATION
9.1 Definitions. As used in this Article 9, the words and terms which
follow mean and include the following:
(a) "Operating Year" shall mean a calendar year in which occurs any
part of the term of this Lease.
(b) "Operating Costs in the Base Year" shall be the amount as stated
in Exhibit 1.
7
(c) "Tenant's Proportionate Share" shall be the figure as stated in
Exhibit 1.
(d) "Taxes" shall mean the real estate taxes and other taxes, levies
and assessments imposed upon the Building and the land on which it stands and
upon any personal property of Landlord used in the operation thereof, or
Landlord's interest in the Building or such personal property; charges, fees and
assessments for transit, housing, police, fire or other Governmental services or
purported benefits to the Building; service or user payments in lieu of taxes;
and any and all other taxes, levies, betterments, assessments and charges
arising from the ownership, leasing, operating, use or occupancy of the Building
or based upon rentals derived therefrom, which are or shall be imposed by
National, State, Municipal or other authorities. Taxes included real estate
taxes allocated on the parcel of land ("Garage Land") on which the Garage is
located and on the Garage itself, except that such taxes are allocated between
the Building and Three Apple Hill on the basis of the relative Total Rentable
Area included in the building and Three Apple Hill. The land on which the
Building is located and the Garage Land are, for the purposes of this Paragraph
(d), referred to as the "Land". As of the Execution Dare, "Taxes" shall not
include any franchise, rental, income or profit tax, capital levy or excise,
provided, however, that any of the same and any other, tax, excise, fee, levy,
charge or assessment, however described, that may in the future be levied or
assessed as a substitute for or an addition to, in whole or in part, any tax,
levy or assessment which would otherwise constitute "Taxes." whether or not now
customary or in the contemplation of the parties on the Execution Date of this
Lease, shall constitute "Taxes." but only to the extent calculated as if the
Building and the Garage Land are the only real estate owned by Landlord.
"Taxes" shall also include expenses of tax abatement or other proceedings
contesting assessments or levies.
(e) "Tax Base" shall be the amount stated in Exhibit 1 and shall apply
to a Tax Period of twelve (12) months. Tax Base shall be reduced pro rata if
and to the extent that the Tax Period contains fewer than twelve (12) months.
(f) "Tax Period" shall be any fiscal/tax period in respect of which
Taxes are due and payable to the appropriate governmental taxing authority, any
portion of which period occurs during the term of this Lease, the first such
Period being the one in which the Term Commencement Date occurs.
(g) "Operating Costs":
(1) Definition of Operating Costs. "Operating Costs" shall mean
all costs incurred and expenditures of whatever nature made by
Landlord in the operation and management, for repair and replacements,
cleaning and maintenance of the Building and grounds including,
without limitation, vehicular and pedestrian passageways related to
the Building (but excluding those areas, if any, outside the Building
and for which operating expenses are chargeable to non-office (i.e.,
commercial) tenants), related equipment, facilities and appurtenances,
elevators, cooling, and heating equipment. In the event that Landlord
or Landlord's managers or agents perform services for the benefit of
the Building off-site which would otherwise be performed on-site (e.g.
accounting), the cost of such services shall be reasonably allocated
among the properties benefiting from such service and shall be
included in Operating Costs. Operating Costs shall include, without
limitation, those categories of "Specifically Included Operating
Costs," as set forth below, but shall not include "Excluded Costs," as
hereinafter defined.
If during all or part of any Operating Year (including, without
limitation, the Base Year), Landlord is not performing or furnishing
any item to any portion of the Building (the cost of which, if
performed or furnished by Landlord to such portion of the Building
would constitute a part of Operating Costs) on account of (a) such
portion of the Building not being occupied or leased, (b) such item
not being required or desired by a tenant, (c) any tenant itself
obtaining or providing such item, or (d) any other reason, whether
similar or dissimilar to the foregoing; then, Operating Costs shall be
deemed to be increased by an amount equal to the additional costs and
expenses which would reasonably have been incurred during such period
by Landlord if it had performed or furnished such item to 100% of the
Building.
8
(2) Definition of Excluded Costs. "Excluded Costs" shall be
defined as mortgage charges, brokerage commissions, salaries of
executives ad owners not directly employed in the management/operation
of the Building, the cost of work done by Landlord for a particular
tenant for which Landlord has the right to be reimbursed by such
Tenant, other Excluded Costs as set forth in Exhibit 7, and, subject
to Subparagraph (3) below, such portion of expenditures as are not
property chargeable against income.
(3) Capital Expenditures.
(i) Replacements. If, during the term of this Lease,
------------
Landlord shall replace any capital items or make any capital
expenditures (collectively called "capital expenditures"), there
shall nevertheless be included in such Operating Costs and in
Operating Costs for each succeeding Operating Year the amount, if
any, by which the Annual Charge-Off (determined as hereinafter
provided) of such capital expenditure (less insurance proceeds,
if any, collected by Landlord by reason of damage to, or
destruction of the capital item being replace) exceeds the annual
Charge-Off of the capital expenditure for the item being
replaced.
(ii) New Capital Items. If a new capital item is acquired
-----------------
which does not replace another capital item which was worn out,
has become obsolete, etc., then there shall be included in
Operating Costs for each Operating Year in which and after such
capital expenditure is made the Annual Charge-Off of such capital
expenditure. Notwithstanding, anything to the contrary herein
contained, with respect to a new (i.e. as opposed to replacement)
capital expenditure, such capital expenditure shall be included
in Operating Costs only if:
1. the new capital item being acquired is required by law which
becomes effective after the Execution Date of this Lease, or
2. The new capital item is reasonably projected to reduce
Operating Costs, but only to the extent of the projected
reduction on an annual basis.
(iii) Annual Charge-Off. "Annual Charge-Off" shall be
-----------------
defined as the annual amount of principal and interest payments
which would be required to repay a loan ("Capital Loan") in equal
monthly installments over the Useful Life, as hereinafter
defined, of the capital item in question on a direct reduction
basis at an annual interest rate equal co the Capital Interest
Rate, as hereinafter defined, where the initial principal balance
is the cost of the capital item in question. Notwithstanding the
foregoing, if Landlord reasonably concludes on the basis of
engineering estimates that a particular capital expenditure will
effect savings in Building operating expenses including, without
limitation, energy- related costs, and that such projected
savings will, on an annual basis ("Projected Annual Savings"),
exceed the Annual Charge-Off of such capital expenditure computed
as aforesaid, then and in such events, the Annual Charge-Off
shall be increased to an amount equal to the Projected Annual
Savings; and in such circumstances, the increased Annual Charge-
Off (in the amount of the Projected Annual Savings) shall be made
for such period of time as it would take to fully amortize the
cost of the capital item in question, together with interest
thereon at the Capital Interest Rate as aforesaid, in equal
monthly payments, each in the-amount of one-twelfth (1/12th) of
the Projected Annual Savings, with such payments being applied
first to interest and the balance to principal.
(iv) Useful Life. "Useful Life" shall be reasonably
-----------
determined by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of
acquisition of the capital item.
9
(v) Capital Interest Rate. "Capital Interest Rate" shall be
---------------------
defined as an annual rate of either one percentage point over the
XX Xxxx rate (Standard & Poor's corporate composite or, if
unavailable, its equivalent) as reported in the Financial press
at the time the capital expenditure is made or, if the capital
item is acquired through third-party, financing, then the actual
(including fluctuating) rate paid by Landlord in financing the
acquisition of such capital item.
(4) Specifically Included Categories of Operating Costs.
Operating Costs shall include, but not be limited to, the following:
Taxes (other than real estate taxes): Sales, Federal Social
Security, Unemployment and Old Age Taxes and contributions and State
Unemployment taxes and contributions accruing to and paid by the
Landlord on account of all employees of Landlord and/or Landlord's
managing, agent, who are employed in, about or on account of the
Building, except that taxes levied upon the net income of the Landlord
and taxes withheld from employees, and "Taxes" as deemed in Article
9.1(d) shall not be included herein.
Water: All charges and rates connected with water supplied to
the Building and related sewer use charges.
Heat and Air Conditioning: All charges connected with heat and
air conditioning, supplied to the Building.
Wages: Wages and cost of all employee benefits of all employees
of the Landlord and/or Landlord's managing agent who are employed in,
about or on account of the Building.
Cleaning: The cost of labor and material for cleaning the
Building, surrounding areaways and windows in the Building.
Elevator Maintenance: All expenses for or on account of the
upkeep and maintenance of all elevators in the Building.
Electricity: The cost of all electric current for the operation
of any machine, appliance or device used for the operation of the
premises and the Building, including the cost of electric current for
the elevators, lights, air conditioning and heating but not including
electric current which is paid for directly to the utility by any
user/tenant in the Building or for which any user/tenant pays a
separate charge for electric consumption. (If and so long as Tenant
is billed directly by the electric utility for its own consumption as
determined by its separate meter, or if Tenant pays the Electricity
Rent, then Operating Costs shall include only Building and public area
electric current consumption and not any demised premises electric
current consumption. Wherever separate metering is unlawful,
prohibited by utility company regulation or tariff or is otherwise
impracticable, relevant consumption figures for the purposes of this
Article 9 shall be determined by fair and reasonable allocations and
engineering estimates made by Landlord. Furthermore, if and to the
extent that the Operating-Cost-in-the-Base-Year figure shall include
any component representing the cost to the Landlord of electric
current supplied to any tenant's premises under so-called "rent-
inclusion" lease arrangements, then if such cost is eliminated from
Operating Costs in an Operating Year in accordance with the foregoing
provisions, the Figure for Operating Costs in the Base Year for the
purposes of this Article 9 shall likewise be reduced by the amount for
such cost component.)
Insurance, etc.: Fire, casualty, liability, rent loss and such
other insurance as may from time to time be required by lending,
institutions on First-class office buildings in the City or Town
wherein the Building is located and all other expenses customarily
incurred in connection with the operating and maintenance of First-
class office buildings in the City or Town wherein the Building
10
is located including, without limitation, insurance deductible amounts
and rental costs associated with the Building's management office.
9.2 Tax Excess. If in any Tax Period the Taxes exceed the Tax Base,
Tenant shall pay to Landlord Tenant's Proportionate Share of such excess, such
amount being hereinafter referred to as "Tax Excess". Tax Excess shall be due
thirty (30) days after the date of billing by Landlord. In implementation and
not in limitation of the foregoing, Tenant shall remit to Landlord pro rata
monthly installments on account of projected Tax Excess, calculated in good
faith by Landlord on the basis of the most recent Tax data or budget available.
If the total of such monthly remittances on account of any Tax Period is greater
than the actual Tax Excess for such Tax Period, Tenant may credit the difference
against the next installment of rental or other charges due to Landlord
hereunder, except that if such difference is determined after the end of the
term of the Lease, Landlord shall refund such difference to Tenant to the extent
that such difference exceeds any amounts then due from Tenant to Landlord. If
the total of such remittances is less than the actual Tax Excess for such Tax
Period, Tenant shall pay the difference to Landlord thirty (30) days after
billing therefor.
Appropriate credit against Tax Excess shall be given for any refund
obtained by reason of a reduction in any Taxes by the Assessors or the
administrative, judicial or other governmental agency responsible therefor. The
original computations, as well as reimbursement or payments of additional
charges, if any, or allowances, if any, under the provisions of this Article 9.2
shall be based on the original assessed valuations with adjustments to be made
at a later date when the tax refund, if any, shall be paid to Landlord by the
taxing authorities. Expenditures for legal fees and for other similar or
dissimilar expenses incurred in obtaining the tax refund may be charged against
the tax refund before the adjustments are made for the Tax Period.
9.3 Operating Expense Excess. If the Operating Costs in any Operating
Year exceed the Operating Costs in the Base Year, Tenant shall pay to Landlord
Tenant's Proportionate Share of such excess, such amount being hereinafter
referred to as "Operating Expense Excess." Operating Expense Excess shall be due
thirty (30) days after the date of billing by Landlord. In implementation and
not in limitation of the foregoing, Tenant shall remit to Landlord pro rata
monthly installments on account of projected Operating Expense Excess,
calculated in good faith by Landlord on the basis of the most recent Operating
Costs data or budget available. If the total of such monthly remittances on
account of any Operating Year is greater than the actual Operating Expense
Excess for such Operating Year, Tenant may credit the difference against the
next installment of rent or other charges due to Landlord hereunder, except that
if such difference is determined after the end of the term of the Lease,
Landlord shall refund such difference to Tenant to the extent that such
difference exceeds any amounts then due from Tenant to Landlord. If the total
of such remittances is less than actual Operating Expense Excess for such
Operating Year, Tenant shall pay the difference to Landlord thirty (30) days
after billing therefor.
9.4 Part Years. If the Term Commencement Date or the Termination Date
occurs in the middle of an Operating Year or Tax Period, Tenant shall be liable
for only that portion of the Operating Expense or Tax Excess, as the case may
be, in respect of such Operating Year or Tax Period represented by a fraction
the numerator of which is the number of days of the herein term which falls
within the Operating Year or Tax Period and the denominator of which is three
hundred sixty five (365), or the number of days in said Tax Period, as the case
may be.
9.5 Effect of Taking. In the event of any taking of the Building or the
Land under circumstances whereby this Lease shall not terminate under the
provisions of Article 20 then, for the purposes of determining Tax Excess, there
shall be substituted for the Tax Base originally provided for herein a fraction
of such Tax Base, the numerator of which fraction shall be the Taxes for the
First Tax Period subsequent to the condemnation or taking which takes into
account such condemnation or taking, and the denominator of which shall be the
Taxes for the last Tax Period prior to the condemnation or taking, which did not
take into account such condemnation or taking. Tenant's Proportionate Share
shall be adjusted appropriately to reflect the proportion of the premises
and/or the Building remaining after such taking.
9.6 Adjustment in Operating Costs. If the Building is not at least 95%
occupied during any Operating Year (including the Base Year) or if Landlord is
not supplying services to at least 95% of the Total Rentable Area of the
Building at any time during an Operating Year (including the Base Year),
Operating Costs shall
11
be determined as if the Building had been 95% occupied and Landlord had been
supplying services to 95% of the Total Rentable Area of the Building, during
that Operating Year.
9.7 Tenant's Audit Rights. Subject to the provisions of this
paragraph, Tenant shall have the right, at Tenant's cost and expense (except as
set forth on Paragraph (f) of this Article 9.7, to examine all documentation and
calculations prepared in the determination of Operating Expense Excess:
(a) Such documentation and calculation shall be made available to
Tenant at the offices where Landlord keeps such records during, normal business
hours within a reasonable time after Landlord receives a written request from
Tenant to make such examination.
(b) Tenant shall have the right to make such examination no more than
once in respect of any period in which Landlord has given Tenant a statement of
the actual amount of Operating Costs.
(c) Any request for examination in respect of any Operating Year may
be made no more than sixty (60) days after Landlord advises Tenant of the actual
amount of Operating Costs in respect of such period.
(d) Such examination may be made only by an independent certified
public accounting firm approved by Landlord, which approval shall not be
unreasonably withheld. Without limiting Landlord's approval rights, Landlord
may withhold its approval of any examiner of Tenant who is being paid by Tenant
on a continent fee basis.
(e) As a condition to performing any such examination, Tenant and its
examiners shall be required to execute and deliver to Landlord an agreement, in
form reasonably acceptable to Landlord, agreeing to keep confidential any
information which it discovers about Landlord or the Building in connection with
such examination. Without limiting the foregoing, such examiners shall be
required to agree that they will not represent any other tenant in the Building.
(f) Any dispute under this Article 9 shall be submitted to arbitration
in accordance with Article 29.5. If, after the performance of an examination by
Tenant under this Article 9.7, it is determined that there has been an
overpayment of Operating Expense Excess for the Operating Year in question, such
overpayment shall be credited against the next monthly installment(s) of Yearly
Rent and other charges due under the Lease, except that if such overpayment is
determined after the end of the term of the Lease, Landlord shall refund such
overpayment to Tenant to the extent that such overpayment exceeds any amounts
then due from Tenant to Landlord. If it is determined that such overpayment
exceeds ten (10%) percent of the amount of Operating Expense Excess actually due
from Tenant for the Operating Year in question, Landlord shall reimburse Tenant
for the reasonable out-of-pocket costs incurred in connection with such
examination. If it is determined that there is an underpayment of Operating
Expense Excess. Tenant shall, within thirty (30) days of such determination,
pay such underpayment to Landlord.
9.8 Survival. Any obligations under this Article 9 which shall not have
been paid at the expiration or sooner termination of the term of this Lease
shall survive such expiration for a period of eighteen (18) months and shall be
paid when and as the amount of same shall be determined to be due: (i) provided
such obligations under this Article 9 are billed to Tenant within eighteen (18)
months of the expiration of the term of the Lease, or (ii) if the Lease is
terminated prior to the expiration of the term for any reason other than the
default of tenant, provided such obligations under this Article 9 are billed to
Tenant within eighteen (18) months of the earlier termination of the term of the
Lease.
10. CHANGES OR ALTERATIONS BY LANDLORD
Landlord reserves the right, exercisable by itself or its nominee, at any
time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor or
otherwise affecting Tenant's obligations under this Lease, to make such changes,
alterations, additions, improvements, repairs or replacements in or to the
Building (including the premises) and the Fixtures and equipment thereof, as
well as in or to the street entrances, halls, passages, elevators, escalators,
and stairways thereof, as it may
12
deem necessary or desirable, and to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets, or other public parts of the Building, provided, however, that there be
no unreasonable obstruction of the right of access to, or unreasonable
interference with the use and enjoyment of, the premises by Tenant. Nothing
contained in this Article 10 shall be deemed to relieve Tenant of any duty,
obligation or liability of Tenant with respect to making any repair, replacement
or improvement or complying with any law, order or requirement of any
governmental or other authority. Landlord reserves the right to adopt and at any
time and from time to time to change the name or address of the Building.
Neither this Lease nor any use by Tenant shall give Tenant any right or easement
for the use of an door or any passage or any concourse connecting with any other
building or to any public convenience, and the use of such doors, passages and
concourses and of such conveniences may be regulated or discontinued at any time
and from time to time by Landlord without notice to Tenant and without affecting
the obligation of Tenant hereunder or incurring any liability to Tenant
therefor, provided, however, that there be no unreasonable obstruction of the
right of access to, or unreasonable interference with the use of the premises by
Tenant.
If at any time any windows of the premises are temporarily closed or
darkened for any reason whatsoever including but not limited to, Landlord's own
acts, Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor nor abatements of rent
nor shall the same release Tenant from its obligations hereunder nor constitute
an eviction.
