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EXHIBIT 10.14
office
LEASE DATED June , 1997
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section:
LANDLORD: 000 Xxxxxxxxxx Xxxxxx, LLC, a Massachusetts limited liability company
MANAGING AGENT: The Xxxxxxxx Companies, Inc.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000-0000
LANDLORD'S ADDRESS: c/o The Xxxxxxxx Companies, Inc.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000-0110
LANDLORD'S REPRESENTATIVE: The Xxxxxxxx Companies, Inc.
TENANT: MCK Telecommunications, Inc., a corporation organized and existing
under the laws of Alberta, Canada.
TENANT'S ADDRESS: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
BUILDING ADDRESS: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ANTICIPATED TERM COMMENCEMENT DATE: Sixty 960) days following the execution of
this Lease.
RENTABLE FLOOR AREA OF TENANT'S SPACE: 6968 Square Feet
RENTABLE FLOOR AREA OF THE BUILDING: 76,473 Square Feet
RENTABLE FLOOR AREA OF THE OFFICE AREAS: 66,139 Square Feet
TENANT'S SHARE OF BUILDING OPERATION
COSTS AND REAL ESTATE TAXES: 9.11%
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TENANT'S SHARE OF OFFICE OPERATION COSTS: 10.54%
BASE REAL ESTATE TAXES: Real Estate Taxes incurred on account of calendar 1997.
BASE BUILDING OPERATIONS COSTS: Building Operation Costs incurred on account of
calendar 1997.
BASE OFFICE OPERATION COSTS: Office Operation Costs incurred on account of
calendar 1997.
TERM: 60 calendar months (plus, if the Commencement Date is a day other than
the first day of a calendar month, the partial month beginning on the
Commencement Date and ending on the last day of the calendar month in which the
Commencement Date occurs).
EXPIRATION DATE: The last day of the 60th full calendar month following the
Commencement Date.
OPTION TO EXTEND: One period of 60 months.
ANNUAL RENT: a) For the period commencing on the Commencement Date and ending
on the last day of the 12th full calendar month during the Term
(inclusive) - $160,264.00 per annum (i.e. $13,355.33 per month,
and proportionately at such rate for any partial calendar month).
b) For the 13th - 24th full calendar months during the Term -
$163,748.00 per annum (i.e. $13,645.67 per month).
c) For the 25th - 36th full calendar months during the Term -
$167,232.00 per annum (i.e. $13,936.00 per month).
d) For the 37th - 44th full calendar months during the Term -
$174,200.00 per annum (i.e. $14,516.67 per month).
e) For the 49th - 60th full calendar months during the Term -
$177,684.00 per annum (i.e. $14,807.00 per month).
MONTHLY RENT: 1/12 of the annual Rent.
ADDITIONAL RENT: Any and all monies which Xxxxxxxx is authorized to collect
from Tenant hereunder which are not included in Annual Rent.
Additional Rent includes charges under Sections 2.6 and 2.9,
as well as any other monetary liability of Tenant which may
arise hereunder from time to time.
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SECURITY DEPOSIT: $80,132.00 (See also Sections 8.1 and 8.20 below.)
GUARANTOR(S): MCK Communications, Inc., a Nevada corporation.
PERMITTED USES: General office use.
BROKER(S): The Xxxxxxxx Companies, Inc.; and Xxxxxxxxx & Xxxx.
PUBLIC LIABILITY INSURANCE:
BODILY INJURY: $1,000,000 Per Occurrence
PROPERTY DAMAGE: $500,000 Per Occurrence
TENANT'S CONSTRUCTION REPRESENTATIVE: Xxxx Xxxxx
XXXXXXXX'S CONSTRUCTION REPRESENTATIVE: Xxx Xxxxx
1.2 EXHIBITS: The following Exhibits are incorporated as a part of this Lease:
EXHIBIT A -- Plan Showing Outline and Location of the Premises
EXHIBIT B -- Tenant's Floor Plans
EXHIBIT C -- Landlord's Services
EXHIBIT D -- Additional Provisions
EXHIBIT E -- Landlord's Building Standard Improvements
EXHIBIT F -- Plans Showing Outline and Location of the Temporary Premises
EXHIBIT G -- HVAC System Operational Standards
1.3 TABLE OF ARTICLES AND SECTIONS:
ARTICLE I -- Reference Data
1.1 Subjects Referred To................................................
1.2 Exhibits............................................................
1.3 Table of Articles And Sections .....................................
ARTICLE II -- Premises, Term and Rent
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2.1 The Premises........................................................
2.2 Rights To Use Common Facilities.....................................
2.3 Landlord's Reservations.............................................
2.4 Term................................................................
2.5 Monthly Rent Payments...............................................
2.6 Adjustment For Operating Expenses...................................
2.7 Electricity Expenses................................................
2.8 Accounting Periods..................................................
2.9 Late Payment/Dishonored Checks......................................
ARTICLE III -- Construction
3.1 Initial Condition Of The Premises...................................
3.2 Landlord's Work.....................................................
3.3 Alterations and Additions...........................................
3.4 General Provisions Applicable To Construction.......................
ARTICLE IV -- Landlord's Covenants; Interruptions and Delays
4.1 Landlord's Covenants................................................
4.1.1 Services Furnished By Landlord..............................
4.1.2 Additional Services Available To Tenant.....................
4.1.3 Roof, Exterior Wall, Floor Stab And Common Facility Repairs.
4.1.4 Quiet Enjoyment.............................................
4.2 Interruption And Delays In Services And Repairs, Etc................
ARTICLE V -- Tenant's Covenants
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5.1 Payments............................................................
5.2 Repair And Yield Up.................................................
5.3 Use ...........................................................
5.4 Obstructions; Items Visible From Exterior; Rules And Regulations....
5.5 Safety Appliances; Licenses; Compliance with Law....................
5.6 Assignment, Sublease................................................
5.7 Indemnity; Insurance................................................
5.8 Personal Property At Tenant's Risk; Xxxxxx's Casualty Insurance.....
5.9 Right Of Entry......................................................
5.10 Floor Load; Prevention Of Vibration And Noise.......................
5.11 Security
5.12 Personal Property Taxes.............................................
5.13 Tenant Holdover.....................................................
5.14 Hazardous Materials.................................................
ARTICLE VI -- Casualty and Taking
6.1 Fire Or Casualty....................................................
6.2 Eminent Domain......................................................
ARTICLE VII -- Default
7.1 Events Of Default...................................................
7.2 Damages.............................................................
ARTICLE VIII -- Miscellaneous.............................................
8.1 Security Deposit....................................................
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8.2 Notice Of Lease; Consent Or Approval; Notices, Bind And Inure;
Landlord's Estate...................................................
8.3 Landlord's Failure To Enforce.......................................
8.4 Acceptance Of Partial Payments Of Rent; Delivery Of Keys............
8.5 Cumulative Remedies.................................................
8.6 Partial Invalidity..................................................
8.7 Self-Help...........................................................
8.8 Tenant's Estoppel Certificate.......................................
8.9 Waiver Of Subrogation...............................................
8.10 All Agreements Contained............................................
8.11 Brokerage...........................................................
8.12 Submission Not An Option............................................
8.13 Relocation..........................................................
8.14 Costs Of Enforcement................................................
8.15 Exhibit D - Additional Provisions...................................
ARTICLE IX -- Rights of Parties Holding Prior Interests
9.1 Lease Subordinate...................................................
9.2 Modification, Termination Or Cancellation; Advance Payments Of
Rent................................................................
9.3 Rights Of Holder Of Mortgage To Notice Of Defaults By Landlord And
To Cure Same........................................................
9.4 Implementation of Article IX........................................
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ARTICLE II
PREMISES, TERM AND RENT
2.1 THE PREMISES: Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, Tenant's Space in the Building (as shown on Exhibit A, annexed),
excluding exterior faces of exterior walls, the common emergency stairways and
stairwells, elevators and elevator xxxxx, fan rooms, electric and telephone
closets, janitor closets, the central atrium (if any) and pipes, ducts,
conduits, wires and appurtenant Fixtures serving exclusively or in common other
parts of the Building, and, if Tenant's Space includes less than the entire
rentable area of any floor, excluding the common corridors, elevator lobby and
toilets located on such floor. Tenant's Space, subject to such exclusions, is
hereinafter referred to as the "Premises". The term "Building" means, the
building erected on the Lot, and the term "Lot" means all, and also any part of,
the land owned by Landlord on which the Building is located, plus any additions
thereto resulting from the change of any abutting street line. The term
"Property" means, collectively, the Building and the Lot. Tenant acknowledges
that Tenant has had the opportunity to confirm all floor area measurements set
forth herein, and that all rentable floor areas specified in Section 1.1 shall
be deemed conclusively to be accurate for all purposes, subject only to any
actual change in the physical configuration of the Building or the Premises (or
any part of either) occurring following the date hereof.
The floor area of the Building, the floor area of the Office Areas and the
floor area of the Premises have been determined by application of the "BOMA"
standard. A further statement of the rentable floor area of the Premises and the
useable floor area of the Premises is set forth on Exhibit A.
2.2 RIGHTS TO USE COMMON FACILITIES: Tenant shall have, as appurtenant to
the Premises, rights to use in common with others (subject to reasonable rules
and regulations from time to time made by Landlord of which Tenant is given
notice): (a) the common lobbies, corridors, stairways and elevators of the
Building, and the pipes, ducts, conduits, wires and appurtenant meters and
equipment serving the Premises in common with others, (b) common walkways
necessary for access to the Building, (c) if the Premises include less than the
entire rentable floor area of any floor, the common toilets, corridors and
elevator lobby of such floor, and (d) the parking areas serving the Building ---
all to the extent and in the location designated by Landlord from time to time.
2.3 LANDLORD'S RESERVATIONS: Landlord reserves the right from time to time,
without unreasonable interference with Tenant's use: (a) to install, use,
maintain, repair, replace and relocate, for service to the Premises and other
parts of the Building (or either), pipes, ducts, conduits, wires and appurtenant
Fixtures, wherever located in the Premises or the Building, and (b) to alter or
relocate any other common facility (including parking areas), provided that
substitutions are substantially equivalent to, or better than, the item which is
to be replaced.
2.4 TERM: Tenant shall have and hold the Premises for a period commencing
on that date (the "Commencement Date") which is the earlier of (a) that date on
which the Premises are ready for occupancy as provided in Section 3.2 and (b)
that date on which Xxxxxx commences occupancy of any portion of the Premises for
the Permitted Uses, and continuing until the Expiration Date unless
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sooner terminated as provided in this Lease. Promptly upon the occurrence of the
Commencement Date, Landlord and Xxxxxx shall execute a written instrument,
confirming the exact date of the Commencement Date.
2.5 MONTHLY RENT PAYMENTS: Tenant agrees to pay rent to Landlord, without
demand or any offset or reduction whatever (except as made in accordance with
the express provisions of this Lease), equal to the Annual Rent, in equal
installments of the Monthly Rent in advance for each calendar month included in
the Term (except as provided in the next succeeding sentence hereof); and, for
any portion of a calendar month at the beginning or end of the Term, at the
proportionate rate payable for such portion. Subject to the next succeeding
sentence hereof, each payment of Monthly Rent on account of any calendar month
during the Term shall be due and payable on the 25th day of tile immediately
preceding month. If the Commencement Date is other than the first day of a
calendar month, then the payment of Monthly Rent due on the Commencement Date
shall be the Monthly Rent allocable to tile period beginning on the Commencement
Date and ending on the last day of tile first full calendar month of the Term;
and, in such event, Xxxxxx's next payment on account of Monthly Rent (on account
of the second (2nd) full calendar month during the Term) shall be due and
payable on the twenty-fifth (25th) day of the first full calendar month of the
Term. (See also Section 8.18, below.)
2.6 ADJUSTMENT FOR OPERATING EXPENSES: For the purpose of this Section 2.6,
tile following terms shall have the following meanings:
A. Real Estate Taxes - real estate taxes levied against the Property,
including betterment assessments, so-called rent taxes and other
governmental charges, which may be charged, assessed or imposed upon
the Property, and reasonable expenses of any proceedings for abatement
of taxes. There shall be excluded from Real Estate Taxes income taxes,
excess profits taxes, excise taxes, franchise taxes and estate,
succession, inheritance and transfer taxes.
B. Building Operation Costs - ail costs and expenses incurred by Landlord
in connection with the maintenance and operation of the Property,
except for any Office Operation Costs (as defined below). Building
Operation Costs shall include without limitation, all costs and
expenses incurred by Landlord (a) in making repairs or replacements to
tile Building and its parking areas and other appurtenances, (b) in
carrying fire, casualty, rent and liability insurance upon and with
respect to the Property (including, Without limitation, insurance
carried under so-called "blanket" and/or "umbrella" policies, provided
however, that only such portion of the premiums for the so-called
"blanket" "umbrella" policies as is reasonably and equitably allocable
to the Property shall be included in Building Operation Costs), (c) in
providing trash pick-up service for the Building, and lighting,
plowing, cleaning, maintaining and beautifying the exterior of the
Building and the land and parking areas appurtenant to the Building and
tile landscaping and gardening (if any) thereof, (d) in paying wages,
unemployment taxes and benefits of personnel engaged in the management
and operation of the Building (appropriately pro-rated where a person's
duties are not limited solely to the Building),
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(e) in paying for water and sewerage charges imposed by the entity
providing such services, (f) in paying for all other utilities provided
to any portion of the Property other than the Office Areas, (g) in
causing the Building (other than the Office Areas) to comply with all
applicable building codes, regulations and other statutes (except as
expressly provided in Section 5.5, below), and (h) a management fee of
the product of 5% of the gross receipts from operation of the Property
and a fraction whose numerator is Building Operation Costs (exclusive
of this management fee) for the calendar year and whose denominator is
the sum of Building Operation Costs and Office Operation Costs (both
exclusive of a management fee) for the calendar year. (If, because the
Building is not completely occupied, Building Operation Costs are less
than the costs which would have arisen if the Building had been
completely occupied, Building Operation Costs will be deemed to be the
costs which (in Landlord's reasonable judgment) would have arisen if
the Building had been completely occupied.) (See also Section 2.6 A,
below.)
C. Office Operation Costs - all costs and expenses incurred by Landlord in
operating and maintaining the office areas of the Building (the "Office
Areas"), to the extent that such services are not intended to be
provided to the occupants of the Building as a whole. Office Operation
Costs shall include, without limitation, all costs and expenses
incurred by Landlord (a) in providing cleaning and cleaning supplies to
the Office Areas, (b) in providing HVAC and elevator service to the
Office Areas (including maintenance and replacement of relevant
facilities and equipment, when necessary), (c) in providing utilities
services to tile Office Areas (other than water and sewerage services),
(d) in causing the Office Areas to comply with all applicable building
codes, regulations and other statutes (except as expressly provided in
Section 5.5, below), and (e) a management fee of 5% of gross receipts
from the operation of the Property reduced by the management fee
described in clause (h) of subparagraph B. (If because the Office Areas
are not completely occupied, Office Operation Costs are less than the
costs which would have arisen if the Office Areas had been completely
occupied, Office Operation Costs will be deemed to be the costs which
(in Landlord's reasonable judgment) would have arisen if the Office
Areas had been completely occupied.) (See also Section 2.6 A. below.)
D. Real Estate Tax Excess - for any calendar year occurring partially or
wholly during tile Term, the amount, if any, by which Real Estate Taxes
exceed the Base Real Estate Taxes specified in Section 1.1.
E. Building Operation Cost Excess - for any calendar year occurring
partially or wholly during the Term, the amount, if any, by which
Building Operation Costs exceed the Base Building Operation Costs
specified in Section 1.1.
F. Office Operation Cost Excess - for any calendar year occurring
partially or wholly during the Term, the amount, if any, by which
Office Operation Costs exceed the Base Office Operation Costs specified
in Section 1.1.
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G. Tenant's Excess Obligation - for any calendar year occurring wholly
during the Term, the sum of (i) the Real Estate Tax Excess, multiplied
by Tenant's Share of Real Estate Taxes (as specified in Section 1.1),
(ii) the Building Operation Cost Excess, multiplied by Tenant's Share
of Building Operation Costs (as specified in Section 1.1) and (iii) the
Office Operation Cost Excess, multiplied by Xxxxxx's Share of Office
Operation Costs (as specified in Section 1.1). For the partial calendar
years at the beginning and end of the Term, Xxxxxx's Excess Obligation
shall be equal to Xxxxxx's Excess Obligation as determined pursuant to
the immediately preceding sentence, multiplied by a fraction whose
numerator is the number of days in the partial calendar year which is
included in the Term and whose denominator is 365.
Tenant shall pay to Landlord Xxxxxx's Excess Obligation for each calendar
year (or partial calendar year) during the Term. Tenant shall pay to Landlord,
monthly, on the days on which Monthly Rent is due and payable, a sum equal to
that reasonably estimated by Landlord for such purpose, such payments to
represent payments on account of Tenant's obligations under this Section 2.6.
From time to time, Xxxxxxxx shall have the right to adjust the amount of
Tenant's monthly payments. Following the end of each calendar year, Landlord
shall determine the exact amount of Tenant's Excess Obligation with respect to
the calendar year then ended, and, within twenty-one (21 days following Xxxxxx's
receipt of notice of such determination, appropriate adjustments shall be made
(either by additional payment by Tenant or refund by Landlord), so that the
amount of such adjustment when aggregated with the amount of Tenant's monthly
payments during the preceding calendar year will equal Xxxxxx's Excess
Obligation for such calendar year.
Tenant shall have the right, within ninety (90) days following Xxxxxx's
receipt of the notice of determination referred to in the immediately preceding
paragraph, to request further information concerning the matters in such notice
o f determination. Tenant's request shall set forth with reasonable specificity
the exact areas of Xxxxxx's inquiry. If Tenant shall so request, then Landlord
shall either allow Tenant to review Landlord's books and records or supply
photocopies of Landlord's records, so as to permit Tenant to confirm the
accuracy of Landlord's notice of determination. Nothing set forth in this
paragraph shall constitute a justification for Tenant's failure to pay Xxxxxx's
Excess Obligation in a timely manner, as set forth above. Instead, Tenant shall
pay Xxxxxx's Excess Obligation, as originally computed by Landlord, in a timely
manner: and as a result of Xxxxxx's subsequent examination of Landlord's
records, it shall be determined that Xxxxxxxx's notice of determination was in
error, such error shall be corrected by reimbursement to Tenant or additional
payment to Landlord (as appropriate).
Xxxxxxxx agrees that, in maintaining and operating the Property, Landlord
shall act in a prudent and businesslike manner, in a good faith effort to
maintain the condition and reputation of the Building without incurring expenses
in excess of those then being incurred by prudent owners of similar properties
in the Metropolitan Boston Area.
2.6 A CAPITAL EXPENSES: As used herein, a "capital expense" shall mean a
cost or expense incurred by Landlord in operating and maintaining the Building
which, under generally accepted accounting principles, is deemed to be a capital
expense. A capital expense shall not be included in
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Building Operation Costs or Office Operation Costs unless (i) such capital
expense is incurred in order to cause the Building to comply with applicable
governmental statutes, regulations and the like (subject, however, to the
provisions of Section 5.5, below), or (ii) in Landlord's reasonable judgment,
such expense will result in lower Building Operation Costs or Office Operation
Costs than the Building Operation Costs or Office Operation Costs which would
have been incurred, either currently or in the future if such expenses had not
been incurred. (For example, capital expenses incurred for the benefit of
specific tenants of the Building (but not the Building as a whole) shall not be
included in Building Operation Costs or Office Operation Costs, nor shall
capital expenses incurred in connection with the activities described in Section
8.18, below; but capital expenses incurred in replacing mechanical systems in
the Building shall be included in Building Operation Costs or Office Operation
Costs, if, in Landlord's reasonable judgment, they will result in long-term
savings, even if they will not result in immediate savings.) With respect to any
capital expense which is to be included in Building Operation Costs or Office
Operation Costs, the amount which is to be included in any calendar year during
the Term shall be computed by amortizing such capital expense (with interest
thereon computed at the rate of 1% above the "prime rate" in effect as of the
date on which such capital expense is incurred) over the reasonably anticipated
useful life of the repair or replacement item giving rise to such expense.