11 FIXTURES, EQUIPMENT AND IMPROVEMENTS-REMOVAL BY TENANT
All fixtures, equipment, improvements and appurtenances attached to or
built into the premises prior to or during the term (other than Tenant's trade
fixtures and business equipment), whether by Landlord at its expense or at the
expense of Tenant (either or both) or by Tenant shall be and remain part of the
premises and shall not be removed by Tenant during or at the end of the term
unless Landlord otherwise elects to require Tenant to remove such fixtures,
equipment, improvements and appurtenances, in accordance with Articles 12 and/or
22 of the Lease. All electric, plumbing, heating and sprinkling systems,
fixtures and outlets, vaults, paneling, molding, shelving, radiator enclosures,
cork, rubber, linoleum and composition floors, ventilating, silencing, air
conditioning and cooling equipment, shall be deemed to be included in such
fixtures, equipment, improvements and appurtenances, if attached to or built
into the premises. Tenant's Removable Property, as set forth on Exhibit 8, and
where not built into the premises all carpets, drinking or tap water facilities,
removable electric fixtures, furniture, or trade fixtures or business equipment
or Tenant's inventory or stock in trade shall not be deemed to be included in
such fixtures, equipment improvements and appurtenances and may be, and upon the
request of Landlord will be, removed by Tenant and the cost of repairing any
damages to the premises or the Building arising from installation or such
removal shall be paid by Tenant.
12. ALTERATIONS AND IMPROVEMENTS BY TENANT
Tenant shall make no alterations, decorations, installations, removals,
additions or improvements (collectively, "Alterations") in or to the premises
without Landlord's prior written consent and then only those (i) which equal or
exceed the specifications and quantities provided in Exhibit 3, and (ii) made by
contractors or mechanics approved by Landlord. No installations or work shall
be undertaken or begun by Tenant until: (i) Landlord has approved written plans
and specifications and a time schedule for such work; (ii) Tenant has made
provision for either written waivers of liens from all contractors, laborers and
suppliers of materials for such installations or work, the filing of xxxx xxxxx
on behalf of such contractors, laborers and suppliers, or other appropriate
protective measures approved by Landlord; and (iii) if the cost of such work
exceeds $25,000.00 Tenant has procured appropriate surety payment and
performance bonds. No amendments or additions to such plans and specifications
shall be made without the prior written consent of Landlord. Landlord's consent
and approval required under this Article 12 shall not be unreasonably withheld,
conditioned or delayed. Landlord agrees to review and respond to Tenant's
request for consent to any alterations, additions or improvements within ten
(10) business days of Tenant's request for consent. If Landlord does not
consent to the same, it shall specify in writing the reasons for withholding
such consent. Landlord's approval is solely given for the benefit of Landlord
and neither Tenant nor any third party shall have the right to rely upon
Landlord's approval of Tenant's plans for any purpose whatsoever. Without
limiting the foregoing, Tenant shall be responsible for all elements of the
design of Tenant's plans (including, without limitation, compliance with law,
functionality of design, the structural integrity of the design, the
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configuration of the premises and the placement of Tenant's Furniture,
appliances and equipment), and Landlord's approval of Tenant's plans shall in no
event relieve Tenant of the responsibility for such design. Landlord shall have
no liability or responsibility for any claim, injury or damage alleged to have
been caused by the particular materials, whether building standard or non-
building, standard, appliances or equipment selected by Tenant in connection
with any work performed by or on behalf of Tenant in the premises including,
without limitation, furniture, carpeting, copiers, laser printers, computers and
refrigerators. Any such Alterations shall be done at Tenant's sole expense and
at such times and in such manner as Landlord reasonably may from time to time
designate. If Tenant shall make any Alterations then Landlord may elect to
require the Tenant at the expiration or sooner termination of the term of this
Lease to restore the premises to substantially the same condition as existed at
the Term Commencement Date, but Landlord shall not require Tenant to remove the
initial improvements shown on Exhibit 10 (if attached hereto), and Landlord
hereby consents to the installation of the same. If Tenant so requests in
writing, at the time that Tenant gives Landlord its written request for
Landlord's consent to any such Alterations, Landlord shall make such election at
the time that Landlord gives its written consent to such Alteration. Tenant
shall pay, as an additional charge, the entire increase in real estate taxes on
the Building which shall, at any time prior to or after the Term Commencement
Date, result from or be attributable to any Alteration to the premises made by
or for the account of Tenant in excess of the specifications and quantities
provided in Exhibit 3.
Notwithstanding anything to the contrary herein contained, Tenant shall
have the right, without obtaining Landlord's consent, to make interior
nonstructural alterations, additions, or improvements, provided however that
Tenant:
(i) shall give prior written notice to Landlord of any such
alterations, additions or improvements (other than decorative
work);
(ii) Tenant shall submit to Landlord plans for such alterations,
additions or improvements if Tenant utilizes plans for such
alterations, additions or improvements, and
(iii) that such alterations, additions or improvements shall not
materially, adversely affect any of the Building's systems, or
the ceiling of the premises.
13. TENANT'S CONTRACTORS--MECHANICS' AND OTHER LIENS--STANDARD OF TENANT'S
PERFORMANCE--COMPLIANCE WITH LAWS
Whenever Tenant shall make any alterations, decorations, installations,
removals, additions or improvements in or to the premises--whether such work be
done prior to or after the Term Commencement Date--Tenant will strictly observe
the following covenants and agreements:
(a) Tenant agrees that it will not, either directly or indirectly, use
any contractors and/or materials if their use will create any difficulty,
whether in the nature of a labor dispute or otherwise, with other contractors
and/or labor engaged by Tenant or Landlord or others in the construction,
maintenance and/or operation of the Building or any part thereof.
(b) In no event shall any material or equipment be incorporated in or
added to the premises, so as to become a fixture or otherwise a part of the
Building, in connection with any such alteration, decoration, installation,
addition or improvement which is subject to any lien, charge, mortgage or other
encumbrance of any kind whatsoever or is subject to any security interest or any
form of title retention agreement. No installations or work shall be undertaken
or be-undertaken by Tenant until (i) Tenant has made provision for written
waiver of liens from all contractors, laborers and suppliers of materials for
such installations or work, and taken other appropriate protective measures
approved by Landlord; and (ii) if the cost of the work exceeds $25,000, Tenant
has procured appropriate surety payment and performance bonds which shall name
Landlord as an additional obligee and has filed xxxx xxxx(s) (in jurisdictions
where available) on behalf of such contractors, laborers and suppliers. Any
mechanic's lien filed against the premises or the Building, for work claimed to
have been done for, or materials claimed to have been furnished to, Tenant shall
be discharged by Tenant within ten (10) days after Tenant receives notice
thereof, At Tenant's expense by filing the bond required by law or otherwise.
If Tenant fails so to discharge any lien, Landlord
14
may do so at Tenant's expense and Tenant shall reimburse Landlord for any
expense or cost incurred by Landlord in so doing within fifteen (15) days after
rendition of a xxxx therefor.
(c) All installations or work done by Tenant shall be at its own
expense and shall at all times comply with (i) laws, rules, orders and
regulations of governmental authorities having jurisdiction thereof, (ii)
orders, rules and regulations of any Board of Fire Underwriters, or any other
body hereafter constituted exercising similar functions, and governing insurance
rating bureaus; (iii) Rules and Regulations of Landlord; and (iv) in all
material respects plans and specifications prepared by and at the expense of
Tenant theretofore submitted to and approved by Landlord.
(d) Tenant shall procure all necessary permits before undertaking any
work in the premises; do all of such work in a good and workmanlike manner,
employing materials of good quality and complying with all governmental
requirements; and defend, save harmless, exonerate and indemnify Landlord from
all injury, loss or damage to any person or property occasioned by or growing
out of such work, except to the extent caused by the negligence or willful
misconduct of Landlord, its agents, employees or contractors. Tenant shall
cause contractors employed by Tenant to carry Worker's Compensation Insurance in
accordance with statutory requirements, Automobile Liability Insurance and,
naming Landlord as an additional insured, Commercial General Liability Insurance
covering such contractors on or about the premises in the amounts stated in
Article 15 hereof or in such other reasonable amounts as Landlord shall require
and to submit certificates evidencing such coverage to Landlord prior to the
commencement of such work.
14. REPAIRS BY TENANT--FLOOR LOAD
14.1 Repairs by Tenant. Tenant shall keep all and singular the premises
neat and clean (including periodic rug shampoo and waxing of tiled floors and
cleaning of blinds and drapes) and in such repair, order and condition as the
same are in on the Term Commencement Date or may be put in during the term
hereof, reasonable use and wearing thereof and damage by fire or by other
casualty excepted. Tenant shall be solely responsible for the proper
maintenance of all equipment and appliances operated by Tenant, including,
without limitation, copiers, laser printers, computers and refrigerators .
Except for damage caused by fire or other casualty, Tenant shall make, as and
when needed as a result of misuse by, or neglect or improper conduct of, Tenant
or Tenant's servants, employees, agents, contractors, invitees, or licensees or
otherwise, all repairs in and about the premises necessary to preserve them in
such repair, order and condition, which repairs shall be in quality and class
equal to the original work. If Tenant fails to repair the same within ten (10)
days after Landlord requests that Tenant perform such repairs, Landlord may
elect, at the expense of Tenant to make any such repairs or to repair any damage
or injury to the Building or the premises caused by moving property of Tenant in
or out of the Building, or by installation or removal of furniture or other
property, or by misuse by, or neglect, or improper conduct of, Tenant or
Tenant's servants, employees, agents, contractors, or licensees.
14.2 Floor Load-Heavy Machinery. Tenant shall not place a load upon any
floor of the premises exceeding the floor load per square foot of area which
such floor was designed to carry and which is allowed by law. Landlord reserves
the right to prescribe the weight and position of all heavy business machines
and mechanical equipment, including safes, which shall be placed so as to
distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient in
Landlord's judgment to absorb and prevent vibration, noise and annoyance. Tenant
shall not move any safe, heavy machinery, heavy equipment freight, bulky matter
or fixtures into or out of the Building without Landlord's prior written
consent, which consent shall not be unreasonably withheld. If such safe,
machinery, equipment, freight, bulky matter or fixtures requires special
handling, Tenant agrees to employ only persons holding a Master Rigger's License
to do said work, and that all work in connection therewith shall comply with
applicable laws and regulations. Any such moving shall be at the sole risk and
hazard of Tenant and Tenant will defend, indemnify and save Landlord harmless
against and from any liability, loss, injury, claim or suit resulting directly
or indirectly from such moving. Proper placement of all such business machines,
etc., in the premises shall be Tenant's responsibility.
15. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION
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15.1 General Liability Insurance. Tenant shall procure, and keep in
force and pay for Commercial General Liability Insurance insuring Tenant on an
occurrence basis against all claims and demands for personal injury liability
(including, without limitation, bodily injury, sickness, disease, and death) or
damage to property which may be claimed to have occurred from and after the time
Tenant and/or its contractors enter the premises in accordance with Article 4 of
this Lease, of not less than Two Million ($2,000,000) Dollars in the event of
personal injury to any number of persons or damage to , property, arising out of
any one occurrence, and from time to time thereafter shall be not less than such
higher amounts, if procurable, as may be reasonably required by Landlord and are
customarily carried by responsible similar tenants in the City or Town wherein
the Building is located.
15.2 Certificates of Insurance. Such insurance shall be effected with
insurers reasonably approved by Landlord, authorized to do business in the State
wherein the Building is situated under valid and enforceable policies wherein
Tenant names Landlord and Landlord's managing agent as additional insureds.
Such insurance shall provide that it shall not be canceled or modified without
at least thirty (30) days' prior written notice to each insured named therein.
On or before the time Tenant and/or its contractors enter the premises in
accordance with Articles 4 and 14 of this Lease and thereafter not less than
fifteen (15) days prior to the expiration date of each expiring policy, original
copies of the policies provided for in Article 15.1 issued by the respective
insurers, or certificates of such policies setting forth in full the provisions
thereof and issued by such insurers shall be delivered by Tenant to Landlord and
certificates as aforesaid of such policies shall upon request of Landlord, be
delivered by Tenant to the holder of any mortgage affecting the premises.
15.3 General. Tenant will save Landlord, its agents and employees,
harmless and will exonerate, defend and indemnify Landlord, its agents and
employees, from and against any and all claims, liabilities or penalties
asserted by or on behalf of any person, firm, corporation or public authority
arising from the Tenant's breach of the Lease or:
(a) On account of or based upon any injury to person, or loss of or
damage to property, sustained or occurring on the premises on account of or
based upon the act, omission, fault, negligence or misconduct of any person
whomsoever (except to the extent the same is caused by Landlord, its agents,
contractors or employees or other tenants of the Building);
(b) On account of or based upon any injury to person, or loss of or
damage to property, sustained or occurring elsewhere (other than on the
premises) in or about the Building (and, in particular, without limiting the
Generality of the foregoing, on or about the elevators, stairways, public
corridors, sidewalks, concourses, arcades, malls, galleries, vehicular tunnels,
approaches, areaways, roof, or other appurtenances and facilities used in
connection with the Building or premises) arising out of the negligence or
misconduct of Tenant, its agents, employees or contractors, except to the extent
the same is caused by Landlord, its agents employees or contractors; and
(c) On account of or based upon (including monies due on account of)
any work or thing whatsoever done (other than by Landlord or its contractors, or
agents or employees of either) on the premises during the term of this Lease and
during the period of time, if any, prior to the Term Commencement Date that
Tenant may have been given access to the premises, except to the extent the same
is caused by Landlord, its agents, employees or contractors; and
(d) Tenant's obligations under this Article 15.3 shall be insured
either under the Commercial General Liability Insurance required under Article
15.1, above, or by a contractual insurance rider or other coverage; and
certificates of insurance in respect thereof shall be provided by Tenant to
Landlord upon request.
15.4 Property of Tenant. In addition to and not in limitation of the
foregoing, Tenant covenants and agrees that, to the maximum extent permitted by
law, all merchandise, furniture, fixtures and property of every kind, nature and
description related or arising out of Tenant's leasehold estate hereunder, which
may be in or upon the premises or Building, in the public corridors, or on the
sidewalks, areaways and approaches adjacent thereto, shall be at the sole risk
and hazard of Tenant, and that if the whole or any part thereof shall be
damaged, destroyed, stolen or removed from any cause or reason whatsoever no
part of said damage or loss shall be charged to, or borne by, Landlord, unless,
subject to Article 19 hereof, such damage or loss is due to the negligence or
willful misconduct of
16
Landlord or Landlord's agents, employees or contractors, in which case Landlord
shall bear loss or damage only to "ordinary office property" (as hereinafter
defined). For the purpose of this Article 15.4, "ordinary office property" shall
mean merchandise, furniture, and other tangible personal property of the kind
and quantity which may customarily be expected to be found within comparable
business offices in the greater Boston area, and excluding any unusually
valuable or exotic property, works of art, and the like.
15.5 Bursting of Pipes, etc. Landlord shall not be liable for any injury
or damage to persons or property resulting, from fire, explosion, falling
plaster, steam, gas, air contaminants or emissions, electricity, electrical or
electronic emanations or disturbance, water, rain or snow or leaks from any part
of the Building or from the pipes, appliances, equipment or plumbing works or
from the roof, street or subsurface or from any other place or caused by
dampness, vandalism, malicious mischief or by any other cause of whatever
nature, unless caused by or due to the negligence, or willful misconduct of
Landlord, its agents, servants or employees and then, where notice and an
opportunity to cure are appropriate (i.e., where Tenant has an opportunity to
know or should have known of such condition sufficiently in advance of the
occurrence of any such injury or damage resulting therefrom as would have
enabled Landlord to prevent such damage or loss had Tenant notified Landlord of
such condition), after (i) notice to Landlord of the condition claimed to
constitute negligence and (ii) the expiration of a reasonable time after such
notice has been received by Landlord without Landlord having taken all
reasonable and practicable means to cure or correct such condition; and pending
such cure or correction by Landlord. Tenant shall take all reasonably, prudent
temporary measures and safeguards to prevent any injury, loss or damage to
persons or property. In no event shall landlord be liable for any loss, the
risk of which is covered by Tenant's insurance or is required to be so covered
by this Lease, nor shall Landlord or its agents be liable for any such damage
caused by other tenants or persons in the Building or caused by operations in
construction of any private, public, or quasi-public work; nor shall Landlord be
liable for any latent defect in the premises or in the Building; provided
however, that the foregoing shall not relieve Landlord of its obligation to
perform maintenance and repairs pursuant to Article 8.7. Landlord shall
cooperate with Tenant in such manner, as Tenant shall reasonably request in the
event that Tenant suffers any loss or damage by reason of any such latent defect
so that Tenant shall be able to prosecute any claim which it may have against
the contractor and/or material supplier responsible for such latent defect.
Without limiting the forgoing, Landlord shall assign its right to Tenant against
any such contractor and/or material supplier, if necessary to enable Tenant to
prosecute its claim against any such contractor and/or material supplier.
15.6 Repairs and Alterations--Diminution of Rental Value. A. Except
as otherwise provided in Article 18, there shall be no allowance to Tenant for
diminution of rental value and, except as set forth in Article 15.4 and in
Paragraph E of this Article 15.6, no liability on the part of Landlord by reason
of inconvenience, annoyance or injury to Tenant arising from any repairs,
alterations, additions, replacements or improvements made by Landlord, or any
related work, Tenant or others in or to any portion of the Building or premises
or any property adjoining the Building, or in or to fixtures, appurtenances, or
equipment thereof, or for failure of Landlord or others to make any repairs,
alterations, additions or improvements in or to any portion of the Building, or
of the premises, or in or to the fixtures, appurtenances or equipment thereof.
Nothing in this Article 15.6 shall limit Tenant's right to obtain injunctive
relief against Landlord not involving the payment of money to Tenant for the
purpose of requiring Landlord to comply with its obligations under this Lease.
B. Notwithstanding anything to the contrary in this Lease contained, if
due to any such repairs, alterations, replacements, or improvements made by
Landlord or if due to Landlord's failure to make any repairs, alterations, or
improvements required to be made by Landlord, any portion of the premises
becomes untenantable so that for the Premises Untenantability Cure Period, as
hereinafter defined, the continued operation in the ordinary course of Tenant's
business is materially adversely affected, then, provided that Tenant ceases to
use the affected portion of the premises during the entirety of the Premises
Untenantability Cure Period by reason of such untenantability, and that such
untenantability and Landlord's inability to cure such condition is not caused by
the fault or neglect of Tenant or Tenant's agents, employees or contractors,
Yearly Rent, Operating Expense Excess and Tax Excess shall thereafter be abated
in proportion to such untenantability until the day such condition is completely
corrected. For the purposes hereof, the "Premises Untenantability Cure Period"
shall be defined as five (5) consecutive business days after Landlord's receipt
of written notice from Tenant of the condition causing untenantability in the
premises, provided however, that the Premises Untenantability Cure Period shall
be fifteen (15) consecutive business days after Landlord's receipt of written
notice from Tenant of such condition causing
17
untenantability in the premises if either the condition was caused by causes
beyond Landlord's control or Landlord is unable to cure such condition as the
result of causes beyond Landlord's control.