2.7 ELECTRICITY EXPENSES: Unless otherwise expressly provided in this
Lease, Tenant shall pay, directly to the supplier thereof, ail charges for
electricity supplied to the Premises.
If Tenant requires electricity in excess of the amount of electricity
ordinarily supplied to similar premises by landlords in the metropolitan Boston
Area, Landlord, at the sole cost and expense of Tenant, will furnish and install
such additional wires, conduits, feeders, switchboards and appurtenances as
Landlord may deem to be necessary in order to supply such additional
electricity; provided, however, that Landlord shall have no obligation to
furnish any such excess electricity unless the same shall be permitted by
applicable laws and insurance regulations, and shall not cause or threaten
permanent damage or injury to the Building or the Premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable alterations
or repairs, or permanently interfere with or disturb other tenants or occupants
of the Building.
2.8 ACCOUNTING PERIODS: Landlord shall have the right from time to time to
change the periods of accounting under Section 2.6 to any annual period other
than a calendar year, and upon any such change all items referred to in Section
2.6 shall be appropriately apportioned.
2.9 LATE PAYMENT/DISHONORED CHECKS: In the event (i) any payment of rent
(Annual or Additional) is not paid within five (5) business days of the due
date, or (ii) a check received by Landlord from Tenant shall be dishonored, then
because actual damages for a late payment or for a 9 dishonored check are
extremely difficult to fix or ascertain, but recognizing that damage and injury
result therefrom, Tenant agrees to pay $ 100.00 as liquidated damages for each
late payment and $50.00 as liquidated damages for each time a check is
dishonored. (The grace period herein provided is strictly related to the
liquidated damages for a late payment and shall in no way modify or stay
Tenant's obligation to pay rent when it is due, nor shall the same preclude
Landlord from pursuing its remedies under Article V11 hereof, or as otherwise
allowed by law.) In the event that two (2) or more
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of Tenant's checks are dishonored, Landlord shall have the right, in addition to
all other rights under this Lease, to demand all future payments by certified
check or money order. Furthermore if any payment of rent (Annual or Additional)
shall not be paid when due, the same shall bear interest from the date when the
same was due until the date paid at the lesser of (a) eighteen percent (18%) per
annum and (b) the highest lawful rate of interest which Landlord may charge to
Tenant without violating any applicable law. Such interest shall constitute
Additional Rent hereunder.
ARTICLE III
CONSTRUCTION
3.1 INITIAL CONDITION OF THE PREMISES: Except as expressly provided herein,
Landlord shall deliver (and Tenant shall accept) possession of the Premises in a
totally "as is" condition. Accordingly, Xxxxxx expressly acknowledges and agrees
that (i) Landlord has made no representation or warranty concerning the current
condition of the Premises or its fitness for use for any particular purpose and
(ii) except as expressly provided herein, Landlord shall have no obligation to
alter, renovate or improve the Premises in any respect.
3.2 LANDLORD'S WORK:
A. As used herein, "Tenant's Floor Plans" shall mean the plans for the
Premises specified on (or annexed hereto as) Exhibit B, annexed: -Tenant's
Plans" shall mean architectural plans and working drawings for the
preparation of the Premises, based upon Tenant's Floor Plans and
incorporating Landlord's building standard materials and improvements (as
set forth on Exhibit E, annexed), and -Landlord's Work" shall mean (i) the
work shown on Tenant's Plans and (ii) such work (if any) as may be
necessary to cause the plumbing, electrical and other mechanical systems
serving the Premises to be in good working, order (including, without
limitation, such work (if any) as may be necessary to cause the HVAC system
serving the Premises to operate in accordance with the standards set forth
on Exhibit G, annexed). Following the execution of this Lease, Landlord
shall prepare Tenant's Plans, and shall submit the same to Tenant for
Tenant's approval. Within three (3) business days after Xxxxxx's receipt of
Tenant's Plans, Tenant shall either approve Tenant's Plans or notify
Landlord of any respect(s) in which Tenant requires that Tenant's Plans be
modified. (Xxxxxx's failure to respond prior to the expiration of such
three (3) day period shall be deemed to constitute approval of Tenant's
Plans as submitted by Landlord.) Promptly following Tenant's approval of
Tenant's Plans (which approval shall not be unreasonably withheld or
delayed), Landlord shall undertake Landlord's Work. Except as otherwise
provided in this Lease, all of Landlord's Work shall be completed at
Landlord's sole cost and expense.
B. The Premises shall be deemed to be ready for occupancy when (i) the work
described in Xxxxxx's Plans has been completed except for items of work
which can be completed after occupancy has been taken without causing
substantial interference with Xxxxxx's use of the Premises (i.e. so-called
"punch-list items") and (ii) Landlord has obtained a certificate of
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occupancy (or other similar certificate), permitting the Premises to be
lawfully occupied for the Permitted Uses. Landlord shall complete as soon
as conditions practicably permit all punch-list items, and Tenant shall not
use the Premises in such manner as will increase the cost of completion.
Landlord shall communicate reasonably with Tenant as Landlord's Work
approaches substantial completion; and Tenant shall have the right to bring
its furniture and other personal property into the Premises prior to
substantial completion of Landlord's Work, so long as such action by Xxxxxx
does not materially interfere with the prosecution of Landlord's Work.
C. The work required of Landlord pursuant to this Article III shall be deemed
approved by Tenant on the Commencement Date except for items which are then
uncompleted or do not conform to Tenant's Plans and as to which, in either
case, Tenant shall have given notice to Landlord prior to such date.
X. Xxxxxxxx agrees to use due diligence to cause the Premises to be ready for
occupancy on or before the Anticipated Term Commencement Date. However, if
Landlord shall be unable to cause the Premises to be ready for occupancy on
or before the Anticipated Term Commencement Date, then Landlord shall not
be subject to any liability for such failure, nor shall such failure affect
the validity of this Lease. Furthermore, if, as a result of (i) any request
by Tenant that Tenant's Plans be changed or (ii) any other action by
Xxxxxx, Landlord's Work is delayed, then, at Landlord's option, the
Premises shall be deemed to have been ready for occupancy on that date on
which, in Landlord's reasonable judgment, the Premises would have been
ready for occupancy in the absence of such request or action.
X. Xx used herein, "Tenant's Construction Representative" and "Landlord's
Construction Representative" shall mean, respectively, the individuals
specified in Section 1.1, above. To the extent reasonably practicable, all
communications between Landlord and Tenant concerning Xxxxxxxx's Work shall
be conducted through Landlord's Construction Representative and Tenant's
Construction Representative. Without limitation, any change orders or other
directions made by Tenant with respect to Landlord's Work shall be binding
upon Tenant if (but only it) the same are made by Xxxxxx's Construction
Representative and agreed to by Landlord's Construction Representative 3.3
Alterations And Additions: This Section 3.3 shall apply both before and
during the Term:
3.3 ALTERATIONS AND ADDITIONS: This Section 3.3 shall apply both before and
during the Term: Tenant shall not make any structural alterations or additions
to the Premises. Tenant shall not make any other alterations or additions to the
Premises except in accordance with plans and specifications therefor first
approved by Landlord. Landlord agrees that such approval shall not be
unreasonably withheld or delayed, Landlord shall not be deemed unreasonable for
withholding approval of any alterations or additions which (a) involve or might
affect any structural or exterior element of the Building, any area or element
outside of the Premises, or any facility serving any area of the Building
outside the Premises, or (b) will delay completion of the Premises or
improvements in any other portion of the Building, or (c) will require unusual
expense to readapt the Premises to normal office use on Lease termination or
increase the cost of construction or of insurance or taxes on the Building
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or of the services called for by Section 4.1 (unless Tenant first gives
assurance acceptable to Landlord for payment of such increased cost and that
such readaptation will be made prior to such termination without expense to
Landlord). All alterations and additions shall be part of the Building unless
and until Landlord shall specify the same for removal pursuant to Section 5.2.
All of Tenant's alterations and additions and installation of furnishings shall
be coordinated with any work being performed by or for Landlord and in such
manner as to maintain harmonious labor relations and not to damage the Building
or Lot or interfere with Building construction or operation and, except for
installation of furnishings, shall be performed by Xxxxxxxx's general contractor
or by contractors or workmen first approved by Landlord. Except for work by
Xxxxxxxx's general contractor, Tenant, before its work `IS started, shall:
secure all licenses and permits necessary therefor; deliver to Landlord a
statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them and security
satisfactory to Landlord protecting Landlord against liens arising out of the
furnishing of such labor and material; and cause each contractor to carry
workmen's compensation insurance in statutory amounts covering all the
contractor's and subcontractor's employees and comprehensive public liability
insurance with such limits as Landlord may reasonably require, but in no event
less than $2,000,000 per occurrence, and property damage insurance with limits
of not less than $500,000 (all such insurance to be written in companies
approved by Landlord and insuring Landlord and Tenant as well as the
contractors), and to deliver to Landlord certificates of all such insurance,
Tenant agrees to pay promptly when due tile entire cost of any work- done oil
tile Premises by Tenant, its agents , employees, or independent contractors, and
not to cause or permit any liens for labor or materials performed or furnished
in connection therewith to attach to the Premises and immediately to discharge
any such liens which may attach. Tenant shall pay 100% of any increase in Real
Estate Taxes which shall result from any alteration, addition or improvement to
the Premises made by Tenant.
3.4 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION: All construction work
required or permitted by this Lease shall be done in a good and workmanlike
manner with new first class materials and in compliance with all applicable laws
and all lawful ordinances, regulations and orders of governmental authorities
and insurers of the Building. Each party may inspect tile work of the other at
reasonable times and shall promptly give notice of observed defects.