C. Notwithstanding anything to the contrary herein contained, if due to
such repairs, alterations, replacements or improvements made by Landlord or if
due to Landlord's failure to make any repairs, alterations or improvements
required to be made by Landlord, any material portion of the premises becomes
untenantable for a period of ninety (90) consecutive days after Landlord's
receipt of written notice of such condition from Tenant, then provided that
Tenant ceases to use the affected portion of the premises during the entire
period of such untenantability, such untenantability and Landlord's inability to
cure such condition is not caused by the fault or neglect of Tenant, or Tenant's
agents, employees or contractors, then Tenant may terminate this Lease by giving
Landlord written notice as follows:
(a) Said notice shall be given after said ninety (90) day period.
(b) Said notice shall set forth an effective date which is not
earlier than ten (10) days after Landlord receives said notice.
(c) If said condition is remedied on or before said effective data,
said notice shall have no further force and effect.
(d) If said condition is not remedied on or before said effective
date for any reason other then Tenants fault, as aforesaid, the
Lease shall terminate as of said effective date, and the Yearly
Rent, escalations and other charges due under the Lease shall be
apportioned as of said effective date.
D. The provisions of Paragraphs B and C of this Article 15.6 shall not
apply in the event of untenantability caused by fire or other casualty, or
taking (see Articles 18 and 20).
E. Subject to the provisions of Article 26(c), the provisions of
Paragraph A of this Article 15.6 shall not limit Tenant's right to recover any
direct damages suffered by Tenant to the extent caused by Landlord's failure to
make any repairs or perform any maintenance which Landlord is required to
perform pursuant to the provisions of the Lease or based upon the performance by
any work by Landlord in or about the Premises, provided that, except as set
forth in Article 15.6, in no event shall Landlord's liability to Tenant on
account of such damages exceed Twenty-Five Thousand ($25,000.00) Dollars based
upon any such condition.
15.7 Landlord's Indemnity of Tenant. Landlord, subject to the
limitations on Landlord's liability expressly contained elsewhere in this Lease,
agrees to hold Tenant harmless and to defend, exonerate and indemnify Tenant
from and against any and all claims, liabilities, or penalties asserted by or on
behalf of any third party (i.e. any person, firm, corporation or public
authority) for damage to property or injuries or death to persons on account of
or based upon any injury to persons, or loss of or damage to property, sustained
or occurring in or about the Building to the extent arising from the negligence
or willful misconduct of Landlord or Landlord's agents, employees or
contractors.
15.8 Landlord's Insurance. During the term of the Lease, Landlord shall
secure and carry a policy of Commercial General Liability insurance covering
Landlord on an occurrence basis in an amount not less than $1,000,000.00 for
claims based on bodily injury (including death), personal injury and property
damage relating to the Building and the Land. Tenant's liability insurance
shall be primary to Landlord's liability insurance with respect to any claims
covered by Tenant's indemnification obligations under Article 15.3.
16. ASSIGNMENT, MORTGAGING AND SUBLETTING
A. Tenant covenants and agrees that neither this Lease nor the term and
estate hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred, voluntarily, by
operation of law or otherwise, and that neither the premises, nor any part
thereof will be encumbered in any manner by reason of any act or omission on the
part of Tenant, or used or occupied, or permitted to be used or occupied, or
18
utilized for desk space or for mailing privileges, by anyone other than Tenant,
or for any use or purpose other than as stated in Exhibit 1, or be sublet,
without obtaining Landlord's prior written consent. Subject to Paragraph B of
this Article 16, Landlord agrees that it will not unreasonably withhold
condition, or delay its consent to any sublease of the premises, or any portion
thereof, or an assignment of Tenant's interest in this Lease, to a Qualified
Transferee, as defined in Paragraph B of Article 16. If Tenant is in default of
its obligations, after the giving of any applicable notice and the expiration of
any applicable grace periods, under the Lease at the time that it makes the
aforesaid offer to Landlord, such default shall be deemed to be a "reasonable"
reason for Landlord withholding its consent to any proposed subletting or
assignment. Notwithstanding the foregoing, it is hereby expressly understood
and agreed however, if Tenant is a corporation, that the assignment or transfer
of this Lease, and the term and estate hereby granted to any entity or
corporation with or into which Tenant is merged or with which Tenant is
consolidated which entity or corporation immediately after such merger or
consolidation would have a net worth at least equal to that of Tenant
immediately prior to such merger or consolidation (such corporation being
hereinafter called "Permitted Successor), shall not be deemed to be prohibited
hereby if, and upon the express condition that Permitted Successor and Tenant
shall promptly execute, acknowledge and deliver to Landlord an agreement in form
and substance reasonably satisfactory to Landlord whereby Permitted Successor
shall agree to be independently bound by and upon all the covenants, agreements,
terms, provisions and conditions set forth in this Lease on the part of Tenant
to be performed, and whereby Permitted Successor shall expressly agree that the
provisions of this Article 16 shall, notwithstanding such assignment or
transfer, continue to be binding, upon it with respect to all future assignments
and transfers.
B. Notwithstanding anything to the contrary in the Lease contained:
1. Tenant shall, prior to offering or advertising for the purpose of
entering into a Recapture Transaction, as hereinafter defined,
give Landlord a Recapture Offer, as hereinafter defined. A
"Recapture Transaction" shall be defined as any of the following:
(i) a sublease of a portion of the premises for the entirety of
the balance of the then current term of the Lease, or (ii) an
assignment of Tenant's interest in this Lease.
2. For the purposes hereof a "Recapture Offer" shall be defined as a
notice in writing from Tenant to Landlord which:
(a) States that Tenant desires to sublet the premises, or a
portion thereof, or to assign its interest in this Lease.
(b) Identifies the affected portion of the premises ("Recapture
Premises").
(c) Identifies the period of time ("Recapture Period) during
which Tenant proposes to sublet the Recapture Premises or to
assign its interest in the Lease.
(d) Offers to Landlord to terminate the Lease in respect of the
Recapture Premises.
3. Landlord shall have fifteen (15) business days to accept a
Recapture Offer. If Landlord does not timely give written notice
to Tenant accepting a Recapture Offer, then Landlord agrees that
it will not unreasonably withhold or delay its consent to a
sublease of the Recapture Premises for the Recapture Period, or
an assignment of Tenant's interest in the Lease, as the case may
be, to a Qualified Transferee, as hereinafter defined.
4. For the purposes hereof, a "Qualified Transferee" shall be
defined as a person, firm or corporation which, in Landlord's
reasonable opinion:
(a) is financially responsible and of good reputations and
(b) is engaged in a business which is a permitted use as set
forth on Exhibit 1, or is engaged in a business, the
functional aspects of which, with respect to the premises,
are similar to the use of other premises made by other
office space
19
tenants in the Building. Landlord shall, within thirty (30)
days after Landlord receives Tenant's request for Landlord's
determination as to whether a proposed subtenant or assignee
is a Qualified Transferee, advise Tenant in writing, as to
whether such proposed subtenant or assignee is a Qualified
Transferee.
5. Notwithstanding anything to the contrary in this Paragraph B
contained:
(a) If Tenant is in default, after the giving of any applicable
notice and the expiration of any applicable grace period, of
its obligations under the Lease at the time that it makes
the aforesaid offer to Landlord, such default shall be
deemed to be a "reasonable" reason for Landlord withholding
its consent to any proposed subletting or assignment; and
(b) If, with respect to a Recapture Transaction, Tenant does not
enter into a sublease with a subtenant (or an assignment to
an assignee, as the case may be) approved by Landlord, as
aforesaid, on or before the date which is one hundred (100)
days after the earlier of: (x) the expiration of said
fifteen (15) business day period, or (y) the dare that
Landlord notifies Tenant that Landlord will not accept
Tenant's offer to terminate the Lease, then Landlord shall
have the right arbitrarily to withhold its consent to any
subletting or assignment proposed to be entered into by
Tenant after the expiration of said one hundred (100) day
period unless Tenant again offers, in accordance with this
Paragraph B, to terminate in respect of the portion of the
premises proposed to be sublet (or in respect of the
entirety of the premises, as the case may be). If Tenant
shall make any subsequent offers to terminate the Lease
pursuant to this Paragraph B, any such subsequent offers
shall be treated in all respects as if it is Tenant's first
offer to terminate the Lease pursuant to this Paragraph B,
provided that the period of time Landlord shall have in
which to accept or reject such subsequent offer shall be
thirty (30) days.
6. No subletting or assignment shall relieve Tenant of its primary
obligation as party-Tenant hereunder, nor shall it reduce or
increase Landlord's obligations under the Lease.
7. Tenant shall pay to Landlord a review fee ("Consent Review Fee")
in the amount of Five Hundred and 00/100 ($500.00) Dollars for
any request by Tenant to Landlord for consent to sublease or
assignment at the time that Tenant gives a Recapture Offer to
Landlord.
C. If Tenant is an individual who uses and/or occupies the premises with
partners, or if Tenant is a partnership, then:
(i) Each present and future partner shall be personally bound by
and upon all of the covenants, agreements, terms, provisions and conditions
set forth in this Lease on the part of Tenant to be performed; and
(ii) In confirmation of the foregoing, Landlord may (but without
being required to do so) request (and Tenant shall duty comply) that
Tenant, at the time that Tenant admits any new partner to its partnership,
shall require each such new partner to execute an agreement in form and
substance satisfactory to Landlord whereby such new partner shall agree to
be personally bound by and upon all of the covenants, agreements, terms,
provisions and conditions of this Lease on the part of Tenant to be
performed, without regard to the time when such new partner is admitted to
partnership or when any obligations under any such covenants, etc., accrue.
D. The listing of any name other than that of Tenant, whether on the
doors of the premises or on the Building directory, or otherwise, shall not
operate to vest in any such other person, firm or corporation any right or
interest in this Lease or in the premises or be deemed to effect or evidence any
consent of Landlord, it being
20
expressly understood that any such listing is a privilege extended by Landlord
revocable at will by written notice to Tenant.
E. If (i) this Lease be assigned, or (ii) if the premises or any part
thereof be sublet or occupied by anybody other than Tenant, and Tenant is in
default beyond any applicable notice and cure periods, then, in either of such
events, Landlord may, at any time and from time to time, collect rent and other
charges from the assignee, subtenant or occupant, and apply the net amount
collected to the rent and other charges herein reserved then due and thereafter
becoming due, but no such assignment subletting occupancy or collection shall be
deemed a waiver of this covenant or the acceptance of the assignee, subtenant or
occupant as a tenant, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained. Any consent by
Landlord to a particular assignment or subletting shall not in any way diminish
the prohibition stated in the first sentence of this Article 16 or the
continuing liability of the Tenant named on Exhibit 1 as the party Tenant under
this Lease. No assignment or subletting shall affect the purpose for which the
premises may be used as stated in Exhibit 1.
F. Notwithstanding anything to the contrary herein contained, Tenant
shall have the right, without obtaining Landlord's consent and without giving
Landlord a Recapture Offer, to assign its interest in this Lease and to sublease
the premises, or any portion thereof, to an Affiliated Entity, as hereinafter
defined, so long as such entity remains in such relationship to Tenant, and
provided that prior to or simultaneously with such assignment or sublease, such
Affiliated Entity executes and delivers to Landlord an Assumption Agreement, as
hereinabove defined. For the purposes hereof, an "Affiliated Entity" shall be
defined as any entity which is controlled by, is under common control with, or
which controls Tenant. For the purposes hereof, control shall mean the direct
or indirect ownership of more than fifty (50%) percent of the beneficial
interest of the entity in question.
G. In the event of an assignment of this Lease or a sublease of the
premises or any portion thereof to anyone other than an Affiliated Entity or a
Permitted Successor, Tenant shall pay to Landlord fifty (50%) percent of any Net
Sublease profits (as defined below), payable in accordance with the following.
In the case of an assignment of this Lease, "Net Sublease Profit": (1) shall be
defined as a lump sum in the amount (if any) by which any consideration paid by
the assignee in consideration of or as an inducement to Tenant to make said
assignment exceeds the reasonable attorneys' fees, construction costs and
brokerage fees incurred by Tenant in order to effect such assignment
(collectively, "Sublease Expenses"), and (2) be payable concurrently with the
payment to be made by the assignee to Tenant. In the case of a sublease, "Net
Sublease Profit", (3) shall be defined as a monthly amount equal to the amount
by which the sublease rent and other charges payable by the subtenant to Tenant
under the sublease exceed the sum of the rent and other charges payable under
this Lease for the premises or allocable to the sublet portion thereof, plus a
monthly amount equal to the Sublease Expenses divided by the number of months in
the term of the sublease, and (4) shall be payable on a monthly basis
concurrently with the subtenant's payment of rent to Tenant under the sublease.
17. MISCELLANEOUS COVENANTS
Tenant covenants and agrees as follows:
17.1 Rules and Regulations. Tenant will faithfully observe and comply
with the Rules and Regulations, if any, annexed hereto and such other and
further reasonable Rules and Regulations as Landlord hereafter at any time or
from time to time may make and may communicate in writing, to Tenant, which in
the reasonable judgment of Landlord shall be necessary for the reputation,
safety, care or appearance of the Building, or the preservation of good order
therein, or the operation or maintenance of the Building, or the equipment
thereof, or the comfort of tenants or others in the Building, provided, however,
that in the case of any conflict between the provisions of this Lease and any
such regulations, the provisions of this Lease shall control, and provided
further that nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease as against any other tenant
and Landlord shall not be liable to Tenant for violation of the same by any
other tenant, its servants, employees, agents, contractors, visitors, invitees
or licensees, but Landlord shall use reasonable efforts to enforce the same
against other tenants in the Building, upon request of Tenant if such violation
of any such Rules and Regulations materially adversely affects Tenant's use of
the premises.
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17.2 Access to Premises-Shoring. Tenant shall: (i) permit Landlord to
erect, use and maintain pipes, ducts and conduits in and through the premises,
provided the same do not reduce the floor area or materially adversely affect
the appearance thereof, (ii) upon prior oral notice (except that no notice shall
be required in emergency situations), permit Landlord and any mortgagee of the
Building or the Building and land or of the interest of Landlord therein, and
any lessor under any around or underlying lease, and their representatives, to
have free and unrestricted access to and to enter upon the premises at all
reasonable hours for the purposes of inspection or of making repairs,
replacements or improvements in or to the premises or the Building or equipment
(including, without limitation, sanitary, electrical, heating, air conditioning
or other systems) or of complying with all laws, orders and requirements of
governmental or other authority or of exercising any right reserved to Landlord
by this Lease (including the right during the process of any such repairs,
replacements or improvements or while performing work and furnishing materials
in connection with compliance with any such laws, orders or requirements to take
upon or through, or to keep and store within, the premises all necessary
materials, tools and equipment); and (iii) permit Landlord, at reasonable times,
to show the premises during ordinary business hours to any existing or
prospective mortgagee, ground lessor, purchaser, or assignee of any mortgage, of
the Building or of the Building, and the land or of the interest of Landlord
therein, and during the period of 12 months next preceding the Termination Date
to any person contemplating the leasing of the premises or any part thereof. If
Tenant shall not be personally present to open and permit art entry into the
premises at any time when for any reason an entry therein shall be necessary or
permissible, Landlord or Landlord's agents may enter the same by a master key,
or may forcibly enter the same, without, subject to Article 15.4, rendering
Landlord or such agents liable therefor (if during such entry Landlord or
Landlord's agent shall accord reasonable case to Tenant's property), and without
in any manner affecting the obligations and covenants of this Lease. Provided
that Landlord shall incur no additional expense thereby, Landlord shall exercise
its rights of access to the premises permitted under any of the terms and
provisions of this Lease in such manner and at such times as to minimize to the
extent practicable interference with Tenant's use and occupation of the
premises. If an excavation shall be made upon land adjacent to the premises or
shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the premises for the
purpose of doing such work as said person shall deem necessary to preserve the
Building from injury or damage and to support the same by proper foundations
without any claims for damages or indemnity against Landlord, or diminution or
abatement of rent.
17.3 Accidents to Sanitary and Other Systems. Tenant shall give to
Landlord prompt notice of any fire or accident in the premises within or passing
through the premises and of any damage to, or defective condition in, any part
or appurtenance of the Building including, without limitation, sanitary,
electrical, ventilation, heating and air conditioning or other systems located
in, or passing through, the premises of which Tenant has knowledge. Except as
otherwise provided in Articles 18 and 20, and subject to Tenant's obligations in
Article 14, such damage or defective condition shall be remedied by Landlord
with reasonable diligence, but if such damage or defective condition was caused
by Tenant or by the employees, licensees, contractors or invitees of Tenant, the
cost to remedy the same shall be paid by Tenant, subject to Article 19. In
addition, all reasonable costs incurred by Landlord in connection with the
investigation of any notice given by Tenant shall be paid by Tenant if the
reported damage or defective condition was caused by Tenant or by the employees,
licensees, contractors, or invitees of Tenant. Subject to Articles 8.8 and
15.6: (i) Tenant shall not be entitled to claim any damages arising from any
such damage or defect unless the same shall have been occasioned by the
negligence or willful misconduct of the Landlord, its agents, servants,
employees, or contractors, and (ii) Tenant shall not be entitled to claim any
eviction from the premises arising from such damage or defect unless the same
shall have been occasioned by the negligence or willful misconduct of the
Landlord, its agents, servants, employees, or contractors, and shall not, after
notice to Landlord of the condition claimed to constitute negligence, have been
cured or corrected within a reasonable time after such notice has been received
by Landlord.
17.4 Signs, Blinds and Drapes.
(a) Tenant shall put no signs in any part of the Building. No signs
or blinds may be put on or in any window or elsewhere if visible from the
exterior of the Building, nor may the building standard drapes or blinds be
removed by Tenant. Notwithstanding the foregoing, Tenant shall have the right,
during the term of the Lease, to use up to Tenant's proportionate share of the
Building directory to list Tenant's name and the names of Tenant's employees and
Landlord shall initially install the same at its cost. The initial listing of
Tenant's name and the names of Tenant's employees shall be at Landlord's cost
and expense. Any changes, replacements or additions
22
by Tenant to such directory shall be at Tenant's sole cost and expense. In
addition, Landlord shall, at its cost, install a Building standard tenant
identification sign at the entrance door of Tenant's premises. If Tenant desires
to install a tenant identification sign at the entrance door of Tenant's
premises which is in excess of building standard, Landlord shall, provided that
Landlord has consented to such signage (which consent shall not be unreasonably
withheld), install such signage and Tenant shall pay to Landlord the amount by
which the cost of such signage incurred by Landlord exceeds the cost which
Landlord would have incurred had Landlord installed Building, standard tenant
identification sign for Tenant.
(b) Tenant may hang its own drapes, provided that they shall not in
any way interfere with the building standard drapery or blinds or be visible
from the exterior of the Building and that such drapes are so hung and installed
that when drawn, the building standard drapery or blinds are automatically also
drawn. Any signs or lettering in the public corridors or on the doors shall
conform to Landlord's building standard design.
(c) Neither Landlord's name, nor the name of the Building or any
Center, Office Park or other Park of which the Building is a part, or the name
of any other structure erected therein shall be used without Landlord's consent
in any advertising material (except on business stationery or as an address in
advertising matter), nor shall any such name, as aforesaid be used in any
undignified, confusing, detrimental or misleading manner.
17.5 Estoppel Certificate. Tenant shall at any time and from time to
time upon not less than fifteen (15) days' prior notice by Landlord to Tenant,
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), and the dates to which the Yearly Rent and other
charges have been paid in advance, if any, stating whether or not Landlord is in
default in performance of any covenant, agreement, term, provision or condition
contained in this Lease and, if so, specifying each such default and such other
facts as Landlord may reasonably request, it being intended that any such
statement delivered pursuant hereto may be relied upon by any prospective
purchaser of the Building or of the Building and the land or of any interest of
Landlord therein, any mortgagee or prospective mortgagee thereof, any lessor or
prospective lessor thereof, any lessee or prospective lessee thereof, or any
prospective assignee of any mortgagee thereof. Time is of the essence in
respect of any such requested certificate, Tenant hereby acknowledging the
importance of such certificates in mortgage financing arrangements, prospective
sale and the like.
17.6 Prohibited Materials and Property. Tenant shall not bring, or
permit to be brought or kept in or on the premises or elsewhere in the Building
(i) any inflammable, combustible or explosive fluid, material, chemical or
substance including, without limitation, any hazardous substances as defined
under Massachusetts General Laws chapter 21E, the Federal Comprehensive
Environmental Response Compensation and Liability Act (CERCLA), 42 USC (S)9601
et. seq., as amended, under Section 3001 of the Federal Resource Conservation
and Recovery Act of 1976, as amended, or under any regulation of any
governmental authority regulating environmental or health matters (except for
standard office supplies stored in proper containers), (ii) any materials,
appliances or equipment (including, without limitation, materials, appliances
and equipment selected by Tenant for the construction or other preparation of
the premises and furniture and carpeting) which pose any danger to life, safety
or healthy or may cause damage, injury or death; or (iii) any unique, unusually
valuable, rare or exotic property, work of art or the like unless the same is
fully insured under all-risk coverage. Nor shall Tenant cause or permit any
potentially harmful air emissions, odors of cooking or other processes, or any
unusual or other objectionable odors or emissions to emanate from or permeate
the premises.
17.7 Requirements of Law-Fines and Penalties. Tenant at its sole expense
shall comply with all laws, rules, orders and regulations (the "Laws"),
including, without limitation, all energy-related requirements, of Federal,
Stare, County and Municipal Authorities and with any direction of any public
officer or officers, pursuant to law, which shall impose any duty upon Landlord
or Tenant with respect to or arising out of Tenant's particular use or occupancy
of the premises. Tenant shall reimburse and compensate Landlord for all
expenditures made by, or damages or fines sustained or incurred by, Landlord due
to nonperformance or noncompliance with or breach or failure to observe any
item, covenant, or condition of this Lease upon Tenant's part to be kept,
observed, performed or complied with. If Tenant receives notice of any
violation of law, ordinance, order or regulation applicable to the premises, it
shall give prompt notice thereof to Landlord. Landlord shall comply with any
laws, rules, orders, regulations energy requirements and with any direction of
any public office or officer relating to the maintenance or
23
operation of the Building as an office building, and the costs so incurred by
Landlord shall be included in Operating Costs in accordance with the provisions
of Article 9.
17.8 Tenant's Acts-Effect an Insurance. Tenant shall not do or permit
to be done any act or thing upon the premises or elsewhere in the Building which
will invalidate or be in conflict with any insurance policies covering the
Building and the Fixtures and property therein; and shall not do, or permit to
be done, any act or thing upon the premises which shall subject Landlord to any
liability or responsibility for injury to any person or persons or to property
by reason of any business or operation being carried on upon said premises or
for any other reason. Tenant at its own expense shall comply with all rules,
orders, regulations and requirements of the Board of Fire Underwriters, or any
other similar body having jurisdiction, and shall not (i) do, or permit anything
to be done, in or upon the premises, or bring or keep anything therein, except
as now or hereafter permitted by the Fire Department, Board of Underwriters,
Fire Insurance Rating Organization, or other authority having jurisdiction, and
then only in such quantity and manner of storage as will not increase the rate
for any insurance applicable to the Building, or (ii) use the premises in a
manner which shall increase such insurance rates on the Building, or on property
located therein, over that applicable when Tenant first took occupancy of the
premises hereunder. If by reason of the failure of Tenant to comply with the
provisions hereof the insurance rate applicable to any policy of insurance shall
at any time thereafter be higher than it otherwise would be, the Tenant shall
reimburse Landlord for that part of any insurance premiums thereafter paid by
Landlord, which shall have been charmed because of such failure by Tenant.
Landlord agrees that the use of the premises, as opposed to the manner of use of
the premises, for general office use will not invalidate, conflict with or Cause
an increase in premiums under any insurance policies carried by Landlord.
17.9 Miscellaneous. Tenant shall not suffer or permit the premises or
any fixtures, equipment or utilities therein or serving the same, to be
overloaded, damaged or defaced, nor, except as provided in Article 12, permit
any hole to be drilled or made in any part thereof. Tenant shall not suffer or
permit any employee, contractor, business invitee or visitor to violate any
covenant, agreement or obligations of the Tenant under this Lease.
18. DAMAGE BY FIRE, ETC.
(a) During the entire term of this Lease, and adjusting insurance coverages
to reflect current values from time to time:--(i) Landlord shall keep the
Building (excluding work, installations, improvements and betterments in the
premises which exceed the specifications provided in Exhibit 3, [called "Over-
Building-Standard Property"] and any other property installed by or at the
expense of Tenant) insured against loss or damage caused by any peril covered
under fire, extended coverage and all risk insurance in an amount equal to one
hundred percent (100%) replacement cost value above foundation walls; and (ii)
Tenant shall keep its personal property in and about the premises and the Over-
Building-Standard Property insured against loss or damage caused by any peril
covered under fire, extended coverage and all risk insurance in an amount equal
to one hundred percent (100%) replacement cost value. Such Tenant's insurance
shall insure the interests of both Landlord and Tenant as their respective
interests may appear from time to time and shall name Landlord as in additional
insured; and the proceeds thereof shall be used only for the replacement or
restoration of such personal property and the Over-Building-Standard Property.
(b) If any portion of the Building, required to be insured by Landlord
under the precedence paragraph shall be damaged by fire or other insured
casualty, Landlord shall proceed with diligence, subject to the then applicable
statutes, building codes, zoning ordinances, and regulations of any governmental
authority, and at the expense of Landlord (but only to the extent of insurance
proceeds made available to Landlord by any mortgagee and/or around lessor of the
real property of which the premises are a part, plus any deductible) to repair
or cause to be repaired such damage, provided, however, in respect of any over-
Building Standard Property as shall have been damaged by such Fire or other
casualty and which (in the judgment of Landlord) can more effectively be
repaired as an integral part of Landlord's repair work on the premises, that
such repairs to such Tenant's alterations, decorations, additions and
improvements shall be performed by Landlord but at Tenant's expense; in all
other respects, all repairs to and replacements of Tenant's property and Over-
Building-Standard Property shall be made by and at the expense of Tenant.
(c) If the premises or any part thereof shall have been rendered unfit for
use and occupation hereunder by reason of such damage or Tenant shall have no
reasonable means of access to the premises, the Yearly Rent and
24
any other additional rent and other charges due hereunder or a just and
proportionate part thereof, according to the nature and extent to which the
premises shall have been so rendered unfit or inaccessible, shall be suspended
or abated until the premises (except as to the property which is to be repaired
by or at the expense of Tenant) shall have been restored as nearly as
practicably may be to the condition in which they were immediately prior to such
fire or other casualty and Tenant has a reasonable means of access to the same.
(d) Tenant agrees to cooperate with Landlord in such manner as Landlord may
reasonably request in assisting Landlord in collecting insurance proceeds due in
connection with any casualty which affects the premises. Landlord shall not be
liable for delays in the making of any such repairs which are due to government
regulation, casualties and strikes, unavailability of labor and materials, and
other causes beyond the reasonable control of Landlord, nor shall Landlord be
liable for any inconvenience or annoyance to Tenant or injury to the business of
Tenant resulting from delays in repairing such damage.
(e) If (i) the premises are so damaged by fire or other casualty (whether
or not insured) at any time during the last eighteen (18) months of the term
hereof that the cost to repair such damage is reasonably estimated to exceed one
half (1/2) of the total Yearly Rent payable hereunder for the period from the
estimated date of restoration until the Termination Date, or (ii) the Building
(whether or not including any portion of the premises) is so damaged by fire or
other casualty (whether or not insured) that substantial alteration or
reconstruction or demolition of the Building shall in Landlord's judgment be
required, then and in either of such events, this Lease and the term hereof may
be terminated at the election of Landlord by a notice in writing of its election
so to terminate which shall be given by Landlord to Tenant within sixty (60)
days following such fire or other casualty, the effective termination date of
which shall be not less than thirty (30) days after the day on which such
termination notice is received by Tenant. For purposes of the foregoing
sentence, the term "substantial alteration or reconstruction or demolition"
shall mean alteration, reconstruction or demolition, which in Landlord's good
faith judgment, would take more than one hundred eighty (180) days to repair
from the date of commencement of the work if Landlord used reasonable efforts to
complete such work. In addition, Landlord's termination right under clause (ii)
shall apply only if the leases of all other tenants which are similarly situated
to Tenant in the Building are terminated.
(f) If any portion of the premises or any portion of the Building shall be
damaged or destroyed by fire or other casualty to the extent that the operation
of Tenant's business in the premises in the normal course is materially
adversely affected, then, within thirty (30) days of such fire or other
casualty, Landlord shall submit to Tenant a reasonable engineering estimate as
to the estimated length of time co complete such repairs. If the time period
("Estimated Restoration Period") set forth in such estimate shall exceed one
hundred eighty (180) days of the date of such casualty, Tenant may elect, by a
notice sent within Fifteen (15) days after notice of such estimate is sent to
Tenant, to terminate this Lease. If such estimate shall fall within the 180-day
limit, Tenant shall have no such right to terminate and Landlord shall, subject
to the provisions of this Article 18, proceed with due diligence and promptness
to reasonably complete the repairs or restoration within such one hundred eighty
(180) days, subject always to delay for causes beyond Landlord's reasonable
control including, but not limited to the causes specified in Article 26 hereof,
and the other limitations set forth in this Article 18.
(g) In the event that the premises or the Building are damaged by fire or
other casualty to such an extent so as to render the premises untenantable, and
if Landlord shall fail, for any reason other than Tenant's fault, to
substantially complete said repairs or restoration on or before the date
("Outside Date") which is the later of the last day of the Estimated Restoration
Period or one hundred fifty (150) days after the date of such fire or other
casualty, Tenant may terminate this Lease by living Landlord written notice as
follows:
(i) Said notice shall be given after the Outside Date:
(ii) Said notice shall set forth an effective date which is not
earlier than thirty (30) days after Landlord receives said
notice:
(iii) If said repairs or restoration are substantially complete on or
before the date thirty (30) days (which thirty-(30)-day period
shall be extended by the length of any delays caused
25
by Tenant or Tenant's contractors) after Landlord receives such
notice, said notice shall have no further force and effect; and
(iv) If said repairs or restoration are not substantially complete
on or before the date thirty (30) days (which thirty-(30)-day
period shall be extended by the length of any delays caused by
Tenant or Tenant's contractors) after Landlord receives such
notice, the Lease shall terminate as of said effective date.
(h) In the event of any termination, this Lease and the term hereof shall
expire as of such effective termination date as though that were the Termination
Date as stated in Exhibit I and the Yearly Rent shall be apportioned as of such
date; and if the premises or any part thereof shall have been rendered unfit or
inaccessible for use and occupation by reason of such damage the Yearly Rent for
the period from the date of the fire or other casualty to the effective
termination date, or a just and proportionate part thereof, according to the
nature and extent to which the premises shall have been so rendered unfit or
inaccessible, shall be abated.
19. WAIVER OF SUBROGATION
In any case in which Tenant shall be obligated to pay to Landlord any loss,
cost damage, liability, or expense suffered or incurred by Landlord, Landlord
shall allow to Tenant as an offset against the amount thereof (i) the net
proceeds of any insurance collected by Landlord for or on account of such loss,
cost, damage, liability or expense, provided that the allowance of such offset
does not invalidate or prejudice the policy or policies under which such
proceeds were payable, and (ii) the amount of any loss, cost, damage, liability
or expense caused by a peril covered by the broadest form of property insurance
generally available in property in buildings of the type of the Building whether
or not actually procured by Landlord.
In any case in which Landlord or Landlord's managing agent shall be
obligated to pay to Tenant any loss, cost, damage, liability or expense suffered
or incurred by Tenant, Tenant shall allow to Landlord or Landlord's managing
agent, as the case may be, as an offset against the amount thereof (i) the net
proceeds of any insurance collected by Tenant for or on account of such loss,
cost damage, liability, or expense, provided that the allowance of such offset
does not invalidate the policy or policies under which such proceeds were
payable and (ii) the amount of any loss, cost, damage, liability or expense
caused by a peril covered by the broadest form of property insurance generally
available in property in buildings of the type of the Building, whether or not
actually procured by Tenant.
The parties hereto shall each procure an appropriate clause in, or
endorsement on, any property insurance policy covering the premises and the
Building and personal property, fixtures and equipment located thereon and
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery in favor of either party, its respective agents
or employees. Having obtained such clauses and/or endorsements, each party
hereby agrees that it will not make any claim against or seek to recover from
the other or its agents or employees for any loss or damage to its property or
the property of others resulting from fire or other perils covered by such
property insurance.
20. CONDEMNATION - EMINENT DOMAIN
In the event that the premises or any part thereof, or the whole or any
part of the Building shall be taken or appropriated by eminent domain or shall
be condemned for any public or quasi-public use, or (by virtue of any such
taking appropriation or condemnation) shall suffer any damage (direct or
indirect or consequential) for which Landlord or Tenant shall be entitled to
compensation, then (and in any such event) this Lease and the term hereof may be
terminated at the election of Landlord by a notice in writing of its election so
to terminate which shall be given by Landlord to Tenant within sixty (60) days
foregoing the date on which Landlord shall have received notice of such taking,
appropriation or condemnation. In the event that a substantial part of the
premises or of the means of access thereto shall be so appropriated or
condemned, then (and in any such event) this Lease and the term hereof may be
terminated at the election of Tenant by a notice in writing of its election so
to terminate which shall be given by Tenant to Landlord within sixty (60) days
following the date on which Tenant shall have received notice of such taking
appropriation or condemnation.
26
Upon the giving of any such notice of termination (either by Landlord or
Tenant) this Lease and the term hereof shall terminate on or retroactively as of
the date on which Tenant shall be required to vacate any part of the premises or
shall be deprived of a substantial part of the means of access thereto,
provided, however, that Landlord may in Landlord's notice elect to terminate
this Lease and the term hereof retroactively as of the dare on which such taking
appropriation or condemnation became legally effective. In the event of any
such termination, this Lease and the term hereof shall expire as of such
effective termination date as though that were the Termination Date as stated in
Exhibit 1, and the Yearly Rent, additional rent and all other charges due
hereunder shall be apportioned as of such date. If neither party (having the
right so to do) elects to terminate Landlord will, with reasonable diligence and
at Landlord's expense, restore the remainder of the premises, the Building and
the remainder of the means of access, as nearly as practicably may be to the
same condition as obtained prior to such taking appropriation or condemnation in
which event (i) the Total Rentable Area shall be adjusted as in Exhibit 5
provided, (ii) a just proportion of the Yearly Rent, according to the nature and
extent of the taking, appropriation or condemnation and the resulting permanent
injury to the premises and the means of access thereto, shall be permanently
abated, and (iii) a just proportion of the remainder of the Yearly Rent,
additional rent and all other charges due hereunder according to the nature and
extent of the taking appropriation or condemnation and the resultant injury
sustained by the premises and the means of access thereto, shall be abated until
what remains of the premises and the means of access thereto shall have been
restored as fully as may be for permanent use and occupation by Tenant
hereunder. Except for any award specifically reimbursing Tenant for moving or
relocation expenses, there are expressly reserved to Landlord all rights to
compensation and damages created, accrued or accruing by reason of any such
taking, appropriation or condemnation, in implementation and in confirmation of
which Tenant does hereby acknowledge that Landlord shall be entitled to receive
all such compensation and damages, grant to Landlord all and whatever rights (if
any) Tenant may have to such compensation and damages, and agree to execute and
deliver all and whatever further instruments of assignment as Landlord may from
time to time request. In the event of any taking of the premises or any part
thereof for temporary (i.e., not in excess of one (1) year) use, (i) this Lease
shall be and remain unaffected thereby, and (ii) Tenant shall be entitled to
receive for itself any award made to the extent allocable to the premises in
respect of such taking, on account of such use, provided, that if any taking is
for a period extending beyond the term of this Lease, such award shall be
apportioned between Landlord and Tenant as of the Termination Date or earlier
termination of this Lease.