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 LANDLORD'S COVENANTS: Landlord covenants:
4.1.1 SERVICES FURNISHED BY LANDLORD: To furnish the services,
utilities, facilities, and supplies set forth in Exhibit C,
equal in quality to those customarily provided by landlords in
similar quality buildings in the greater Boston area:
4.1.2 ADDITIONAL SERVICES AVAILABLE TO TENANT: To the extent
feasible, to furnish, at Tenant's expense, reasonable
additional Building operation services which are
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usual and customary in similar office buildings in the greater
Boston area, upon reasonable advance request of Tenant, at
rates from time to time established by Landlord (For example,
upon not less than 24 hours advance notice from Tenant to the
building manager or other person designated by Landlord,
Landlord shall provide off-hours HVAC service to the Premises.
Xxxxxxxx's current charge for such off-hours HVAC service is
$20.00 per hour, but Landlord shall have the right to adjust
such charge from time to time.);
4.1.3 ROOF, EXTERIOR WALL, FLOOR STAB AND COMMON FACILITY REPAIRS:
Except as otherwise provided in Article VI, to make such
repairs to the roof, exterior walls, floor slabs, parking
facilities and other common areas and facilities as may be
necessary to keep them in serviceable condition; and
4.1.4 QUIET ENJOYMENT: That Tenant, on paying the rent and
performing its obligations in this Lease, shall peacefully and
quietly have, hold and enjoy the Premises without hindrance or
molestation by anyone claiming by, through or under Landlord,
subject to all the terms and provisions hereof.
4.2 INTERRUPTION AND DELAYS IN SERVICES AND REPAIRS, ETC.: Landlord shall
not be liable to Tenant for any compensation or reduction of rent by reason of
inconvenience or annoyance or for loss of business arising from the necessity of
Landlord or its agents entering the Premises for any of the purposes in this
Lease authorized, or for repairing the Premises or any portion of the Building,
however the necessity may occur. If Landlord is prevented or delayed from making
any repairs, alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on Landlord's part, then,
except as expressly provided in the next succeeding paragraph hereof, Landlord
shall not be liable to Tenant therefor, nor, except as expressly provided in the
next succeeding paragraph hereof, shall Tenant be entitled to any abatement or
reduction of rent by reason thereof, nor shall the same give rise to a claim in
Tenant's favor that such failure constitutes actual or constructive, total or
partial, eviction from the Premises.
If Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any services or performing any other covenant or
duty to be performed by Landlord, and if (i) such condition materially
interferes with Tenant's use and enjoyment of the Premises and (ii) such
material interference continues until the Abatement Date (as defined below),
then, beginning with the Abatement Date and continuing until such condition has
been remedied to the extent necessary to avoid material interference with
Tenant's use and enjoyment of the Premises. Tenant shall receive a reduction or
abatement of its obligations under Sections 2.5 and 2.6, above, consistent with
the extent of interference with Xxxxxx's use and enjoyment of the Premises.
Furthermore, if such material interference continues until the Termination Date
(as defined below), then Tenant shall have the right to terminate this Lease, by
notice to Landlord not later than the date on which
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such condition has been remedied to the extent necessary to prevent material
interference with Xxxxxx's use and enjoyment of the Premises. As used herein,
the "Abatement Date" shall mean: (x) with respect to a condition reasonably
within Landlord's control - the 11th business day following the date on which
the condition first materially interferes with Xxxxxx's use and enjoyment of the
Premises; and (y) with respect to a condition not reasonably within Landlord's
control - the 21st business day following the date on which such condition first
materially interferes with Tenant's use and enjoyment of the Premises. As used
herein, the "Termination Date" shall mean: (x) with respect to a condition
reasonably within Landlord's control - the 180th business day following the date
on which the condition first materially interferes with Xxxxxx's use and
enjoyment of the Premises; and (y) with respect to a condition not reasonably
within Landlord's control - the 270th business day following the date on which
such condition first materially interferes with Tenant's use and enjoyment of
the Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed: provided, however, that in each instance of stoppage, Landlord
shall exercise reasonable diligence to eliminate the cause thereof. Except in
case of emergency repairs, Landlord will give Tenant reasonable advance notice
of any contemplated stoppage and will use reasonable efforts to avoid
unnecessary inconvenience to Tenant by reason thereof. Landlord also reserves
the right to institute (and, thereafter, Tenant shall comply with) such
policies, programs and measures as may be necessary, required or expedient (in
the reasonable judgment of Landlord) for the conservation or preservation of
energy or energy services or as may be necessary or required to comply with
applicable codes, rules, regulations or standards.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the Term and such further time as Tenant occupies
any part of the Premises:
5.1 PAYMENTS: To pay when due all Annual Rent and Additional Rent and all
charges for additional services rendered pursuant to Section 4.1.2.
5.2 REPAIR AND YIELD UP: Except as otherwise provided in Article VI and
Section 4.1.3. to keep the Premises in good order, repair and condition,
reasonable wear and tear only excepted, and all glass in windows and doors of
the Premises whole and in good condition with glass of the same quality as that
injured or broken, damage by fire only excepted, and, at the expiration or
termination of this Lease, peaceably to yield up the Premises and all
alterations and additions thereto in good order, repair and condition,
reasonable wear and tear excepted, first removing all goods and effects of
Tenant and, to the extent specified by Landlord by notice to Tenant given at
least ten (10) days before such expiration or termination, all alterations and
additions made by Tenant and all partitions, and repairing any damage caused by
such removal and restoring the Premises and leaving them clean and neat.
(However, nothing set forth in this Lease shall be deemed to require Tenant to
remove Landlord's Work at the expiration or termination of this Lease.)
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5.3 USE: Continuously from the commencement of the Term, to use and occupy
the Premises for the Permitted Uses, and not to injure or deface the Premises,
Building or Lot, nor to permit in the Premises any auction sale, vending
machine, or inflammable fluids or chemicals, or nuisance, or the emission from
the Premises of any objectionable noise or odor, nor to use or devote the
Premises or any part thereof for any purpose other than the Permitted Uses, nor
any use thereof which is inconsistent with the maintenance of the Building as a
mixed use building of the first class in the quality of its maintenance, use and
occupancy, or which is improper, offensive, contrary to law or ordinance or
liable to invalidate or increase the premiums for any insurance on the Building
or its contents or liable to render necessary any alteration or addition to the
Building. (Without limitation, if Tenant engages in any activity which increases
the premiums for any insurance maintained, by Landlord or any occupant of the
Building, on the Building or its contents (or any portion of either), then
Tenant shall promptly reimburse Landlord for any such increase.)
5.4 OBSTRUCTIONS; ITEMS VISIBLE FROM EXTERIOR; RULES AND REGULATIONS: Not
to obstruct in any manner any portion of the Building not hereby leased or any
portion thereof or of the Lot used by Tenant in common with others; not without
prior consent of Landlord to permit the painting or placing of any signs on
doors or any signs, curtains, blinds, shades, awnings, aerials or flagpoles, or
the like, visible form outside the Premises; and to comply with all reasonable
rules and regulations now or hereafter made by Landlord, of which Xxxxxx has
been given notice, for the care and use of the Building and Lot and their
facilities and approaches. Landlord shall not be liable to Tenant for the
failure of other occupants of the Building to conform to such rules and
regulations.
5.5 SAFETY APPLIANCES; LICENSES; COMPLIANCE WITH LAW: To keep the Premises
equipped with all safety appliances required by law or ordinance or any other
regulation of any public authority and to procure all licenses and permits so
required because of Tenant's use of the Premises and, if requested by Xxxxxxxx,
to do any work in the Premises required to permit Tenant lawfully to engage ill
such use, it being understood that the foregoing provisions shall not be
construed to broaden in any way Tenant's Permitted Uses.
Notwithstanding anything to the contrary set forth in this Lease, Landlord
(and not Tenant) shall I be solely responsible for correcting any violation of
any building code, law or regulation applicable to the Property, to the extent
that such violation exists as of the Commencement Date. All costs incurred by
Landlord in remedying any such violation shall be borne by Landlord, and no part
thereof shall be included in Tenant's Excess Obligation. By its execution of
this Lease, Landlord represents and warrants that, except for the front entrance
to the Building, as of the date hereof, the Building complies with the Americans
with Disabilities Act in all material respects.
5.6 ASSIGNMENT, SUBLEASE: Tenant shall not assign this Lease or sublet (or
otherwise permit anyone else to occupy) the whole or any part of the Premises
without Landlord's prior written consent (the granting of which consent shall be
governed by the next succeeding paragraph hereof). (For the purposes of the
immediately preceding sentence, an assignment shall be deemed to include,
without limitation, the creation of any security in Tenant's leasehold interest
hereunder, as well as the sale or other transfer of a controlling interest in
the business entity constituting Tenant.) Without intending to
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limit Landlord's right to withhold such consent as governed by (the next
succeeding paragraph hereof) it is agreed that if Tenant requests Landlord's
consent to assign this Lease or sublet any or all of the floor area within the
Premises, Landlord shall have the option, exercisable by notice to Tenant given
within twenty (20) days after receipt of such request, to terminate this Lease
as of a date specified in such notice, which date shall be not less than thirty
(30) nor more than sixty (60) days after the date of such notice (provided,
however, that, if such sublease applies only to a portion of the Premises, then
Landlord shall have the option to terminate this Lease only if the rentable area
of the portion of the Premises which is the subject of such sublease, when
aggregated with the rentable area of all portions of the Premises previously
subleased by Tenant, will exceed 50% of the rentable floor area of the Premises.
Notwithstanding such consent, Tenant shall remain primarily liable to Landlord
for the payment of all rent and for the full performance of the covenants and
conditions of this Lease. ff. as a result of any assignment or sublease, Tenant
is entitled to receive from the assignee or sublessee rental and other charges
which (on a per square foot basis) exceed the rental and other charges payable
by Tenant hereunder, then, promptly upon receipt of such rental or other charges
from the assignee or sublessee, Tenant shall pay to Landlord 75% of any such
excess; provided, however, that Tenant shall have the right to use such excess
first to reimburse itself for all reasonable out-of-pocket expenses (e.g.
reasonable legal costs and brokerage commissions) incurred by Tenant in
connection with such assignment or sublease. In the event that Tenant shall
request Xxxxxxxx's consent to any proposed assignment or sublease, Tenant shall
promptly reimburse Landlord for all legal fees and other costs and expenses
incurred by Landlord in considering such request, whether or not Landlord
consents to the proposed assignment or sublease.
Landlord shall not unreasonably withhold or delay its consent to any
assignment or sublease as to which Xxxxxxxx's consent is requested by Xxxxxx. In
connection with any proposed assignment or sublease. Tenant shall supply to
Landlord such materials as Landlord may reasonably require in order to reach an
informed decision. Such information may include, without limitation, the
business terms of' tile proposed assignment or sublease and information
concerning the Financial condition, reputation and business experience of the
proposed assignee or subtenant. Without limitation, it shall not be unreasonable
for Landlord to withhold its consent to a proposed assignee or subtenant which
(i) is not of reasonably satisfactory financial condition or (ii) is an existing
tenant of the Building, or (iii) is already engaged in negotiations with
Landlord for the occupancy of premises in the Building.
5.7 INDEMNITY; INSURANCE: To the maximum extent this agreement may be made
effective according to law, Xxxxxx agrees to indemnify and save harmless
Landlord from and against all claims of whatever nature arising from any act,
omission or negligence of Tenant or Xxxxxx's contractors, licensees, agents,
servants or employees or arising from any accident, injury or damage whatsoever
caused to any person or to the property of any person, occurring after the
commencement of construction work by Xxxxxx, and until the end of the Term and
thereafter, so long as Tenant is in occupancy of any part of the Premises, in or
about the Premises, or arising from any death, accident, injury or damage
occurring outside of the Premises but within the Building, or on the Lot, where
such accident, damage or injury results or is claimed to have resulted from any
act or omission on the part of Tenant or Tenant's agents or employees or
independent contractors or invitees or suppliers. This indemnity shall, to the
maximum extent this agreement may be made effective according to law,
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also extend to all loss, costs, penalties, damage and claims of whatever nature
asserted against Landlord arising out of the use or occupancy of, or passage or
travel over or upon, the Property by Tenant or by any person claiming by,
through or under Tenant (including, without limitation, all employees, agents,
contractors and customers of Tenant), or arising out of any delivery to or
service supplied to the Premises, or on account of or based on anything
whatsoever done on the Premises, except if the same was caused by the
negligence, fault or misconduct of Landlord or its servants or employees. This
indemnity and hold harmless agreement shall include indemnity against all costs,
expenses and liabilities incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof with counsel approved by
Landlord.
Tenant shall maintain, with respect to the Premises and the Property,
comprehensive public liability insurance in amounts not less than the amounts
specified in Section 1.1. Said insurance shall be issued by responsible
insurance companies authorized to do business in the Commonwealth of
Massachusetts and having a "Best's" rating of A or higher, and shall insure as
named insured Landlord. Xxxxxxxx's Representative (as initially specified in
Section 1.1, but subject to change from time to time by notice from Landlord to
Tenant), and Tenant. Tenant shall deposit with Landlord certificates for such
insurance at or prior to the commencement of the Term, and thereafter at least
twenty (20) days prior to the expiration of any such policies. All such
insurance certificates shall provide that such policies (as well as any other
insurance required to be maintained by Tenant under this Lease) shall not be
canceled or modified without at least ten (10) days prior written notice to
Landlord. If said insurance shall be written on a so-called "aggregate
liability" basis, each time that a claim is paid thereunder, Tenant shall review
its coverage and, if necessary, increase the amount of its coverage so that the
remaining aggregate limits shall be not less than the limits required herein to
be carried by Tenant. Xxxxxx also agrees that, upon Xxxxxxxx's request from time
to time, Tenant shall increase the limits of the public liability insurance
described above to such limits as are customarily carried with respect to
premises similar to the Premises within the municipality in which the Building
is situated.
5.8 PERSONAL PROPERTY AT TENANT'S RISK; TENANT'S CASUALTY INSURANCE: That
all of the furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Tenant and of all persons claiming by, through or
under Tenant which, during the continuance of this Lease or any occupancy of the
Premises by Tenant or anyone claiming under Tenant, may be on the Premises or
elsewhere in the Building or on the Lot, shall be at the sole risk and hazard of
Tenant, and if the whole or any part thereof shall be destroyed or damaged by
fire, water or otherwise, or by the leakage or bursting of water pipes, steam
pipes, or other pipes, by theft or from any other cause, no part of said loss or
damage is to be charged to or borne by Landlord, except that Landlord shall in
no event be indemnified or held harmless or exonerated from any liability to
Tenant or to any other person, for any injury, loss, damage or liability to the
extent such indemnity, hold harmless or exoneration is prohibited by law.
Tenant shall maintain casualty insurance, in form and substance (and issued
by an insurer) reasonably satisfactory to Landlord, insuring Tenant's furniture,
trade fixtures and personal property, in an amount not less than the full
replacement value thereof Certificates of such insurance shall be
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delivered to Landlord in the manner required with respect to Tenant's liability
insurance coverage, as provided in the second paragraph of Section 5.7.
5.9 RIGHT OF ENTRY: To permit Landlord and its agents: to examine the
Premises at reasonable times and, if Landlord shall so elect, to make any
repairs or replacements as Landlord, in the exercise of its reasonable business
judgment, may deem necessary; to remove, at Tenant's expense, any alterations,
additions, signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the
like not consented to in writing; and to show the Premises to prospective
tenants during the Five (5) months preceding expiration of the Term and to
prospective purchasers and mortgagees at all reasonable times. Except in the
case of emergency, Landlord shall exercise its right of access under this
Section 5.9 only upon not less than 48 hours advance notice to Tenant. Such
notice may be given orally or in writing, to any person who Landlord reasonably
believes is authorized to receive such notice.
5.10 FLOOR LOAD; PREVENTION OF VIBRATION AND NOISE: Not to place a load
upon the Premises exceeding a rate of 50 pounds of live load per square foot;
and not to place or move any safe, vault or other heavy equipment in, about or
out of the Premises except in such manner and at such time as Landlord shall in
each instance authorize. Tenant's business machines and mechanical equipment
which cause vibration or noise that may be transmitted to the Building structure
or to any other space in tile Building shall be so installed, maintained and
used by Tenant as to eliminate such vibration or noise.
5.11 SECURITY: To comply with ail such reasonable measures as Landlord may
deem advisable for the security of the Building and its occupants, including,
without limitation, the evacuation of the Building for cause or suspected cause
or for drill purposes, the temporary denial of access to tile Building and tile
closing of the Building after regular working hours on regular working days and
on Sundays and legal holidays, subject, however to Tenant's right to admittance
when the Building is closed after regular working hours under such reasonable
regulations as Landlord may prescribe from time to time (which may include, by
way of example but not of limitation, that persons entering or leaving the
Building, whether or not during regular working hours, identify themselves to a
watchman by registration or otherwise and that said persons establish their
right to enter or leave the Building).
5.12 PERSONAL PROPERTY TAXES: To pay promptly when due all taxes which may
be imposed upon personal property (including without limitation, fixtures and
equipment) in the Premises to whomever assessed.
5.13 TENANT HOLDOVER: To provide Landlord with advance notice whenever
Tenant reasonably anticipates that it will retain possession of the Premises or
any part thereof after the expiration or termination of this Lease: and to pay
to Landlord two (2) times the greater of (i) the then fair market rent as
conclusively determined by Landlord and (ii) the total of the Annual Rent and
other changes under Article 11 then applicable, for each month or portion
thereof Tenant shall retain possession of the Premises or any part thereof after
the expiration or termination of this Lease, whether by lapse of time or
otherwise, and also to pay all damages sustained by Landlord on account thereof
(provided, however, that, during the first fifteen (15) days of any such holding
over, such damages shall not
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include losses resulting, from the loss of any prospective tenant of the
Premises, but may include other losses (including, without limitation,
reasonable costs incurred by Landlord in providing, and moving Tenant to,
temporary alternative space in order to avoid the loss of a prospective tenant
of the Premises). The provisions of this Section shall not operate as a waiver
by Landlord of the right of reentry provided in this Lease. At the option of
Landlord exercised by a notice given to Tenant while such holding over
continues, such holding over shall constitute an extension of the Term of this
Lease for a period of one year.
5.14 HAZARDOUS MATERIALS: Tenant shall not use any portion of the Premises
for the use, generation, treatment, storage or disposal of "oil", "hazardous
material", Hazardous wastes", or "hazardous substances" (collectively, the
"Materials"), as such terms are defined under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. ss.9601 et seq., as amended,
the Resource Conversation and Recovery Act of 1976, 42 U.S.C. ss.6901 et seq.,
as amended, and the regulations promulgated thereunder, and all applicable state
and local laws, rules and regulations (now or hereafter in effect), including,
without limitation, Massachusetts General Laws, Chapters 21C and 21E (the
"Superfund and Hazardous Waste Laws"), without the express written prior consent
of Landlord and, if required, its mortgagees, and then only to the extent that
the presence of the Materials is (i) property licensed and approved by all
appropriate governmental officials and in accordance with all applicable laws
and regulations and (ii) in compliance with any terms and conditions stated in
said prior written approvals by the Landlord or its mortgagees. Tenant shall
promptly provide Landlord with copies of all notices received by it, including,
without limitation, any notice of violations notice of responsibility or demand
for action from any federal, state or local authority or official in connection
with the presence of Materials in or about the Premises, Building or Lot. In the
event of any presence or release of Materials upon the Premises, Building or
Lot, or upon adjacent lands, caused by Tenant or its agents or representatives
or those claiming under Tenant, as defined in the Superfund and Hazardous Waste
Laws, Tenant shall promptly remedy the problem in accordance with all applicable
laws and requirements and shall indemnify, defend and hold Landlord harmless
from and against all loss, costs, liability and damage, including attorneys'
fees and the cost of litigation arising from the presence or release of such
Materials. Nothing herein shall be deemed to prohibit the lawful use of
customary cleaning materials and office supplies, provided the same are stored
and used in a lawful manner.