21. DEFAULT
21.1 Conditions of Limitation - Re-entry - Termination. This Lease and
the herein term and estate are, upon the condition that if (a) subject to
Article 21.7, Tenant shall neglect or fail to perform or observe any of the
Tenant's covenants or agreements herein, including (without limitation) the
covenants or agreements with regard to the payment when due of rent, additional
charges, or any other charge payable by Tenant to Landlord (all of which shall
be considered as part of Yearly Rent for the purposes of invoking Landlord's
statutory or other rights and remedies in respect of payment defaults); or (b)
Tenant shall be involved in financial difficulties as evidenced by an admission
in writing by Tenant of Tenant's inability to pay its debts generally as they
become due, or by the making or offering to make a composition of its debts with
its creditors; or (c) Tenant shall make an assignment or trust mortgage, or
other conveyance or transfer of like nature, of all or a substantial part of its
property for the benefit of its creditors, or (d) the leasehold hereby created
shall be taken on execution or by other process of law and shall not be revested
in Tenant within thirty (30) days thereafter; or (e) a receiver, sequesterer,
trustee or similar officer shall be appointed by a court of competent
jurisdiction to take charge of all or any part of Tenant's property and such
appointment shall not be vacated within ninety (90) days; or (f) any proceeding
shall be instituted by or against Tenant pursuant to any of the provisions of
any Act of Congress or State law relating to bankruptcy, reorganizations,
arrangements, compositions or other relief from creditors, and in the case of
any proceeding instituted against it, if Tenant shall fail to have such
proceedings dismissed within ninety (90) days or if Tenant is adjudged bankrupt
or insolvent as a result of any such proceeding, or (g) any event shall occur or
any contingency shall arise whereby this Lease, or the term and estate thereby
created, would (by operation of law or otherwise) devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted
under Article 16 hereof - then, and in any such event (except as hereinafter in
Article 21.2 otherwise provided) Landlord may, by notice to Tenant, elect to
terminate this Lease; and thereupon (and without prejudice to any remedies which
might otherwise be available for arrears of rent or other charges due hereunder
or preceding breach of covenant or
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agreement and without prejudice to Tenant's liability for damages as hereinafter
stated), upon the giving of such notice, this Lease shall terminate as of the
date specified therein as though that were the Termination Date as stated in
Exhibit 1. Without being taken or deemed to be guilty of any manner of trespass
or conversion, and without being liable to indictment, prosecution or damages
therefor, Landlord may, in any manner permitted by law, enter into and upon the
premises (or any part thereof in the name of the whole); repossess the same as
of its former estate; and expel Tenant and those claiming under Tenant. Wherever
"Tenant" is used in subdivisions (b), (c), (d) and (e) of this Article 21.1, it
shall be deemed to include any one of (i) any corporation of which Tenant is a
controlled subsidiary and (ii) any guarantor of any of Tenant's obligations
under this Lease. The words "re-entry" and "re-enter" as used in this Lease are
not restricted to their technical legal meanings.
21.2 Landlord's Reletting Efforts. Landlord agrees to use reasonable
efforts to relet the premises after Tenant vacates the premises in the event
that the Lease is terminated based upon a default by Tenant hereunder.
Marketing of Tenant's premises in a manner similar to the manner in which
Landlord markets other premises within Landlord's control in the Building shall
be deemed to have satisfied Landlord's obligation to use "reasonable efforts."
In no event shall Landlord be required to (i) solicit or entertain negotiations
with any other prospective tenants for the premises until Landlord obtains full
and complete possession of the premises including, without limitation, the final
and unappealable legal right to re-let the premises free of any claim of Tenant,
(ii) relet the premises before leasing other vacant space in the Building or in
Three Apple Hill, or (iii) lease the premises for a rental less than the current
fair market rental then prevailing for similar office space in the Building.
21.3 Damages - Termination. Upon the termination of this Lease under
the provisions of this Article 21, then except as hereinabove in Article 21.2
otherwise provided, Tenant shall pay to Landlord the rent and other charges
payable by Tenant to Landlord up to the time of such termination, shall continue
to be liable for any preceding breach of covenant, and in addition, shall pay to
Landlord as damages, at the election of Landlord
either:
(x) the amount by which, at the time of the termination of this Lease
(or at any time thereafter if Landlord shall have initially elected damages
under subparagraph (y) below), (i) the aggregate of the rent and other charges
projected over the period commencing with such termination and ending on the
Termination Date as stated in Exhibit 1 exceeds (ii) the aggregate projected
rental value of the premises for such period including projected Tax Excess and
Operating, Expense Excess payments:
or:
(y) amounts equal to the rent and other charges which would have been
payable by Tenant had this Lease not so terminated, payable upon the due dates
therefor specified herein following such termination and until the Termination
Date as specified in Exhibit 1, provided, however, if Landlord shall re-let the
premises during such period, that Landlord shall credit Tenant with the net
rents received by Landlord from such re-letting, such net rents to be determined
by first deducting from the gross rents as and when received by Landlord from
such re-letting, the expenses incurred or paid by Landlord in terminating this
Lease, as well as the expenses (incurred in good faith) of re-letting, including
altering and preparing the premises for new tenants, brokers' commissions, and
all other similar and dissimilar expenses properly chargeable against the
premises and the rental therefrom, it being understood that any such re-letting
may be for a period equal to or shorter or longer than the remaining term of
this Lease; and provided, further, that (i) in no event shall Tenant be entitled
to receive any excess of such net rents over the sums payable by Tenant to
Landlord hereunder and (ii) in no event shall Tenant be entitled in any suit for
the collection of damages pursuant to this Subparagraph (y) to a credit in
respect of any net rents from a re-letting except to the extent that such net
rents are actually received by Landlord prior to the commencement of such suit.
If the premises or any part thereof should be re-let in combination with other
space, then proper apportionment on a square foot area basis shall be made of
the rent received from such re-letting and of the expenses of re-letting.
In calculating the rent and other charges under Subparagraph (x), above,
there shall be included, in addition to the Yearly Rent, Tax Excess and
Operating Expense Excess and all other considerations agreed to be paid or
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performed by Tenant, on the assumption that all such amounts and considerations
would have remained constant (except as herein otherwise provided) for the
balance of the full term hereby granted.
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant.
21.4 Fees and Expenses.
(a) If Tenant shall default in the performance of any covenant on
Tenant's part to be performed as in this Lease contained, Landlord may, if
Tenant has not cured such default within fifteen (15) days of Tenant's receipt
of written notice from Landlord (or such longer period as Tenant may reasonably
require to cure such default provided that Tenant commences to cure such default
within such fifteen (15) day period and diligently prosecutes such cure to
completion), perform the same for the account of Tenant. Notwithstanding the
foregoing, in emergency situations. Landlord may exercise its right to cure
Tenant's default without giving Tenant any prior notice. If Landlord at any
time is compelled to pay or elects to pay any sum of money, or do any act which
will require the payment of any sum of money, by reason of the failure of Tenant
to comply with any provision hereof, or if Landlord is compelled to or does
incur any expense, including reasonable attorneys' fees, in instituting,
prosecuting, and/or defending any action or proceeding instituted by reason of
any default of Tenant hereunder, Tenant shall on demand pay to Landlord by way
of reimbursement the sum or sums so paid by Landlord with all costs and damages,
plus interest computed as provided in Article 6 hereof.
(b) Tenant shall pay Landlord's cost and expense, including
reasonable attorneys' fees, incurred (i) in enforcing any obligation of Tenant
under this Lease or (ii) as a result of Landlord, without its fault, being made
party to any litigation pending by or against Tenant or any persons claiming
through or under Tenant. Tenant shall not be obligated to make any payment co
Landlord of any attorneys' fees incurred by Landlord unless judgment is entered
(final, and beyond appeal) in favor of Landlord. Landlord shall pay, upon demand
by Tenant, reasonable attorneys' fees incurred by Tenant in connection with any
lawsuit between Landlord and Tenant where judgment is entered (final, and beyond
appeal) in favor of Tenant.
21.5 Waiver of Redemption. Tenant does hereby waive and surrender all
rights and privileges which it might have under or by reason of any present or
future law to redeem the premises or to have a continuance of this Lease for the
term hereby demised after being dispossessed or ejected therefrom by process of
law or under the terms of this Lease or after the termination of this Lease as
herein provided.
21.6 Landlord's Remedies Not Exclusive. The specified remedies to
which Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any remedies or means of redress to which Landlord may at any time
be lawfully entitled, and Landlord may invoke any remedy (including the remedy
of specific performance) allowed at law or in equity as if specific remedies
were not herein provided for.
21.7 Grace Period. Notwithstanding anything to the contrary in this
Article contained, Landlord agrees not to take any action to terminate this
Lease (a) for default by Tenant in the payment when due of any sum of money, if
Tenant shall cure such default within ten (10) days after written notice thereof
is given by Landlord to Tenant, provided, however, that no such notice need be
given and no such default in the payment of money shall be curable if on two (2)
prior occasions during the previous twelve (12)-month period there had been a
default in the payment of money which had been cured after notice thereof had
been given by Landlord to Tenant as herein provided or (b) for default by Tenant
in the performance of any covenant other than a covenant to pay a sum of money,
if Tenant shall cure such default within a period of thirty (30) days after
written notice thereof given by Landlord to Tenant (except where the nature of
the default is such that remedial action should appropriately take place sooner,
as indicated in such written notice), or within such additional period as may
reasonably be required to
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cure such default if (because of governmental restrictions or any other cause
beyond the reasonable control of Tenant) the default is of such a nature that it
cannot be cured within such thirty-(30)-day period, provided, however, (1) that
there shall be no extension of time beyond such thirty-(30)-day-period for the
curing of any such default unless, not more than ten (10) days after the receipt
of the notice of default, Tenant in writing (i) shall specify the cause on
account of which the default cannot be cured during such period and shall advise
Landlord of its intention duly to institute all steps necessary to cure the
default and (ii) shall, as soon as reasonably practicable, duly institute and
thereafter diligently prosecute to completion all steps necessary to cure such
default and, (2) that no notice of the opportunity to cure a default need be
given, and no grace period whatsoever shall be allowed to Tenant, if the event
allowing Landlord to terminate the Lease is a condition described in Articles
21.1 (b), (c), (d) and (e).
Notwithstanding anything to the contrary in this Article 21.7 contained,
except to the extent prohibited by applicable law, any statutory notice and
grace periods provided to Tenant by law are hereby expressly waived by Tenant.
22. END OF TERM - ABANDONED PROPERTY
Upon the expiration or other termination of the term of this Lease, Tenant
shall peaceably quit and surrender to Landlord the premises and all alterations
and additions thereto, broom clean, in good order, repair and condition (except
as provided herein and in Articles 8.7, 18 and 20) excepting only ordinary wear
and use and damage by fire or other casualty and taking by eminent domain.
Tenant shall remove all of its property and, to the extent specified by
Landlord, all alterations and additions made by Tenant and all partitions wholly
within the premises and shall repair any damages to the premises or the Building
caused by their installation or by such removal. Tenant's obligation to observe
or perform this covenant shall survive the expiration or other termination of
the term of this Lease.
Tenant will remove any personal property from the Building and the premises
upon or prior to the expiration or within ten (10) days of any earlier
termination of this Lease and any such property which shall remain in the
Building or the premises thereafter shall be conclusively deemed to have been
abandoned, and may either be retained by Landlord as its property or sold or
otherwise disposed of in such manner as Landlord may see fit. If any part
thereof shall be sold, that Landlord may receive and regain the proceeds of such
sale and apply the same, at its option, against the expenses of the sale, the
cost of moving and storage, any arrears of Yearly Rent, additional or other
charges payable hereunder by Tenant to Landlord and any damages to which
Landlord may be entitled under Article 21 hereof or pursuant to law.
If Tenant or anyone claiming under Tenant shall remain in possession of the
premises or any part thereof after the expiration or prior termination of the
term of this Lease without any agreement in writing between Landlord and Tenant
with respect thereto, then, prior to the acceptance of any payments for rent or
use and occupancy by Landlord, the person remaining in possession shall be
deemed a tenant-at-sufferance. Whereas the parties hereby acknowledge that
Landlord may need the premises after the expiration or prior termination of the
term of the Lease for other tenants and that the damages which Landlord may
suffer as the result of Tenant's holding-over cannot be determined as of the
Execution Date hereof, in the event that Tenant so holds over, Tenant shall pay
to Landlord in addition to all rental and other charges due and accrued under
the Lease prior to the date of termination, charges (based upon fair market
rental value of the premises) for use and occupation of the premises thereafter
and, in addition to such sums and any and all other rights and remedies which
Landlord may have at law or in equity, an additional use and occupancy charges
in the amount of fifty percent (50%) of either the Yearly Rent and other charges
calculated (on a daily basis) at the highest rate payable under the terms of
this Lease, but measured from the day on which Tenant's hold-over commenced and
terminating on the day on which Tenant vacates the premises or the fair market
value of the premises for such period, whichever is greater. In addition,
Tenant shall save Landlord, its agents and employees, harmless and will
exonerate, defend and indemnify Landlord, its agents and employees, from and
against any and all damages which Landlord may suffer on account of Tenant's
hold-over in the premises after the expiration or prior termination of the term
of the Lease.
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23. SUBORDINATION
(a) Subject to any mortgagee's or ground lessor's election, as hereinafter
provided for, this Lease is subject and subordinate in all respects to ail
matters of record (including, without limitation, deeds and land disposition
agreements), ground leases and/or underlying leases, and all mortgages, any of
which may now or hereafter be placed on or affect such leases and/or the real
property of which the premises are a part, or any part of such real property,
and/or Landlord's interest or estate therein, and to each advance made and/or
hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor. This Article 23 shall be self-operative and no further
instrument or subordination shall be required. In confirmation of such
subordination, Tenant shall execute, acknowledge and deliver promptly any
certificate or instrument that Landlord and/or any mortgagee and/or lessor under
any ground or underlying lease and/or their respective successors in interest
may request, provided that such certificate or instrument is in a commercially
reasonable form. Notwithstanding anything to the contrary in this Article 23
contained as to any future mortgages, ground leases, and/or underlying lease or
deeds of trust, the herein provided subordination and attornment shall be
effective only if the mortgagee, ground lessor or trustee therein, as the case
may be, agrees, by a written instrument in recordable form and in the customary
form of such mortgagee, ground lessor, or trustee with such commercially
reasonable modifications as Tenant may request ("Nondisturbance Agreement")
that, as long as Tenant shall not be in terminable default of the obligations on
its part to be kept and performed under the terms of his Lease, this Lease will
not be affected and Tenant's possession hereunder will not be disturbed by any
default in, termination, and/or foreclosure of, such mortgage, ground lease,
and/or underlying lease or deed of trust, as the case may be. Landlord
represents and warrants to Tenant that, as of the Execution Date of this Lease,
there are no mortgages, ground leases, or underlying leases encumbering the real
property or which the premises are a party.
(b) Any such mortgagee or ground lessor may from time to time subordinate
or revoke any such subordination of the mortgage or ground lease held by it to
this Lease. Such subordination or revocation, as the case may be, shall be
effected by written notice to Tenant and by recording an instrument of
subordination or of such revocation, as the case may be, with the appropriate
registry of deeds or land records and to be effective without any further act or
deed on the part of Tenant. In confirmation of such subordination or of such
revocation, as the case may be, Tenant shall execute, acknowledge and promptly
deliver any certificate or instrument that Landlord, any mortgagee or ground
lessor may request, provided that such certificate or instrument is in a
commercially reasonable form.
(c) Without limitation of any of the provisions of this Lease, if any
ground lessor or mortgagee shall succeed to the interest of Landlord by reason
of the exercise of its rights under such ground lease or mortgage (or the
acceptance of voluntary conveyance in lieu thereof) or any third party
(including, without limitation, any foreclosure purchaser or mortgage receiver)
shall succeed to such interest by reason of any such exercise or the expiration
or sooner termination of such ground lease, however caused, then such successor
shall succeed to the interest of Landlord under this Lease, provided, however,
that such successor shall not: (i) be liable for any previous act or omission
of Landlord under this Lease; (ii) be subject to any offset, defense, or
counterclaim which shall theretofore have accrued to Tenant against Landlord;
(iii) have any obligation with respect to any security deposit unless it shall
have been paid over, credited to, or physically delivered to such successor; or
(iv) be bound by any previous modification of this Lease or by any previous
payment of Yearly Rent for a period greater than one (1) month, made without
such ground lessor's or mortgagee's consent where such consent is required by
applicable ground lease or mortgage documents, in either case, if Tenant has
received prior written notice of the interest of such around lessor or
mortgagee. In the event of such succession to the interest of the Landlord --
and notwithstanding that any such mortgage or ground lease may antedate this
Lease -- the Tenant shall attorn to such successor and shall ipso facto be and
become bound directly to such successor in interest to Landlord to perform and
observe all the Tenant's obligations under this Lease without the necessity of
the execution of any further instrument. Nevertheless, Tenant agrees at any
time and from time to time during the term hereof to execute a suitable
instrument in confirmation of Tenant's agreement to attorn, as aforesaid,
provided that such instrument is in a commercially reasonable form.
(d) The term "mortgage(s)" as used in this Lease shall include any mortgage
or deed of trust. The term "mortgagee(s)" as used in this Lease shall include
any mortgagee or any trustee and beneficiary under a deed of
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trust or receiver appointed under a mortgage or deed of trust. The term
"mortgagor(s)" as used in this Lease shall include any mortgagor or any grantor
under a deed of trust.
(e) Notwithstanding anything to the contrary contained in this Article 23,
if all or part of Landlord's estate and interest in the real property of which
the premises are a part shall be a leasehold estate held under a around lease,
then: (i) the foregoing, subordination provisions of this Article 23 shall not
apply to any mortgages of the fee interest in said real property to which
Landlord's leasehold estate is not otherwise subject and subordinate; and (ii)
the provisions of this Article 23 shall in no way waive, abrogate or otherwise
affect any agreement by any ground lessor (x) not to terminate this Lease
incident to any termination of such around lease prior to its term expiring or
(y) not to name or join Tenant in any action or proceeding by such ground lessor
to recover possession of such real property or for any other relief.
(f) In the event of any failure by Landlord to perform, fulfill or observe
any agreement by Landlord herein, in no event will the Landlord be deemed to be
in default under this Lease permitting Tenant to exercise any or all rights or
remedies under this Lease until the Tenant shall have given written notice,
which may be concurrent with any notice to Landlord, of such failure to any
mortgagee (ground lessor and/or trustee) of which Tenant shall have been advised
and until a reasonable period of time shall have elapsed following the giving of
such notice, during which such mortgagee (ground lessor and/or trustee) shall
have the right, but shall not be obligated, to remedy such failure.
24. QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant is not in default beyond
any applicable and cure periods, Tenant shall quietly enjoy the premises from
and against the claims of all persons claiming by, through or under Landlord
subject, nevertheless, to the covenants, agreements, terms, provisions and
conditions of this Lease and to the mortgages, ground leases and/or underlying
leases to which this Lease is subject and subordinate, as hereinabove set forth.
25. ENTIRE AGREEMENT - WAIVER - SURRENDER
25.1 Entire Agreement. This Lease and the Exhibits made a part hereof
contain the entire and only agreement between the parties and any and all
statements and representations, written and oral, including previous
correspondence and agreements between the parties hereto, are merged herein.
Tenant acknowledges that all representations and statements upon which it relied
in executing this Lease are contained herein and that the Tenant in no way
relied upon any other statements or representations, written or oral. Any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
25.2 Waiver. The failure of either party to seek redress for violation,
or to insist upon the strict performance, of any covenant or condition of this
Lease, or any of the Rules and Regulations promulgated hereunder, shall not
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed a waiver of such breach. The failure of Landlord to enforce
any of such Rules and Regulations against Tenant and/or any other tenant in the
Building shall not be deemed a waiver of any such Rules and Regulations. No
provisions of this Lease shall be deemed to have been waived by either party
unless such waiver be in writing signed by such party giving the waiver. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on account of the
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
25.3 Surrender. No act or thing done by Landlord during the term hereby
demised shall be deemed an acceptance of a surrender of the premises, and no
agreement to accept such surrender shall be valid, unless in
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writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the premises prior to the termination
of this Lease. The delivery of keys to any employee of Landlord or of Landlord's
agents shall not operate as a termination of the Lease or a surrender of the
premises. In the event that Tenant at any time desires to have Landlord underlet
the premises for Tenant's account, Landlord or Landlord's agents are authorized
to receive the keys for such purposes without releasing Tenant from any of the
obligations under this Lease, and Tenant hereby relieves Landlord of any
liability for loss of or damage to any of Tenant's effects in connection with
such underletting.
26. INABILITY TO PERFORM - EXCULPATORY CLAUSE
(a) Except as provided in Article 4.1 and 4.2 hereof, this Lease and the
obligations of Tenant to pay rent hereunder and perform all the other covenants,
agreements, terms, provisions and conditions hereunder on the part of Tenant to
be performed shall in no way be affected, impaired or excused because Landlord
is unable to fulfill any of its obligations under this Lease or is unable to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make or is delayed in making any repairs, replacements,
additions, alterations, improvements or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of strikes or labor troubles or any other
similar or dissimilar cause whatsoever beyond Landlord's reasonable control,
including but not limited to, governmental preemption in connection with a
national emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any governmental agency or by reason of the
conditions of supply and demand which have been or are affected by war,
hostilities or other similar or dissimilar emergency. In each such instance of
inability of Landlord to perform, Landlord shall exercise reasonable diligence
to eliminate the cause of such inability to perform.
(b) Tenant shall neither assert nor seek to enforce any claim against
Landlord, or Landlord's agents or employees, or the assets of Landlord or of
Landlord's agents or employees, for breach of this Lease or otherwise, other
than against Landlord's interest in the Building of which the premises are a
part and the Land, in the uncollected rents, issues and profits thereof, and
against any liability insurance coverage maintained by Landlord, and Tenant
agrees to look solely to such interest and insurance coverage for the
satisfaction of any liability of Landlord under this Lease, it being
specifically agreed that in no event shall Landlord or Landlord's agents or
employees (or any of the officers, trustees, directors, partners, beneficiaries,
joint venturers, members, stockholders or other principals or representatives,
and the like, disclosed or undisclosed, thereof) ever be personally liable for
any such liability. This paragraph shall not limit any right that Tenant might
otherwise have to obtain injunctive relief against Landlord or to take any other
action which shall not involve the personal liability of Landlord to respond in
monetary damages from Landlord's assets other than the Landlord's interest in
said real estate, as aforesaid.
(c) In no event shall Landlord or Landlord's agents or employees (or any of
the officers, trustees, directors, partners, beneficiaries, joint venturers,
members, stockholders or other principals or representatives and the like,
disclosed or undisclosed, thereof) ever be liable for consequential or
incidental damages. Without limiting the foregoing, in no event shall Landlord
or Landlord's agents or employees (or any, of the officers, trustees, directors,
partners, beneficiaries, joint venturers, members, stockholders or other
principals or representatives and the like, disclosed or undisclosed, thereof)
ever be liable for lost profits of Tenant. If by reason of Landlord's failure
to acquire title to the real property of which the premises are a part or to
complete construction of the Building or premises, Landlord shall be held to be
in breach of this Lease, Tenant's sole and exclusive remedy shall be a right to
terminate this Lease.
(d) Except as provided in the last paragraph of Article 22, in no event
shall Tenant or Tenant's agents or employees (or any of the officers, trustees,
directors, partners, beneficiaries, joint venturers, members, stockholders or
other principals or representatives and the like, disclosed or undisclosed,
thereof) ever be liable for consequential or incidental damages.
27. BILLS AND NOTICES
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Any notice, consent, request, xxxx, demand or statement hereunder by either
party to the other party shall be in writing and, if received at Landlord's or
Tenant's address, shall be deemed to have been duly given when either delivered
or served personally or mailed in a postpaid envelope, deposited in the United
States mail addressed to Landlord at its address as stated in Exhibit 1 and to
Tenant at the premises (or at Tenant's address as stated in Exhibit 1, if mailed
prior to Tenant's occupancy of the premises, with a copy to Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Real
Estate Department), or if any address for notices shall have been duly changed
as hereinafter provided, if mailed as aforesaid to the party at such chanced
address. Either party may at any time change the address or specify an
additional address for such notices, consents, requests, bills, demands or
statements by delivering or mailing, as aforesaid, to the other party a notice
stating the change and setting forth the changed or additional address, provided
such changed or additional address is within the United States.
If Tenant is a partnership, Tenant, for itself, and on behalf of all of its
partners, hereby appoints Tenant's Service Partner, as identified on Exhibit 1,
to accept service of any notice, consent, request, xxxx, demand or statement
hereunder by Landlord and any service of process in any judicial proceeding with
respect to this Lease on behalf of Tenant and as agent and attorney-in-fact for
each partner of Tenant.
All bills and statements for reimbursement or other payments or charges due
from Tenant to Landlord hereunder shall be due and payable in full thirty (30)
days, unless herein otherwise provided, after submission thereof by Landlord to
Tenant. Tenant's failure to make timely payment of any amounts indicated by
such bills and statements, whether for work done by Landlord at Tenant's
request, reimbursement provided for by this Lease or for any other sums properly
owing by Tenant to Landlord, shall be treated as a default in the payment of
rent, in which event Landlord shall have all rights and remedies provided in
this Lease for the nonpayment of rent.
28. PARTIES BOUND - SEIZING OF TITLE
The covenants, agreements, terms, provisions and conditions of this Lease
shall bind and benefit the successors and assigns of the parties hereto with the
same effect as if mentioned in each instance where a party hereto is named or
referred to, except that no violation of the provisions of Article 16 hereof
shall operate to vest any rights in any successor or assignee of Tenant and that
the provisions of this Article 28 shall not be construed as modifying the
conditions of limitation contained in Article 21 hereof
If, in connection with or as a consequence of the sale, transfer or other
disposition of the real estate (land and/or Building, either or both, as the
case may be) of which the premises are a part, Landlord ceases to be the owner
of the reversionary interest in the premises, Landlord shall be entirely freed
and relieved from the performance and observance thereafter of all covenants and
obligations hereunder on the part of Landlord to be performed and observed,
except for those accruing prior to such sale, transfer or disposition, it being
understood and agreed in such event (and it shall be deemed and construed as a
covenant running with the land) that the person succeeding to Landlord's
ownership of said reversionary interest shall thereupon and thereafter assume,
and perform and observe, any and all of such covenants and obligations of
Landlord.
29. MISCELLANEOUS
29.1 Separability. If any provision of this Lease or portion of such
provision or the application thereof to any person or circumstance is for any
reason held invalid or unenforceable, the remainder of the Lease (or the
remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
29.2 Captions, etc. The captions are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the scope
of this Lease nor the intent of any provisions thereof. References to "State"
shall mean, where appropriate, the District of Columbia and other Federal
territories, possessions, as well as a state of the United States.
34
29.3 Broker. (a) Tenant represents and warrants that it has not
directly or indirectly dealt, with respect to the leasing of office space in the
Building or any Center, Office Park or other Park of which it is a part (called
"Building, etc." in this Article 29.3) with any broker or had its attention
called to the premises or other space to let in the Building, etc. by anyone
other than the broker, person or firm, if any, designated in Exhibit 1. Tenant
agrees to defend, exonerate and save harmless and indemnify Landlord and anyone
claiming by, through or under Landlord against any claims for a commission
arising out of any breach of the representation and warranty set forth in the
immediately preceding sentence.
(b) Landlord represents and warrants that, in connection with the execution
and delivery of the Lease, it has not directly or indirectly dealt with any
broker other than the brokers designated on Exhibit 1. Landlord agrees to
defend, exonerate and save harmless Tenant and anyone claiming by, through, or
under Tenant against any claims arising in breach of the representation and
warranty set forth in the immediately preceding sentence.
(c) Landlord shall be solely responsible for the payment of brokerage
commissions to the broker, person or firm, if any, designated in Exhibit 1.
29.4 Intentionally Omitted.
29.5 Arbitration. Any disputes relating to provisions or obligations in
this Lease as to which a specific provision for a reference to arbitration is
made herein shall be submitted to arbitration in accordance with the provisions
of applicable state law (as identified on Exhibit 1), as from time to time
amended. Arbitration proceedings, including the selection of an appraiser,
shall be conducted pursuant to the rules, regulations and procedures from time
to time in effect as promulgated by the American Arbitration Association. Prior
written notice of application by either party for arbitration shall be given to
the other at least ten (10) days before submission of the application to the
said Association's office in the City wherein the Building is situated (or the
nearest other city having an Association office). The appraiser shall hear the
parties and their evidence. The decision of the appraiser shall be binding and
conclusive, and judgment upon the award or decision of the appraiser may be
entered in the appropriate court of law (as identified on Exhibit 1); and the
parties consent to the jurisdiction of such court and further agree that any
process or notice of motion or other application to the Court or a Judge thereof
may be served outside the State wherein the Building is situated by registered
mail or by personal service, provided a reasonable time for appearance is
allowed. The costs and expenses of each arbitration hereunder and their
apportionment between the parties shall be determined by the appraiser in his
award or decision. No arbitrable dispute shall be deemed to have arisen under
this Lease prior to (i) the expiration of the period of twenty (20) days after
the date of the giving of written notice by the party asserting the existence of
the dispute together with a description thereof sufficient for an understanding
thereof, and (ii) where a Tenant payment is in issue, the amount billed by
Landlord having been paid by Tenant to the extent that the same is not disputed
by Tenant in good faith.
29.6 Governing Law. This Lease is made pursuant to, and shall be
governed by, and construed in accordance with, the laws of the State wherein the
Building is situated and any applicable local municipal rules, regulations, by-
laws, ordinances and the like.
29.7 Assignment of Rents. With reference to any assignment by Landlord
of its interest in this Lease, or the rents payable hereunder, conditional in
nature or otherwise, which assignment is made to or held by a bank, trust
company, insurance company or other institutional lender holding a mortgage or
ground lease on the Building, Tenant agrees:
(a) that the execution thereof by Landlord and the acceptance thereof by
such mortgagee and/or ground lessor shall never be deemed an assumption by such
mortgagee and/or ground lessor of any of the obligations of the Landlord
thereunder, unless such mortgagee and/or around lessor shall, by written notice
sent to the Tenant, specifically otherwise elect; and
(b) that, except as aforesaid, such mortgagee and/or ground lessor shall be
created as having assumed the Landlord's obligations thereunder only upon
foreclosure of such mortgagee's mortgage or deed of trust or termination of such
around lessor's ground lease or the taking of possession of the demised premises
after having
35
given notice of its exercise of the option stared in Article 23 hereof to
succeed to the interest of the Landlord under this Lease.
29.8 Representation of Authority. (a) By his execution hereof each of
the signatories on behalf of the respective parties hereby warrants and
represents to the other that he is duly authorized to execute this Lease on
behalf of such party. If Tenant is a corporation, Tenant hereby appoints the
signatory whose name appears below on behalf of Tenant as Tenant's attorney-in-
fact for the purpose of executing this Lease for and on behalf of Tenant.
(b) Landlord represents and warrants that those persons executing this
Lease on Landlord's behalf are duly authorized to execute and deliver this Lease
on behalf, and that this Lease is binding upon Landlord in accordance with its
terms.
29.9 Expenses Incurred by Landlord Upon Tenant Requests. Tenant shall,
upon demand, reimburse Landlord for all reasonable expenses, including, without
limitation, legal fees, incurred by Landlord in connection with all requests by
Tenant for consents, approvals or execution of collateral documentation related
to this Lease, including, without limitation, costs incurred by Landlord in the
review and approval of Tenant's plans and specifications in connection with
proposed alterations to be made by Tenant to the premises, requests by Tenant to
sublet the premises or assign its interest in the Lease (for which the Consent
Review Fee, as set forth in Article 16(b) shall be full compensation) the
execution by Landlord of estoppel certificates requested by Tenant, and requests
by Tenant for Landlord to execute waivers of Landlord's interest in Tenant's
property in connection with third party financing by Tenant. Such costs shall
be deemed to be additional rent under the Lease.
29.10 Survival. Without limiting any other obligation of the Tenant
which may survive the expiration or prior termination of the term of the Lease,
all obligations on the part of Tenant to indemnify, defend, or hold Landlord
harmless, as set forth in this Lease (including, without limitation, Tenant's
obligations under Articles 13(d), 15.3, and 29.3) shall survive the expiration
or prior termination of the term of the Lease.
29.11 ERISA. Tenant represents, warrants and covenants that it is
acting on its own behalf and that, as of the Execution Date, and during the
immediately preceding twelve month period, neither Tenant nor any of its
"Affiliates" (as defined in Department of Labor Class Exemption 84-14, Section
V(c)), shall have exercised the authority to: (i) appoint or terminate Landlord
or any other entity as an investment manager (hereafter "Manager" for the
purposes of this Article 29.7) of the Insurance and Retirement Program of
Metropolitan Life Insurance Company covering solely employees of Metropolitan
Life Insurance Company or its affiliates, or (ii) negotiate the terms of any
management agreement between the Manager and the Insurance and Retirement
Program of Metropolitan Life Insurance Company covering solely employees of
Metropolitan Life Insurance Company or its affiliates.
29.12 Year 2000 Compliance. Landlord agrees to use commercially
reasonably efforts to: (i) investigate with its management and vendors the
ability of the computer time clocks and software which operate and/or control
the Building equipment and tenant xxxxxxxx to continue to operate without
unreasonable interruption or disruption after January 1, 2000 (the "Millennium
Assessment"); and (ii) undertake commercially reasonable measures to address any
potential problems identified by the Millennium Assessment so as to avoid, to
the extent reasonably possible, unreasonable interruption and/or disruption to
the operation of the Building equipment and tenant xxxxxxxx. The Millennium
Assessment shall include an assessment of the Building elevators, mechanical
equipment, life safety systems, invoice billing and any other devices or
software which are necessary for the operation of the Building in accordance
with the provisions of the Lease. Tenant and Landlord acknowledge that,
notwithstanding Landlord's commercially reasonable efforts to prevent the same,
problems may occur in connection with the operation of the Building's equipment
and systems as a result of the Millennium and that such problems, if any, will
not excuse Tenant from fulfilling its duties and obligations under this Lease,
render Landlord liable for damages of any type or nature or be considered a
Landlord default hereunder.
IN WITNESS WHEREOF the parties hereto have executed this Indenture of Lease
in multiple copies, each to be considered an original hereof, as a sealed
instrument on the day and year noted in Exhibit 1 as the Execution Date.
36
LANDLORD: TENANT:
METROPOLITAN LIFE INSURANCE COMPANY EDOCS, INC.
On behalf of a co-mingled separate account
By: SSR Realty Advisors, Inc., its
Investment Advisor
By: /s/ A. Xxxx Xxxxx, Senior Asset Manager By: /s/ Xxxxx X. Xxxxxxx, CEO
--------------------------------------- -------------------------
(Name) (Title) (Name) (Title)
Hereunto Duly Authorized Hereunto Duly Authorized
IF TENANT IS A CORPORATION, A SECRETARY'S OR CLERK'S CERTIFICATE OF THE
AUTHORITY AND THE INCUMBENCY OF THE PERSON SIGNING ON BEHALF OF TENANT SHOULD BE
ATTACHED.
00
XXXXXXXXXXXX, XXXXXXXX XX
XXXXX XX XXXXXXXXXXXXX
XXXXXX OF MIDDLESEX
On the Execution Date stated in Exhibit 1, the person above signing this
Lease for and on behalf of the Tenant, to me personally known, did sign and
execute this Lease and, being by me duly sworn, did depose and say that he is
the officer of the above named Tenant, as noted, and that he signed his name
hereto by order of the Board of Directors of said Tenant.
/s/ Xxxxxx X. Xxxx
------------------------------------------------
Notary Public
My Commission Expires: 11/25/05
--------------------------
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On the Execution Date stated in Exhibit 1, the person above signing this
Lease for and on behalf of Landlord to me personally known, did sign and execute
this Lease and, being by me duly sworn, did depose and say that he is the duly
authorized representative of Landlord.
/s/ Xxxxx X. Xxxxx
------------------------------------------------
Notary Public
My Commission Expires: 8/24/00
--------------------------
38
EXHIBIT 3
BUILDING STANDARD ITEMS
-----------------------
The following, exhibit sets forth the Building standard level of leasehold
improvements and does not, notwithstanding anything to the contrary in this
Exhibit 3 contained, impose any obligation on Landlord to provide any such items
in the premises.
A. Exterior Walls, Lobby Walls and Core Walls
1. Finish
The exposed surfaces are to receive a drywall finish. The toilet room
walls are to be finished with ceramic tile and drywall, or equal.
2. Doors-Frames
Flush hollow metal doors or solid core wood doors 1-3/4" in thickness
will be installed in pressed metal door frames.
3. Hardware
Each swing door shall be provided with one and one-half pairs of
butts, a latch set, or lockset where required, and a door stop where
required. A surface mounted door closer will be provided at such
additional locations as may be required by the local code. All
hardware shall be Xxxxxxx, Schlage, Yale and Towne or equal.
B. Partitions and Doors
1. Partitions Separating, Premises (Demising)
a. Partitions
Partitions separating premises shall be constructed of metal
studs with two layers of 5/8" wallboard on each side extending
above the ceiling, with one layer of wallboard on each side
extended to the underside of the floor construction above, or
equal.
b. Doors
All doors shall have pressed metal door Frames or wood door
frames and casings, as Landlord may elect. The doors shall be
solid core wood doors and shall be provided with two pairs of
butts, a lockset, and doorstop where required. A door closer
will be provided for the principal entrance to the premises and
at such additional locations as may be required by the local
code. The locksets which are provided at the entrance will be
master-keyed to building standard and shall be Xxxxxxx, Yale and
Towne, Schlage or equal.
2. Partitions Separating Offices within Single Premises
a. Partitions
The partitions shall be constructed of metal studs with one layer
of 5/8" wallboard on each side or equal.
39
b. Doors
The swing doors shall have pressed metal door frames or wood
frames and casings, as Landlord may elect. The doors shall be
solid core and shall be provided with two pairs of butts, latch
sets, and doorstop where required. The number of doors shall not
exceed one door for each 25 lineal feet of allowed partitions.
All hardware shall be Xxxxxxx, Yale and Towne, Schlage or equal.
3. Standard Quality of Partitions
The total lineal footage of partitions shall not exceed one lineal
foot for each 15 square feet of (i) Net Rentable Area/1/ for multi-
tenant floors or (ii) Gross Area1, not including building core area,
for single-tenant floors.