ARTICLE VI
CASUALTY AND TAKING
6.1 FIRE OR CASUALTY:
1. If, after the commencement of the Term and prior to the expiration
or earlier termination hereof, the Premises shall be partially damaged (as
distinguished from "substantially damaged", as that term is hereinafter defined)
by fire or casualty, Landlord shall promptly proceed to restore so much of the
Premises as was originally constructed by Landlord to substantially the
condition which that portion of the Premises originally constructed by Landlord
was in at the time of
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such damage, but Landlord shall not be responsible for delay which may result
from any cause beyond the reasonable control of Landlord.
2. If, after the commencement of the Term and prior to the expiration
or earlier termination hereof, the Premises shall be substantially damaged (as
that term is hereinafter defined) by Fire or casualty, the risk of which is
covered by Landlord's insurance, Landlord, promptly after such damage and the
determination of the net amount of insurance proceeds available to Landlord
(that is, the amount of insurance proceeds paid by Xxxxxxxx's insurer on account
of such fire or casualty, after deducting therefrom (i) costs incurred by
Landlord in obtaining such payment and (ii) the amount of such proceeds retained
by any mortgagee in satisfaction of any outstanding mortgage debt), shall expend
so much as may be necessary of such net amount to restore, to the extent
originally constructed by Landlord (consistent, however, with zoning laws and
building codes then in existence), so much of the Premises as was originally
constructed by Landlord to substantially the condition which such portion of the
Premises was in at the time of such damage, except as hereinafter provided, but
Landlord shall not be responsible for delay which may result from any cause
beyond the reasonable control of Landlord. Should the net amount of insurance
proceeds available to Landlord be insufficient to cover the cost of restoring
the Premises, in the reasonable estimate of Landlord, Landlord may, but shall
have no obligation to, supply the amount of insufficiency and restore the
Premises with all reasonable diligence, or Landlord may terminate this Lease by
giving notice to Tenant within a reasonable time after Landlord has determined
the estimated net amount of insurance proceeds available to Landlord and the
estimated cost of such restoration.
3. Promptly following the substantial completion of Landlord's
restoration work, as provided above. Tenant shall restore its trade fixtures,
inventory and other items of personal property, so as to assure that business
operations from tile entire Premises shall be reinstated at the earliest
possible date.
4. The term "substantial damage" and "substantially damaged" as used
herein shall refer to damage of such a character that the same cannot, in
ordinary course, reasonably be expected to be repaired within sixty (60) days
from the time that such work would commence.
5. If, however, the Building shall be substantially damaged or
destroyed by fire or casualty, or if, as the result of a risk not covered by the
forms of hazard insurance then customarily carried on like improvements in the
locality in which the Premises are located (the parties agreeing that, as of the
date of execution hereof, such form of insurance coverage is commonly known as
Fire with Extended Coverage Endorsement No. 4 and Vandalism and Malicious
Mischief coverage), tile Premises are substantially damaged, Landlord shall
promptly restore, to the extent originally constructed by Landlord (consistent,
however, with zoning laws and building codes then in existence), so much of the
Building or the Premises as were originally constructed by Landlord to
substantially the condition thereof at the time of such damage, unless Landlord,
promptly after such loss, gives notice to Tenant of Landlord's election to
terminate this Lease. If Landlord shall give such notice, then this Lease shall
terminate as of the date of such notice with the same force and effect as if
such date were the date originally established as the expiration date hereof.
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6. If the Premises shall be substantially damaged by fire or casualty
within the last twelve (12) months of the Term, either party shall have the
right, by giving notice to the other not later than sixty (60) days after such
damage, to terminate this Lease, whereupon this Lease shall terminate as of the
date of such notice with the same force and effect as if such date were the date
originally established as the expiration date hereof.
7. If the Premises shall be damaged by fire or casualty, the Annual
Rent payable by Tenant under this Lease shall xxxxx or be reduced
proportionately for the period in which, by reason of such damage, there is
substantial interference with the operation of Tenant's business in the
Premises, having regard to the extent to which Tenant may be required to
discontinue Tenant's business in the Premises, but such abatement or reduction
shall end upon completion by Landlord of the work which Landlord is required to
do under this Section 6.1 in restoration of the Premises.
6.2 EMINENT DOMAIN:
1. If the Premises, or such portion thereof as (in Landlord's
reasonable judgment) to render the continued operation of the balance uneconomic
(if reconstructed to the maximum extent practicable in the circumstances), shall
be taken by condemnation or right of eminent domain, Landlord shall have the
right to terminate this Lease by notice to Tenant of its desire to do so,
provided that such notice is given not later than thirty (30) days after Tenant
has been deprived of possession. Further, if so much of the Building or the Lot
shall be so taken that continued operation of the Building would be uneconomic.
Landlord shall have the right to terminate this Lease by giving notice to Tenant
of Landlord's desire so to do not later than thirty (30) days after the
effective date of such taking.
Should any part of the Premises be so taken or condemned and such taking or
condemnation occurs after the commencement of the Term, and should this Lease be
not terminated in accordance with the foregoing provisions. Landlord agrees,
promptly after such taking or condemnation and tile determination of Landlord's
award on account thereof, to expend so much as may be necessary of tile net
amount which may be awarded to Landlord in such condemnation proceedings (that
is, the amount of proceeds of any award received by Landlord in such
condemnation proceedings and allocable to damage which is to be restored, after
deducting therefrom (i) costs incurred, by Xxxxxxxx in obtaining such award and
(ii) the amount of such proceeds retained by any mortgagee in satisfaction of
any outstanding mortgage debt) in restoring the Premises, to the extent
originally constructed by Xxxxxxxx, to an architectural unit as nearly like
their condition prior to such taking as shall be practicable. Should the net
amount so awarded to Landlord be insufficient to cover the cost of restoring the
Premises, in the reasonable estimate of Landlord. Landlord may, but shall have
no obligation to, supply the amount of such insufficiency and restore the
Premises to such an architectural unit, with all reasonable diligence, or
Landlord may terminate this Lease by giving notice to Tenant within a reasonable
time after Landlord has determined the estimated net amount which may be awarded
to Landlord and the estimated cost of such restoration.
2. Promptly following the substantial completion of Landlord's
restoration work, as provided above, Tenant shall restore its trade fixtures,
inventory and other items of personal property,
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so as to assure that business operations from the entire Premises shall be
reinstituted at the earliest possible date.
3. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to the
Lot, the Premises, the Building and the leasehold interest hereby created, and
to compensation accrued or hereafter to accrue by reason of such taking, damage
or destruction, as aforesaid; and, by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and assign to
Landlord, all rights to such damages or compensation. Nothing contained herein
shall be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any of Tenant's usual trade fixtures
installed in the Premises by Tenant at Tenant's expense and for relocation
expenses, provided that such action shall not affect the amount of compensation
otherwise recoverable by Landlord from the taking authority.
4. In the event of any such taking of the Premises, the Annual Rent, or
a fair and just proportion thereof, according to the nature and extent of the
damage sustained, shall be suspended or abated, as Landlord, in its reasonable
Judgment, may deem to be appropriate and equitable in the j circumstance.
Furthermore, following any taking, Tenant's obligations under Section 2.6 shall
be adjusted appropriately, in order to take account of any reduction in the
gross square footage of floor area in the Premises and/or the remainder of the
Building.
ARTICLE VII
DEFAULT
7.1 EVENTS OF DEFAULT: If any default by Xxxxxx continues after notice. In
case of Annual Rent or Additional Rent for more than seven (7) days, or in any
other case for more than thirty (30) days and such additional time, if any, as
is reasonably necessary to cure tile default if tile default is of' such a
nature that `it cannot reasonably be cured in thirty (30) days (provided,
however, that such additional time shall be available to Tenant only if Tenant
commences the remedy of tile relevant default within thirty (30) days after
notice from Landlord, and thereafter prosecutes such remedy diligently to
completion); or if Tenant or any guarantor of any of Tenant's obligations under
this Lease makes any assignment for the benefit of creditors, or files a
petition under any provision or chapter of any bankruptcy or insolvency law, or
if such petition filed against Tenant or such guarantor is not dismissed within
sixty (60) days, or if a receiver or similar officer becomes entitled to
Tenant's leasehold is hereunder and such leasehold is not returned to Tenant
within sixty (60) days, or If such leasehold is taken on execution or other
process of law in any action against Tenant --- then, in any such case, whether
or not the Term shall have begun, Landlord may immediately, or at any time while
such default exists, terminate this Lease by notice to Tenant, and this Lease
shall come to an end on the date specified therein as fully and completely as if
such date were the date herein originally fixed for the expiration of the Term,
and Xxxxxx will then quit and surrender the Premises to Landlord, but Tenant
shall remain liable as hereinafter provided.
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7.2 DAMAGES: In the event that this Lease is terminated under any of the
provisions contained in Section 7.1 or is otherwise terminated for breach of any
obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the excess of the total rent reserved for the residue of the Term
over the rental value of the Premises for said residue of the Term. In
calculating the rent reserved, there shall be included the Annual Rent and all
Additional Rent, and the value of all other consideration agreed to be paid or
performed by Xxxxxx for said residue, Tenant further covenants as an additional
and cumulative obligation after any such ending to pay punctually to Landlord
all the sums and perform all the obligations which Tenant covenants in this
Lease to pay and to perform in the same manner and to the same extent and at the
same time as if this Lease had not been terminated in calculating the amounts to
be paid by Tenant under the next foregoing covenant, Tenant shall be credited
with any amount paid to Landlord as compensation as in this Section 7.2
provided, and also with the net proceeds of any rent obtained by Landlord by
reletting the Premises, after deducting ail Landlord's expenses in connection
with such reletting, including, without limitation, all repossession costs,
brokerage commissions, fees for legal services and expenses of preparing the
Premises for such reletting, it being agreed by Tenant that Landlord may (i)
relet the Premises or any part or parts thereof, for a term or terms which may,
at Landlord's option, be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term and may grant such
concessions and free rent as Landlord, in its sole judgement, considers
advisable or necessary to relet the same, and (ii) make such alterations,
repairs and decorations in the Premises as Landlord, in its sole judgement,
considers advisable or necessary to relet the same, and no action of Landlord in
accordance with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's liability
as aforesaid.