C. Ceilings
1. Mechanically suspended, 24" x 24" exposed slotted tee system with
fissured acoustic ceiling tiles, Class "A" (incombustible), 24" x 24",
square edged.
2. The mechanical suspension system shall be of the concealed type.
D. Lighting
1. At Landlord's election, either: (i) recessed 18 cell parabolic
lighting fixtures (2' x 4') with three (3) 35-watt rapid start tubes
to the extent of one such fixture per 85 square feet (average) of (x)
New Rentable Area for multi-tenant floors or (y) Gross Area, excluding
core area, for single-tenant floor, or (ii) a (1' x 4') recessed
fluorescent lighting fixture with two (2) 35-wart rapid start tubes to
the extent of one such fixture per seventy (70) square feet (average)
of (x) New Rentable Area for multi-tenant floors or (y) Gross Area,
excluding core area, for single-tenant floors, shall be installed by
Landlord. Where required by design conditions, smaller recessed
florescent fixtures may be substituted at Landlord's option.
2. Miscellaneous fixtures, fluorescent and/or incandescent, shall be
installed in mechanical spaces, toilet areas, stairwell and utility
areas to conform to building operation requirements and existing
codes.
3. Wall switches of the single pole, quiet type to the extent of one
switch for each ten lighting fixtures averaged shall be installed by
Landlord. Each private office shall have at least one wall switch
(which will be counted in the allowance).
E. Electrical and Telephone
1. Duplex wall base and floor receptacles (not to exceed one per 125
square feet of (i) Net Rentable Area for multi-tenant floors or (ii)
Gross Area, not including building core area, for single-tenant
floors) shall be installed by Landlord. It is understood that not
more than 10% of the total number of such receptacles may be located
in the floor.
2. Landlord will make the necessary provisions for wall and baseboard
telephone outlets (not to exceed one per 200 square feet of (i) Net
Rentable Area for multi-tenant floors or (ii) Gross Area, not
including building core area, for single-tenant floors). Installation
of the wiring by the
----------
/1/ The terms "Gross Area" and "Net Rentable Area" used in computing allowances
under this Exhibit 3 refer to definitions appearing in Article 7 of the
Lease.
40
telephone company is the responsibility of Tenant. It is understood
that not more than 10% of the total number of such outlets may be
located in the floor.
3. Power wiring circuits, including terminal device (208 Volt 3 Phase,
grounded) shall be made available to Tenant as may be agreed between
the parties in connection with Tenant equipment at the rate of one per
6,000 square feet of (i) Net Rentable Area for multi-tenant floors or
(ii) Gross Area not including building core area, for single tenant
floors.
F. Plumbing
1. Wet stacks will be available on the typical office floor containing
cold water, waste, and vents. Tenant equipment can be connected at
these points by the Landlord at the Tenant's expense.
G. Painting and Wall Covering
1. All wall surface shall receive a finish coat of building standard
Polomyx paint over one prime coat, or equal, as Landlord may elect.
Doors and frames shall receive one coat of enamel over one prime coat
or shall have a natural finish of one coat of sealer and one coat of
varnish.
2. Paint colors shall be selected from the building standard color chart
with not more than one accent color (flat paint) on one wall in each
individual office.
3. Where Tenant desires wall covering, Landlord shall initially prepare
walls to receive wall covering as designated by Tenant. Such wall
covering shall be furnished and installed at Tenant's expense. Wall
covering shall be subject to Landlord's approval prior to
installation.
4. Public areas, corridors and lobbies shall be finished in accordance
with the Landlord's Architect's schedule of room finish.
H. Sun-Control Blinds
Landlord shall furnish and install sun-control blinds or drapes, including
the tracks therefor, in colors selected by Landlord.
I. Mechanical
1. Landlord will install one thermostat for every four perimeter units in
premises served by the Building perimeter system.
2. Landlord will install one supply diffuser with 6 feet of flexible hose
for every 200 square feet of (i) Net Rentable Area for multi-tenant
floors or (ii) Gross Area not including core area, for single-tenant
floors in any premises served by the Building central air distribution
system.
41
EXHIBIT 4
BUILDING SERVICES
-----------------
A. General Cleaning (Monday through Friday)
1. All stone, ceramic, tile, marble, terrazzo and other unwaxed flooring
to be swept nightly, using approved dust-down preparation.
2. All wood, linoleum, vinyl-asbestos, vinyl and other similar types of
floors to be swept or dry mopped nightly, using dust-down preparation;
all carpeting and rugs in the main traffic areas (corridors, reception
areas, etc.) to be vacuumed nightly and all other carpeted areas to be
vacuumed at least once each week.
3. Wax all public areas monthly.
4. Hand dust all furniture, files and fixtures nightly.
5. Empty all waste receptacles nightly and remove waste paper and waste
materials, including folded paper boxes and cartons, to a designated
area.
6. Empty and clean all ash trays and screen all sand urns nightly.
7. Wash and clean all water fountains and coolers nightly. Sinks and
floors adjacent to sinks to be washed nightly.
8. Hand dust all door and other ventilating louvers within reach, as
necessary, but not less often than monthly.
9. Dust all telephones as necessary.
10. Keep lockers and janitor sink rooms in a neat, orderly condition at
all times.
11. Wipe clean all bright metal work as necessary.
12. Check all stairwells throughout entire building nightly and keep in
clean condition.
13. Metal doors and trim of all public elevator cars to be properly
maintained and kept clean.
B. Common Area Lavatories
1. Sweep and wash all lavatory floors nightly, using proper non-scented
disinfectants.
2. Clean all mirrors, powder shelves, bright work and enameled surfaces
in all lavatories nightly. Scour, wash and disinfect all basins,
bowls and urinals using non-scented disinfectants.
3. Police lavatories during the day with matron or xxxxxx to pick up
waste and replenish materials.
4. Wash all toilet seats nightly.
5. Fill toilet tissue holders nightly.
6. Empty paper towel receptacles nightly.
42
7. Empty sanitary disposal receptacles nightly.
8. Thoroughly clean all wall tile and stall surfaces as necessary.
C. High Dusting
Do all high dusting (not reached in nightly cleaning) quarterly which
includes the following:
1. Dust all pictures, frames, charts, graphs, and similar wall hangings.
2. Dust exposed pipes, ventilation and air conditioning louvers, ducts
and high moldings.
D. Window Cleaning
1. All exterior windows (except for any retail/commercial areas) from the
second floor and above will be cleaned inside and outside except when
cleaning is rendered impracticable by inclement weather.
2. Entrance doors and elevator lobby -lass to be cleaned daily and kept
in a clean condition at all times during the day.
3. Wipe down all metal window frames as necessary but rot less often than
monthly.
E. Building Lobbies
1. Floors to be swept and washed or vacuumed nightly, and machine
scrubbed according to Building Standard frequency.
2. Carpeting in passenger elevator cabs to be vacuum cleaned nightly.
3. Lobby walls to be dusted as often as necessary, but not less than
weekly.
4. Screen and clean sand urns nightly.
5. Clean all unpainted metal work in a manner appropriate to original
finish.
F. Porters
Necessary number of day porters under supervision will be assigned for the
following services:
1. Service all public and building operating space throughout the
Building.
2. Keep elevator cars clean and neat during the day.
3. Maintain lobbies clean and, during wet weather, moped dry to the
extent practicable.
4, Dust and rub down all elevator doors, frames, telephone booths and
directories daily.
5. Sweep sidewalks, ramps, etc. daily.
6. Clean roofs and setbacks as often as necessary.
7. Maintain firehose and equipment clean.
43
8. Lay and remove lobby runners as necessary.
9. Replenish toilet tissue, towels and other supplies in lavatories.
10. Maintain fan rooms, motor rooms and air conditioning rooms in clean
condition.
11. Check stairways and keep same neat and clean during the day.
12. Clean exterior columns, exterior signs and metal work, standpipe and
sprinkler system, walkways and stairs as necessary.
13. If directed by superintendent, fill towel and soap dispensers and
perform any emergency cleaning required.
44
EXHIBIT 5
TERM COMMENCEMENT DATE LETTER
-----------------------------
Reference is made to a Lease dated August __, 1999 by and between
Metropolitan Life Insurance Company, as Landlord, and eDocs, Inc., as Tenant.
The parties hereto hereby confirm and agree that:
1. The Term Commencement Date under the Lease is _____________________;
2. The Rent Commencement Date under the Lease is ______________, 1999; and
3. The Termination Date under the Lease is _______________, 2003.
EXECUTED under seal as of this ___ day of ___________, 1999.
LANDLORD: TENANT:
METROPOLITAN LIFE INSURANCE COMPANY EDOCS, INC.
On behalf of a co-mingled separate account
By: SSR Realty Advisors, Inc., its
Investment Advisor
By: _________________________________ By: _______________________________
(Name) (Title) (Name) (Title)
Hereunto Duly Authorized Hereunto Duly Authorized
45
EXHIBIT 6
FORM OF LETTER OF CREDIT
------------------------
BENEFICIARY: ISSUANCE DATE:
_________________,199_
METROPOLITAN LIFE
INSURANCE COMPANY IRREVOCABLE STANDBY
(LANDLORD) LETTER OF CREDIT NO.
ACCOUNTEE/APPLICANT: MAXIMUM/AGGREGATE
CREDIT AMOUNT:
USD: $139,028.16
EDOCS, INC.
(TENANT)
GENTLEMEN:
We hereby establish our irrevocable letter of credit in your favor for account
of the applicant up to an aggregate amount not to exceed One Hundred Thirty-Nine
Thousand Twenty-Eight and 16/100 US Dollars ($139,028.16) available by your
draft(s) drawn on ourselves at sight accompanied by:
Your statement, signed by a purportedly authorized officer/official certifying
that the Beneficiary is entitled to draw upon this Letter of Credit (in the
amount of the draft submitted herewith) pursuant to Paragraph 1 of the Rider to
the Lease (the "Lease") dated July 23, 1999 by and between METROPOLITAN LIFE
INSURANCE COMPANY, as Landlord, and EDOCS, INC., as Tenant.
Draft(s) must indicate name and issuing bank and credit number and must be
presented at this office.
You shall have the right to make partial draws against this Letter of Credit,
from time to time.
Except as other-,vise expressly stated herein, this Letter of Credit is subject
to the "International Standby Practice for Documentary Credits, International
Chamber of Commerce, Publication No. 590 (1998 Revision)".
This Letter of Credit shall expire at our office on _______________, 1999 (the
"Stated Expiration Date"). It is a condition of this Letter of Credit that the
Stated Expiration Date shall be deemed automatically extended without amendment
for successive one (1) year periods from such Stated Expiration Date unless at
least forty-five (45) days prior to such Stated Expiration Date )or any
anniversary thereof) we shall notify you and the Accountee/Applicant in writing
by registered mail (return receipt) that we elect not to consider this Letter of
Credit extended for any such additional one (1) year period.
46
EXHIBIT 7
EXCLUDED OPERATING COSTS
------------------------
Notwithstanding anything to the contrary in this Lease contained, the following
items shall be excluded from "Operating Costs" as used in this Lease:
(a) costs incurred in connection with the making of repairs or
replacements which are the obligation of another tenant or occupant of
the Building;
(b) advertising, marketing, promotional, public relations or brokerage
fees, commissions or expenditures;
(c) except to the extent included in the Annual Charge-Off for capital
expenditures which are permitted and included in Operating Costs
pursuant to Article 9.1(g), financing and refinancing costs in respect
of any mortgage or security interest placed upon the Building or any
portion thereof, including payments of principal, interest, finance or
other charges, and any points and commissions in connection therewith;
(d) interest or penalties for any late or failed payments by Landlord
under any contract or agreement unless resulting from Tenant's failure
to pay when and as due Tax Excess or Operating Expenses Excess;
(e) costs (including, without limitation, attorneys' fees and
disbursements) incurred in connection with any judgment, settlement or
arbitration award resulting from any tort liability;
(f) rent or other charges payable under any ground or underlying lease;
(g) costs of electrical or other utilities services furnished directly to
any premises of other tenants of the Building where such utility is
separately metered to the premises or Tenant pays a separate charge
therefor;
(h) costs incurred in connection with Landlord's preparation, negotiation,
dispute resolution and/or enforcement of leases, including courts
costs and attorneys' fees and disbursements in connection with any
summary proceeding to dispossess any tenant, or incurred in connection
with disputes with prospective tenants, employees, consultants,
management agents, leasing agents, purchasers or mortgagees;
(i) costs of any additions to or expansions of the Building;
(j) costs of repairs, restoration or replacements occasioned by fire or
other casualty or caused by the exercise of the right of eminent
domain, whether or not insurance proceeds or condemnation award
proceeds are recovered or adequate for such purposes; provided
however, that the costs of any casualty damage repairs may be included
in Operating Costs to the extent that the same are within Landlord's
deductible.
(k) an amount equal to all amounts received by Landlord (x) through
proceeds of insurance to the extent the proceeds are compensation for
expenses which (i) previously were included in Operating Costs
hereunder, (ii) are included in Operating Costs for the subsequent
operating year in which the insurance proceeds are received or (iii)
will be included as Operating Costs in a subsequent operating year or
(y) as rebates or credits;
47
(1) legal and other professional fees for matters not relating to the
normal administration and operation of the Building, or relating to
matters which are excluded from Operating Costs for the Building;
(m) the cost to make improvements, alterations and additions to the
Building which are required in order to render the same in compliance
with existing laws, rules, orders regulations and/or directives which
are in effect as of the Execution Date of the Lease;
(n) costs incurred in the removal, abatement or other treatment of
underground storage tanks or Hazardous Substances present in the
Building or on the Land, provided that this Paragraph (n) shall not be
deemed to exclude costs of removing, abating, or treating either: (i)
materials or substances which exist in the Building or the Property as
of the Execution Date of this Lease but which are not, as the
Execution Date of this Lease, considered to be Hazardous Substances
under applicable Legal Requirements, or (ii) materials or substances
which are introduced to the Building or the Land after the Execution
Date but which are not, as of the date of such introduction to the
Building or the Land, considered to be Hazardous Substances under
applicable Legal Requirements.
(o) depreciation, except to the extent expressly permitted under Article
9.1(g);
(p) amounts paid to subsidiaries or affiliates o C Landlord for services
rendered to the Building to the extent such amounts exceed the
competitive costs for delivery of such services were they not provided
by such related parties; and
(q) management fees to the extent in excess of competitive rates.
48
EXHIBIT 8
Tenant's Removable Property
---------------------------
The following items whether or not attached to the space will be considered
tenant's removable property in accordance with Article 11:
. Universal Power Supply(s) installed in computer room and computer labs.
. All computer, hub and network racking systems installed in computer rooms
and computer labs.
. Phone systems and patch panels related to phone systems installed in space.
. Modular partition to section off computer lab area in south side of space,
if any.
49
Exhibit 9
---------
Landlord's Work
---------------
The following improvements and repairs will be completed by the Landlord at
Landlord's expense by September 15, 1999:
Rentable storage area (marked as Area X on Lease Plan, Exhibit 2) will be
improved as follows:
. Room immediately adjacent to the building management office will be
carpeted.
. Two new doorways will be added to the interior wall as planned in Exhibit
10, Tenant's Initial Improvement Plan.
. Access door leading to SystemSoft storage room within Area X will be
removed and walled off.
Wall and Ceiling Repairs:
. Gouges will be removed and repainted on green wall in south side of space
adjacent to storage rooms behind building management.
. Metal screws will be removed, holes patched and repainted on blue wall
under warning light in south side of space.
. Holes in ceiling tiles and walls relating to former tenant's modular wall
for training area in south side of space will be repaired and repainted.
. Gouges will be patched and repainted on white wall near electrical room and
bathrooms.
. Holes will be patched and repainted in white walls in hallway north of the
bathrooms.
. Holes in walls of Northside Conference Room 1 (white board space) will be
repaired and repainted.
. Holes in walls of Northside Conference Room 2 (white board space) will be
repaired and repainted.
. Holes in walls of Northside Meeting Room A (white board space) will be
repaired and repainted.
. Holes in walls of Northside Meeting Room B (white board space) will be
repaired and repainted.
. Holes in walls of Northside Meeting Room C (white board space) will be
repaired and repainted.
. Gouges in blue wall in north side of space adjacent to rear door access
will be repaired and repainted.
. Metal picture hangers will be removed, holes patched and repainted on
yellow round wall near entrance to space.
Broom Clean will include:
. White wall in north corner space will be washed.
50
. Kitchen cabinets and floors will be cleared and cleaned.
. Restrooms will be cleaned.
51
EXHIBIT 10
TENANT INITIAL WORK PER PLANS DRAWN BY
XXXXXXXX/XXXXXXX & ASSOCIATES, INC. INCLUDING:
T.1 Legends, Room Finish Schedules, Partition Types, Misc. Details, Door
Schedules, Door & Frame Types, Head & Jamb Details
Undated Progress Set
A0.1 General Specifications 8/3/99 Progress Set
A1.1 Partition Plan 8/3/99 Progress Set
A2.1 Reflected Ceiling Plan 8/3/99 Progress Set
A3.1 Electrical Plan 8/3/99 Progress Set
Also, attached please find and Exhibit Drawing for the eDocs space.
52
RIDER TO LEASE
LANDLORD: Metropolitan Life Insurance Company
TENANT: eDocs, Inc.
The subject Lease is hereby amended as follows:
1. LETTER OF CREDIT
A. Tenant acknowledges that Landlord is unwilling to execute the Lease
unless Tenant provides Landlord with additional security for Tenant's
obligations under the Lease. Therefore, Tenant shall, subject to Subparagraph F
of this Paragraph 1, deliver to Landlord, on the date that Tenant executes and
delivers the Lease to Landlord, an Irrevocable Standby Letter of Credit ("Letter
of Credit") which shall be (1) in the form attached hereto as Exhibit 6, (2)
issued by a bank or other institutional lender reasonably acceptable to
Landlord, (3) in an amount equal to One Hundred Thirty-Nine Thousand Twenty-
Eight and 16/100 ($139,028.16) Dollars ("Letter of Credit Amount") and (4) for a
term of one (1) year, subject to extension in accordance with the terms of the
Letter of Credit. Tenant shall, on or before the date thirty (30) days prior to
the expiration of the term of such Letter of Credit, deliver to Landlord a new
Letter of Credit satisfying the foregoing conditions ("Substitute Letter of
Credit") in lieu of the Letter of Credit then being held by Landlord. Such
Letter of Credit shall be automatically renewable in accordance with the second
to last grammatical paragraph of Exhibit 6; provided that, in such event, Tenant
shall be required to deliver a Substitute Letter of Credit satisfying the
conditions hereof, on or before the date thirty (30) days prior to the
expiration of the term of such Letter of Credit, if the issuer of such Letter of
Credit gives notice of its election not to renew such Letter of Credit for any
additional period pursuant thereto.
B. On the conditions that, as of the second anniversary of the Rent
Commencement Date: (i) Tenant is not in default of its obligations under the
Lease, and (ii) Tenant has not previously defaulted in its obligations under the
Lease, after the giving of any applicable notice and the expiration of any
applicable grace period, more than one time, and (iii) and that the Lease is in
full force and effect, then the Letter of Credit Amount shall be reduced to
Forty-Six Thousand Three Hundred Forty-Two and 72/100 ($46,342.72) Dollars. The
reduction of the Letter of Credit Amount may be effected by either: (i) the
exchange of the existing Letter(s) of Credit then being held by Landlord for a
new Letter of Credit satisfying the requirements of this Paragraph 1 of the new
Letter of Credit Amount, or (ii) the issuance by the issuing bank of an
amendment of the existing Letter(s) of Credit which is accepted by Landlord in
writing, of an amendment to the existing Letter(s) of Credit so that Landlord
will be holding a Letter of Credit(s) in the new Letter of Credit Amount.
C. In the event that Tenant is in default, after the giving of any
applicable notice and the expiration of any applicable grace periods, of its
obligations under the Lease, then the Landlord shall have the right, at any time
after such event, without giving any further notice to Tenant, to draw down from
said Letter of Credit (Substitute Letter of Credit or Additional Letter of
Credit, as defined below, as the case may be) (a) the amount necessary to cure
such default or (b) if such default cannot reasonably be cured by the
expenditure of money, to exercise all rights and remedies Landlord may have on
account of such default, the amount which, in Landlord's bona fide business
opinion, is necessary to satisfy Tenant's Liability in account thereof. In the
event of any such draw by the Landlord, Tenant shall, within fifteen (15)
business days of written demand therefor, deliver to Landlord an additional
Letter of Credit ("Additional Letter of Credit") or cash (by check or wire
transfer) satisfying the foregoing conditions, except that the amount of such
Additional Letter of Credit shall be the amount of such draw. In addition, in
the event of a termination based upon the default of Tenant under the Lease
(i.e. after the giving of any applicable notice and the expiration of any
applicable grace periods), or a rejection of the Lease pursuant to the
provisions of the Federal Bankruptcy Code, Landlord shall have the right to draw
upon the Letter of Credit (from time to time, if necessary) to cover the full
amount of damages and other amounts due from Tenant to Landlord under the Lease.
Any amounts so drawn shall, at Landlord's election, be applied first to any
unpaid rent and other charges which were due prior to the filing of the petition
for protection under the Federal Bankruptcy Code.
D. In the event that Tenant fails timely to deliver to Landlord a
Substitute Letter of Credit, then the Landlord shall have the right, at any time
after such event, without giving any further notice to Tenant or to
53
Landlord, to draw down the Letter of Credit (or Substitute Letter of Credit
and/or Additional Letter(s) of Credit) and to hold the proceeds thereof
("Security Proceeds") in a segregated bank account in the name of the Landlord
as security for Tenant's obligations under the Lease in accordance with the
provisions of this Paragraph 1.
E. To the extent that Landlord has not previously drawn upon any Letter of
Credit, Substitute Letter of Credit, Additional Letter of Credit or Security
Proceeds (collectively "Collateral") held by the Landlord, Landlord shall,
within thirty (30) days after the later of: (x) of the expiration of the Lease
term, and (y) the delivery of the premises to Landlord, free and clear of all
occupants claiming by, through or under Tenant, return such Collateral to Tenant
less any amounts then due from Landlord.
F. In no event shall the proceeds of any Letter of Credit be deemed to be
a prepayment of rent nor shall it be considered as a measure of liquidated
damages.
G. Landlord acknowledges that Tenant has requested that Tenant have the
right to deliver the Letter of Credit after the date that Tenant executes and
delivers the Lease to Landlord, and Landlord has agreed, subject to the
provisions of this Subparagraph F, to such late delivery. Therefore,
notwithstanding the provisions of Subparagraph A of this Paragraph 1, if Tenant
delivers to Landlord, at the time that Tenant executes and delivers this Lease
to Landlord, evidence reasonably satisfactory to Landlord that Tenant has
applied to the issuing bank for the issuance of the Letter of Credit, Tenant
shall may defer delivering the Letter of Credit to Landlord until August 24,
1999. Tenant's failure to deliver the Letter of Credit to Landlord on or before
August 24, 1999 shall be deemed to be an event of default by Tenant permitting
Landlord to terminate this Lease pursuant to Article 21, without the need for
any notice to Tenant pursuant to Article 21.7.
2. TENANT'S OPTION TO EXTEND THE TERM OF THE LEASE
A. On the conditions, which conditions Landlord may waive, at its
election, by written notice to Tenant at any time, that Tenant is not in default
of its covenants and obligations under the Lease, and that eDocs, Inc. has not
assigned its interest in the Lease or subleased more than twenty-five (25%)
percent of the Total Rentable Area of the Premises to anyone other than an
Affiliated Entity and/or any Permitted Successor (each as defined in Article
16), both as of the time of option exercise and as of the commencement of the
hereinafter described additional term, Tenant shall have the option to extend
the term of this Lease for one (1) additional three (3) year term ("Extension
Term"), such additional term commencing as of the expiration of the initial term
of the Lease. Tenant may exercise such option to extend by giving Landlord
written notice on or before the date nine (9) months prior to the expiration
date of the initial term of the Lease. Upon the timely giving of such notice,
the term of this Lease shall be deemed extended upon all of the terms and
conditions of this Lease, except that Landlord shall have no obligation to
construct or renovate the premises and that the Yearly Rent, Operating Costs in
the Base Year, and Tax Base during such additional term shall be as hereinafter
set forth. If Tenant fails to give timely notice, as aforesaid, Tenant shall
have no further right to extend the term of this Lease, time being of the
essence of this Paragraph 2.
B. Yearly Rent. The Yearly Rent during the additional term shall be based
-----------
upon the Fair Market Rental Value, as defined in Paragraph 3 of this Rider, as
of the commencement of the additional term, of the premises then demised to
Tenant.
C. Tenant shall have no further option to extend the term of the Lease
other than the one (1) additional three (3) year term herein provided.
D. Notwithstanding the fact that upon Tenant's exercise of the herein
option to extend the term of the Lease such extension shall be self-executing,
as aforesaid, the parties shall promptly execute a lease amendment reflecting
such additional term after Tenant exercises the herein option, except that the
Yearly Rent payable in respect of such additional term, the Operating Costs in
the Base Year during such additional term, and the Tax Base during such
additional term, may not be set forth in said amendment. Subsequently, after
such Yearly Rent, Operating Costs in the Base Year, and Tax Base are determined,
the parties shall execute a written agreement confirming the same. The
execution of such lease amendment shall not be deemed to waive any of the
conditions to
54
Tenant's exercise of its rights under this Paragraph 2, unless otherwise
specifically provided in such lease amendment.
3. DEFINITION OF FAIR MARKET RENTAL VALUE
For the purposes of this Rider:
A. "Fair Market Rental Value" shall be computed as of the date in question
at the then current annual rental charge (i.e., the sum of Yearly Rent plus
escalation and other charges), including provisions for subsequent increases and
other adjustments for leases executed within the previous six month period in
comparable space located in the Building, or if no leases or agreements to lease
were being negotiated (as evidenced by signed letters of intent) or executed in
the Building within such six month period, the Fair Market Rental Value shall be
determined by reference to leases or agreements to lease executed for comparable
space located elsewhere in first-class office buildings located in the
Natick/Framingham suburban area within the previous six month period. In
determining Fair Market Rental Value, the following factors, among others, shall
be taken into account and given effect: size, location of premises, lease term,
condition of building, services provided by the Landlord, tenant improvement
allowances, rent, concessions, building amenities and base years.
B. For purposes of determining the Fair Market Rental Value, the following
adjustments shall be made to the Operating Costs in the Base Year and the Tax
Base: Operating Costs in the Base Year shall be equal to the actual amount of
Operating Costs for the Operating Year during which the Extension Term
commences, and the Tax Base shall equal the actual amount of Taxes for the
fiscal/tax year during which the Extension Term commences.
C. Dispute as to Fair Market Rental Value
(1) Landlord shall initially designate Fair Market Rental Value and
Landlord shall furnish data in support of such designation. In any event,
Landlord shall give its designation of Fair Market Rental Value within
Fifteen (15) days after Landlord's receipt of Tenant's written request for
such designation, provided that Landlord receives such request on or after
the date eight (8) months prior to the commencement of the Extension Term.
If Tenant disagrees with Landlord's designation of Fair Market Rental
Value, Tenant shall have the right, by written notice given within thirty
(30) days after Tenant has been notified of Landlord's designation to
submit such Fair Market Rental Value to appraisal, as hereinafter set
forth. Landlord's designation shall not be binding upon Landlord if such
Fair Market Rental Value is submitted to broker determination, and if
necessary, appraisal, as hereinafter set forth.
(2) Fair Market Rental Value shall be submitted to as follows:
Landlord and Tenant shall each notify the other of its chosen broker within
ten (10) business days following the call for broker determination. Each
broker shall submit its determination of such Fair Market Rental Value to a
neutral third party ("Neutral") to be agreed upon by the parties on the
date ten (10) business days after the last broker to be selected. The
Neutral shall open such determinations at the same time. If the lower
determination is not less than ninety (90%) percent of the higher
determination, then the Fair Market Rental Value shall be equal to the
average of the two determinations. Otherwise, the parties shall select an
appraiser satisfying the qualifications set forth in Subparagraph (4)
below, and such Fair Market Rental Value shall be determined as hereinafter
set forth.
(3) If the parties fail to agree upon an appraiser within ten (10)
business days after the broker determinations have been opened, then they
shall notify the President of the Boston Bar Association (or such
organization as may succeed to said Boston Bar Association) and request him
to select an impartial appraiser within ten (10) business days of such
request.
(4) The appraiser shall be M.A.I. (or its successor) qualified. The
appraiser shall be impartial and shall have had no dealings with either
party for at least a ten (10) year period preceding his or her
55
selection. Each party shall bear the expense of the broker which it
selects. Landlord and Tenant shall bear the expense of the appraiser (if
any) equally.
(5) The appraiser shall not be informed of the determinations of the
other two appraisers, but either party shall otherwise be permitted to make
written submissions to the appraiser (with copies to the other party) of
any facts which such party deems material to such decision; provided that
such submissions are made within ten (10) business days after the selection
of the appraiser.
(6) The appraiser shall submit his or her appraisal of such Fair
Market Rental Value to the Neutral within thirty (30) days after his or her
selection as appraiser. The Fair Market Rental Value shall be equal to the
average of the appraisal and the closest broker determination submitted to
the Neutral.
(7) The decision of the brokers, of the brokers and of the appraiser,
in accordance with this Subparagraph C, shall be binding and conclusive,
and judgment upon the award or decision of the brokers and, if applicable,
the appraiser may be entered in the appropriate court of law (as identified
on Exhibit 1); and the parties consent to the jurisdiction of such court
and further agree that any process or notice of motion or other application
to the Court or a Judge thereof may be served outside the State wherein the
Building is situated by registered mail or by personal service, provided a
reasonable time for appearance is allowed.
(8) If the dispute between the parties as to a Fair Market Rental
Value has not been resolved before the commencement of Tenant's obligation
to pay rent based upon such Fair Market Rental Value, then Tenant shall pay
Yearly Rent and other charges under the Lease in respect of the premises in
question based upon the Fair Market Rental Value designated by Landlord
until either the agreement of the parties as to the Fair Market Rental
Value, or the decision of the appraisers, as the case may be, at which time
Tenant shall pay any underpayment of rent and other charges to Landlord, or
Landlord shall refund any overpayment of rent and other charges to Tenant.
4. TENANT'S RIGHT OF FIRST OFFER
On the conditions, which conditions Landlord may waive, at its election, by
written notice to Tenant at any time, that Tenant is not in default of its
covenants and obligations under the Lease, and that eDocs, Inc. has not assigned
its interest in the Lease or subleased more than thirty (30%) percent of the
Total Rentable Area of the Premises to anyone other than an Affiliated Entity
and/or any Permitted Successor (each as defined in Article 16), both at the time
that Landlord is required to give Landlord's Notice, as hereinafter defined,
Tenant shall have the following right to lease the RFO Premises, as hereinafter
defined, when the RFO Premises become available for lease to Tenant, as
hereinafter defined.
A. Definition of RFO Premises
The RFO Premises consist of two areas located on the second floor of
the Building, one area ("Area A"), containing 11,274 square feet of Total
Rentable Area and another area ("Area B"), containing 10,530 square feet of
Total Rentable Area. The RFO Premises are shown on Lease Plan, Exhibit 2.
B. Definition of Available for Lease to Tenant
Each RFO Premises shall be deemed to be "available for lease to
Tenant" if, during the term of this Lease, Landlord, in its bona fide business
judgment, determines that such area will become available for leasing to Tenant
(i.e., when Landlord determines that the term of the lease of the then current
tenant of Area A or Area B, as the case may be, will expire, terminate or be
rejected, and such tenant, and anyone claiming under such tenant, will vacate
such Area). In no event shall Tenant have any rights under this Paragraph 4 on
or after the date nine (9) months prior to the expiration of the initial term of
the Lease (i.e., Landlord shall have no obligation to give Landlord's Notice, as
hereinafter defined, to Tenant on or after the date nine (9) months prior to the
expiration of the initial term of the Lease. Landlord represents and warrants
(i) that the lease of the tenant for Area A expires on
56
October 31, 2006, but such tenant has filed for protection under Chapter 11 of
the Federal Bankruptcy Act and may reject such Lease, and the lease of the
tenant for Area B expires on Xxxxx 00, 0000, (xx) that no other tenants have
rights to lease Area A and Area B, and (iii) the leases of the tenants of Area A
and Area B will not be extended.
C. Exercise of Right to Lease First RFO Premises
Landlord shall give Tenant written notice ("Landlord's Notice") at the time
that Landlord determines, as aforesaid, that an RFO Premises will become
available for lease to Tenant. Landlord's Notice with respect to an RFO
Premises shall be given at least thirty (30) days prior to the date that
Landlord reasonably estimates that such RFO Premises will become available to
Tenant. Landlord's Notice shall set forth the estimated Term Commencement Date
in respect of the RFO Premises, and, if the estimated Term Commencement Date is
on or after December 1, 1999, Landlord's designation of the Fair Market Rental
Value (as defined in Paragraph 2 hereof) applicable to the RFO Premises in
question. Tenant shall have the right, exercisable upon written notice
("Tenants Exercise Notice") given to Landlord within seven (7) business days
after the receipt of Landlord's Notice, to lease the RFO Premises in question.
If Tenant fails timely to give Tenant's Exercise Notice, Tenant shall have no
further right to lease such RFO Premises pursuant to this Paragraph 4. Upon the
timely giving of such notice, Landlord shall lease and demise to Tenant and
Tenant shall hire and take from Landlord, such RFO Premises, upon all of the
same terms and conditions of the Lease except as hereinafter set forth.
D. Lease Provisions Applying to RFO Premises
The leasing to Tenant of each RFO Premises shall be upon all of the same terms
and conditions of the Lease, except as follows:
(1) Term Commencement Date
The Term Commencement Date in respect of each RFO Premises shall
be the later of: (x) the estimated Term Commencement Date in respect of such RFO
Premises as set forth in Landlord's Notice, or (y) the date that Landlord
delivers possession of such RFO Premises to Tenant in "broom clean" condition,
free of all occupants and their possessions in good condition and repair.
Landlord agrees to use reasonable efforts (including the institution of eviction
proceedings) to deliver the RFO Premises on the estimated Term Commencement
Date.
(2) Yearly Rent
If the estimated Term Commencement Date, as set forth in
Landlord's Notice, is on or before November 30, 1999, then the Yearly Rent shall
be based upon the same Yearly Rent rental rate as is applicable, from time to
time, to the premises initially demised to Tenant. If such estimated Term
Commencement Date is on or after December 1, 1999, then the Yearly Rent rental
rate shall be based upon the Fair Market Rental Value, as defined in Paragraph 3
of this Rider, of such RFO Premises as of the Term Commencement Date in respect
of such RFO Premises.
(3) Condition of RFO Premises
Tenant shall take each RFO Premises "as-is" in its then (i.e. as
of the date of premises delivery) state of construction, finish, and decoration,
without any obligation on the part of Landlord to construct or prepare such RFO
Premises for Tenant's occupancy, except as provided in Paragraph 4D(l) above.
(4) Tenant's Proportionate Shares
Tenant's Proportionate Shares in respect of Area A and Area B
shall be 8.80% and 8.22%, respectively.
57
(5) Escalation Bases
If the estimated Term Commencement Date, as set forth in
Landlord's Notice, is on or before November 30, 1999, the Tax Base with respect
to the RFO Premises in question shall be the actual amount of Taxes for fiscal
year 2000 and Operating Costs in the Base Year with respect to such RFO Premises
shall be the actual amount of Operating Costs for calendar year 1999. If such
estimated Term Commencement Date is on or after December 1, 1999, then the Tax
Base and Operating Costs in the Base Year with respect to such RFO Premises
shall be determined in accordance with Paragraph 3 of the Rider to the Lease.
D. Execution of Lease Amendments
Notwithstanding the fact that Tenant's exercise of the above-described
option to lease an RFO Premises shall be self-executing, as aforesaid, the
parties hereby agree promptly to execute a lease amendment reflecting the
addition of an RFO Premises, except that the Yearly Rent payable in respect of
such RFO Premises, Operating Costs in the Base Year in respect of such RFO
Premises, and Tax Base in respect of such RFO Premises may not be as set forth
in such Amendment. At the time that such Yearly Rent, Operating Costs in the
Base Year and Tax Base are determined, the parties shall execute a written
agreement confirming the same. The execution of such lease amendment shall not
be deemed to waive any of the conditions to Tenant's exercise of the herein
option to lease the RFO Premises, unless otherwise specifically provided in such
lease amendment.
5. USE OF CAFETERIA AND HEALTH CLUB AT THREE APPLE HILL
Reference is made to the fact that a Tenant, The Mathworks, Inc.
("Mathworks") occupying space in Three Apple Hill and Two Apple Hill, currently
operates, for the use by Mathwork's officers, employees and business invitees, a
health club/fitness center ("Fitness Facilities") in the premises at Two Apple
Hill and a cafeteria ("Cafeteria") in the premises at Three Apple Hill. The
parties hereby acknowledge that Mathworks may (but shall have no obligation to),
in its sole and absolute discretion, elect to make any such Fitness Facilities,
Cafeteria, or both, available for use by Tenant. Use of such facilities by
Tenant shall be subject to such conditions that Mathworks shall from time to
time impose. Landlord shall have no liability to Tenant or Tenant's employees
based upon Tenant's use of such facilities.
58