In lieu of any other damages or indemnity and in lieu of full recovery by
Landlord of all sums payable under all the foregoing provisions of this Section
7.2, Landlord may, by written notice to Tenant, at any time after this Lease is
terminated under any of the provisions contained in Section 7.1 or is otherwise
terminated for breach of any obligation of Tenant and before such full recovery,
elect to recover, and Tenant shall thereupon pay, as liquidated damages, an
amount equal to the aggregate of 9 the Annual Rent and Additional Rent accrued
under Sections 2.5, 2.6 and 2.7 in the 12 months ended next prior to such
termination, plus the amount of Annual Rent and Additional Rent of any kind
accrued and unpaid at the time of termination, plus expenses due under Section
8.14, and less the amount of any recovery by Landlord under the foregoing
provisions of this Section 7.2 up to the time of payment of such liquidated
damages.
Notwithstanding anything in this Lease to the contrary, Landlord should
take all reasonable steps to mitigate its damages in the event of a default
hereunder by Xxxxxx. Nothing contained in tills Lease shall limit or prejudice
the right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
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ARTICLE VIII
MISCELLANEOUS
8.1 SECURITY DEPOSIT: Landlord acknowledges that it has received from
Tenant the security deposit set forth in Section 1.1, said sum to serve as
security for the payment of rents and the performance and observance of the
agreements and conditions in this Lease contained on the part of Tenant to be
performed and observed. In the event of any default or defaults in such payment,
performance or observance, Landlord may apply said sum or any part thereof
toward curing of any such default or defaults and to compensating Landlord for
any loss or damage arising from any such default or defaults. Upon the yielding
up of the Premises at the expiration or other termination of the Term. said sum
(or so much thereof as may remain after application in satisfaction of any
existing defaults or liabilities of Tenant hereunder) shall be returned to
Tenant. It is understood and agreed that Landlord shall always have the right to
apply said sum, or any part thereof, as aforesaid in the event of' any such
default or defaults, without prejudice to any other remedy or remedies which
Landlord may have. or Landlord may pursue any other such remedy or remedies in
lieu of (and in addition to) applying said sum or art thereof. No interest shall
be payable on said sum or any part thereof. If Landlord shall apply said sum or
any part thereof as aforesaid, Tenant shall upon demand pay to Landlord the
amount so applied by Landlord, to restore the security to Its original amount.
Whenever the holder of Xxxxxxxx's interest in this Lease, whether it be the
Landlord named in this Lease or any transferee of said Landlord, immediate or
remote, shall transfer its interest In this Lease, such holder shall be released
from any and all liability to Tenant with respect to said sum or its application
or return, it being understood that Tenant shall thereafter look only to such
transferee with respect to said sum its application and return. However, the
holder of any mortgage upon property which includes the Premises shall never be
responsible to Tenant for said sum or its application or return unless said sum
shall actually have been received in hand by such holder. (See also Section
8.20, below.)
8.2 NOTICE OF LEASE; CONSENT OR APPROVAL; NOTICES, BIND AND INURE;
LANDLORD'S ESTATE: The titles of the Articles and Sections herein are for
convenience only and are not to be considered in construing this Lease, Xxxxxx
agrees not to record this Lease, but upon request of either party, both parties
shall execute and deliver a notice of this Lease, in form appropriate for
recording or registration, and if this Lease is terminated before the Term
expires, an Instrument in such form acknowledging the date of termination.
Except as expressly provided in Section 5.9, above, whenever any notice,
approval, consent, request or election is given or made pursuant to this Lease,
it shall be in writing. Communications and payments shall be addressed if to
Landlord at Landlord's Address or at such other address as may have been
specified by prior notice to Tenant, and if to Tenant at Tenant's Address or at
such other address as may have been specified by prior notice to Landlord. Any
communication so addressed shall be deemed duly served if mailed by registered
or certified mail, return receipt requested or by reputable overnight delivery
service, and shall be deemed to be effective when tendered to the intended
recipient for delivery, If Landlord by notice to Tenant at any time designates
some other person to receive payments or notices, all payments or notices
thereafter by Tenant shall be paid or given to the agent designated until notice
to the contrary is received by Tenant from Landlord. The
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obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the original Landlord named herein and each
successive owner of the Premises shall be liable only for obligations accruing
during the period of its ownership. If Landlord shall at any time be an
individual, joint venture, tenancy in common, firm or partnership (general or
limited), a trust or trustees of a trust, it is specifically understood and
agreed that there shall be no personal liability of the Landlord or any joint
venturer, tenant, partner, trustee, shareholder, beneficiary or holder of a
beneficial interest under any of the provisions hereof or arising out of the use
or occupation of the Premises by Tenant. In the event of a breach or default by
Landlord of any of its obligations under this Lease, Tenant shall look solely to
the then equity of the Landlord in the Property for the satisfaction of Tenant's
remedies, and it is expressly understood and agreed that Landlord's liability
under the terms, covenants, conditions, warranties and obligations of this Lease
shall in no event exceed the loss of such equity interest. In no event shall
Landlord be liable to Tenant for any indirect or consequential damages sustained
by Tenant, from whatever cause.
8.3 LANDLORD'S FAILURE TO ENFORCE: The failure of Landlord to seek redress
for violation of or to insist upon strict performance of, any covenant or
condition of this Lease or any of the rules and regulations referred to in
Section 5.4, whether heretofore or hereafter adopted by Landlord, shall not be
deemed a waiver of such violation nor prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation, nor shall the failure of Landlord to enforce any of said
rules and regulations against any other tenant of the Building be deemed a
waiver of any such rules and regulations The receipt by Landlord of Annual Rent
or Additional Rent with knowledge of the breach of any covenant of this Lease
shall not be deemed a waiver of such breach. No provision of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing signed
by Landlord. No consent or waiver, express or implied by Landlord to or of any
breach of any agreement or duty shall be construed as a waiver or consent to or
of any other breach of the same or any other agreement or duty.
8.4 ACCEPTANCE OF PARTIAL PAYMENTS OF RENT; DELIVERY OF KEYS: No acceptance
by Landlord of a lesser sum than the Annual Rent and Additional Rent then due
shall be deemed to be other than on account of the earliest installment of such
rent due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or pursue any other remedy in
this Lease provided. The delivery of keys to any employee of Landlord or to
Landlord's agent or any employee thereof shall not operate as a termination of
this Lease or a surrender of the Premises.
8.5 CUMULATIVE REMEDIES: The specific remedies to which Landlord may resort
under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of this Lease. In addition to the other remedies provided in this Lease,
Landlord shall be entitled to the restraint by injunction of the violation or
attempted or threatened violation of any of
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the covenants, conditions or provisions of this Lease or to a decree compelling
specific performance of any such covenants, conditions or provisions.
8.6 PARTIAL INVALIDITY: If any term of this Lease, or the application
thereof to any person or circumstances, shall to any extent be invalid or
unenforceable, the remainder of this Lease. or the application of such term to
persons or circumstances other than those to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
8.7 SELF-HELP: If Tenant shall at any time default in the performance of
any obligation under this Lease, Landlord shall have the right, but shall not be
obligated, to enter upon the Premises and (whether or not such entry is
necessary) to perform such obligation notwithstanding the fact that no for such
substituted performance by Landlord is made in this Lease with respect to
specific provisions such default. In performing such obligation, Landlord may
make any payment of money or perform any other act. All sums so paid by Xxxxxxxx
(together with interest at the rate specified in Section 2.9 and all necessary
incidental costs and expenses in connection with the performance of any such act
by Landlord) shall be payable to Landlord immediately on demand. Landlord may
exercise the foregoing rights without waiving any other of its rights or
releasing Tenant form any of its obligations under this Lease.
8.8 TENANT'S ESTOPPEL CERTIFICATE: Tenant agrees from time to time, upon
not less than twenty (20) days prior written request by Xxxxxxxx (but subject to
the provisions of the next succeeding paragraph hereof), to execute, acknowledge
and deliver to Landlord a statement, in writing certificate, that tills Xxxxx is
unmodified and in full force and effect and that Tenant has no defenses, offsets
or counterclaims against its obligations to pay the Annual Rent and Additional
Rent and to perform Its other covenants under this Lease and that there are no
uncured defaults of Landlord or Tenant under this Lease (or, if there have been
any modifications, that the same are In full force and effect as modified and
stating the modifications and, if there are any defenses, offsets, counterclaims
or defaults settling them forth in reasonable detail), and the dates to which
the Annual Rent and Additional Rent have been paid, and any other information
reasonably requested. Any such statement delivered pursuant to this Section 8.8
may be relied upon by any prospective purchaser or mortgagee of the Promises or
any prospective assignee of any mortgagee of the Premises.
With respect to requests for Estoppel Certificates, as provided above,
Xxxxxxxx agrees that (i) Landlord shall make such requests only in connection
with the proposed sale or refinancing of the Property, or for other reasonable
business purposes, and (ii) with respect to the third and each succeeding
request during any period of 12 consecutive calendar months. Landlord shall
reimburse Tenant for all reasonable out-of-pocket costs and expenses incurred by
Tenant in responding to such request.
8.9 WAIVER OF SUBROGATION: Any casualty insurance carried by either party
with respect to the Premises or property therein or occurrences thereon shall,
if it can be so written without additional premium or with any additional
premium which the other party agrees to pay, include a clause or
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endorsement denying to the insurer rights of subrogation against the other party
to the extent rights have been waived by the insured prior to occurrence of
injury or loss. Each party, notwithstanding any provisions of this Lease to the
contrary, hereby waives any rights of recovery against the other for injury or
loss due to hazards covered by such insurance to the extent of the
indemnification received thereunder.
8.10 ALL AGREEMENTS CONTAINED: This Lease contains all of the agreements of
the parties with respect to the subject matter thereof and supersedes all prior
dealings between them with respect to such subject matter.
8.11 BROKERAGE: Each party hereto warrants to the other party hereto that
the warranting party has had no dealings with any broker or agent in connection
with this Lease other than the Broker(s) (if any) listed in Section 1.1 and the
warranting party covenants to defend with counsel approved by the other party,
hold harmless and indemnify the other party from and against any and all cost,
expense or liability for any compensation, commissions and charges claimed by
any other broker or agent with respect to the warranting party's dealings in
connection with this Lease or the negotiation thereof.
8.12 SUBMISSION NOT AN OPTION: The submission of this Lease or a summary of
some or all of its provisions for examination does not constitute a reservation
of or option of the Premises or an offer to lease.
8.13 RELOCATION: Landlord shall have the right, from time to time (but, in
any event, on not more than one occasion during any period of 36 consecutive
calendar months), to relocate Tenant to premises in the Building of
substantially similar size and utility to the Premises. Such right shall be
exercised by notice to Tenant, specifying a date for such relocation not sooner
than thirty (30) days from tile date or such notice (provided, however, that
such relocation date may be extended by Landlord from time to time in order to
accommodate Xxxxxxxx's construction schedule or Landlord's other reasonable
business purposes). If Landlord shall exercise such right, Landlord shall (i)
improve tile Substitute premises with a Finish substantially identical to the
finish existing in the Premises as of tile date of relocation, (ii) effect such
relocation in a manner (and at a time of day) so as not to interfere
unreasonably with Xxxxxx's ongoing business activities and (iii) reimburse
Tenant for all reasonable costs and expenses incurred by Tenant in connection
with such relocation (including, without limitation, reasonable costs and
expenses incurred by Tenant in installing wiring for data and telecommunications
in the substitute premises).
8.14 COSTS OF ENFORCEMENT: If either party hereto engages in judicial or
quasi-judicial proceedings or otherwise retains counsel, as a result of any
default by the other party hereto or other dispute hereunder, the non-prevailing
party shall reimburse the prevailing party for all reasonable costs, counsel,
and other fees incurred by the prevailing party in connection therewith. The
parties shall request that the trier of fact, in its decision, determine which
is the prevailing party.
8.15 ADDITIONAL PROVISIONS: The additional provisions set forth on Exhibit
D, annexed, are incorporated in this Lease by reference as if fully set forth
herein.
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ARTICLE IX
RIGHTS OF PARTIES HOLDING PRIOR INTERESTS
9.1 LEASE SUBORDINATE: This Lease shall be subject and subordinate to any
mortgage now or hereafter on the Lot or Building or both (which are separately
and together hereinafter in this Article IX referred to as the "mortgaged
premises"), and to each advance made or hereafter to be made under any mortgage,
and to all renewals, modifications, consolidations, replacements and extensions
thereof' and all substitutions therefor. Such subordination shall be conditioned
upon Xxxxxx's receipt of a "nondisturbance agreement" from the holder of the
mortgage to which this Lease is to be subordinated, to the effect that,
notwithstanding any foreclosure of such mortgage (or any similar action)
pursuant to which the holder of such mortgage (or its successor in title)
succeeds to the interest of Landlord hereunder, Tenant shall be permitted to
continue to exercise its rights hereunder, and such holder (or its successor)
shall not terminate this Lease except under the conditions which would have
permitted Landlord to terminate this Lease if Landlord had continued to hold the
landlord's interest hereunder. In confirmation of such subordination (but
subject to delivery of a "non-disturbance agreement' as provided above), Tenant
shall execute and deliver promptly any reasonable certificate that Landlord or
any mortgagee may request. In the event that any mortgagee or its respective
successor in title shall succeed to the interest of Landlord, then, at the
option of such mortgagee or successor, this Lease shall nevertheless continue in
full force and effect and Tenant shall and does hereby agree to attorn to such
mortgagee or successor and to recognize such mortgagee or successor as its
Landlord.
9.2 MODIFICATION, TERMINATION OR CANCELLATION; ADVANCE PAYMENTS OF RENT: No
assignment of this Lease and no agreement to make or accept any surrender,
termination or cancellation of this Lease and no agreement to modify this Lease
so as to reduce the rent, change the Term or otherwise materially change the
rights of Landlord hereunder, or to relieve Tenant of any obligations or
liability hereunder, shall be valid unless consented to by Landlord's mortgagees
of record, if any No Annual Rent or regularly scheduled periodic Additional Rent
shall be paid more than ten (10) days prior to the due date thereof. Payments
made in violation of this provision shall (except to the extent that such
payments are actually received by a mortgagee) be a nullity as against any
mortgagee and Tenant shall be liable for tile amount of such payments to such
mortgagee.
9.3 RIGHTS OF HOLDER OF MORTGAGE TO NOTICE OF DEFAULTS BY LANDLORD AND TO
CURE SAME: No act or failure to act on the part of Landlord which would entitle
Tenant, under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease unless (i) Tenant
shall have first given written notice of Landlord's act or failure to act to
Landlord's mortgagees of record it any, specifying the act or failure to act on
the part of Landlord which could or would give basis to Xxxxxx's rights, and
(ii) such mortgagees, after receipt of such notice, have failed or refused to
correct or cure tile condition complained of within a reasonable time
thereafter: but nothing contained in this Section 9.3 shall be deemed to impose
any obligation on any such mortgagee(s) to correct or cure and condition.
"Reasonable time", as used herein, means and includes a reasonable time to
obtain
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possession of the mortgaged premises if the mortgagee elects to do so and a
reasonable time to correct or cure the condition if such condition is determined
to exist.
9.4 IMPLEMENTATION OF ARTICLE IX: Xxxxxx agrees on request of Xxxxxxxx to
execute and deliver from time to time any agreement which may reasonably be
deemed necessary to implement the provisions of this Article IX.
EXECUTED as a sealed instrument in any number of counterparts (each of
which shall be deemed to be an original instrument for all purposes), on the day
and year first above written.
LANDLORD: 000 Xxxxxxxxxx Xxxxxx, LLC
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Its Manager
TENANT: MCK Telecommunications, Inc.
By: /s/ Xxxx X. Xxxxx
------------------------------
Its
hereunto duly authorized
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EXHIBIT A
[Plan showing an outline and location of the premises.]
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[Plan showing an outline and location of the premises.]
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XXXX X. XXXXXXX + Associates, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxx XX 00000
000 000 0000
June 20, 1997
Xx. Xxxxx Xxxxxxxx
The Xxxxxxxx Companies, Inc.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
RE: 000 Xxxxxxxxxx Xx., Xxxxxx, XX
Dear Xxxxx:
As Project Architect for the renovations to 000 Xxxxxxxxxx Xxxxxx, Xxxx X.
Xxxxxxx + Associates, Inc. has measured the overall building as well as
individual tenant spaces as requested by The Xxxxxxxx Companies, Inc. The
methods of measurement used are based on the ANSI/BOMA 265.1-1996, Standard
Method for Measuring Floor Area in Office Buildings. The Second Floor space to
be leased to MCK Communications, Inc. has been determined to have a useable
number of 5,905 sf and a rentable number of 6,968 sf. The rentable number is
based on an R/U Factor of 1.18 in accordance with BOMA Standards.
Sincerely,
/s/ Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxxx
ARCHITECTURE
Xxxxxxx X. Xxxxx XX
Vice President
Xxxxx X. Xxxxxxx XX
Associate
Xxxx X. Xxxxxx RA
Associate
Xxxxxxx X. Xxxx
Computer Applications
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EXHIBIT "C"
000 XXXXXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX
LANDLORD SERVICES
I. CLEANING
A. Daily Operations (5 times per week)
1. Office Areas
a. Empty and clean all waste receptacles; wash receptacles.
b. Vacuum all rugs and carpeted areas.
c. Empty, damp-wipe and dry all ashtrays.
2. Lavatories
a. Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with disinfectant.
c. Wash all mirrors, basins, bowls, urinals.
d. Spot clean toilet partitions.
e. Empty and disinfect sanitary napkin dispensers.
f. Refill toilet tissue, towel, soap and sanitary napkin
dispensers.
3. Common Areas
a. Wipe down entrance doors and clean glass (interior and
exterior).
b. Vacuum elevators carpets and wipe down doors and walls.
B. Weekly Operations
1. Office Area, Lavatories, Public Areas
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a. Hand-dust and wipe clean, with treated cloths, all horizontal
surfaces which (i) are within normal reach and (ii) have been
cleared by Tenant, including furniture, office equipment,
window xxxxx, door ledges, chair rails, baseboards, convector
tops, etc.
b. Remove finger marks from private entrance doors, light
switches and doorways.
c. Sweep all stairways.
C. Monthly Operations
1. Office and Common Areas
a. Thoroughly vacuum seat cushions on chairs, sofas, etc.
b. Vacuum and dust grillwork.
2. Lavatories
a. Wash down interior walls and toilet partitions.
D. Window Cleaning all exterior windows will be periodically washed on
the inside and outside surfaces.
II. HEATING VENTILATING AND AIR CONDITIONING
A. Heating, ventilating and air conditioning as required to provide
comfortable temperatures for normal business days (except holidays);
Monday through Friday from 8:00 a.m. to 6:00 p.m. and Saturday from
9:00 a.m. to 1:00 a.m.
B. Maintenance on any additional or special conditioning equipment and
the associated operating cost will be at Tenant's expense.
C. In the event of federal, state or local government controls, rules,
regulations or restrictions on the use or consumption of energy or
other utilities during the term of tills lease, including renewals or
extensions thereof, both Tenant and Landlord shall be bound and shall
comply with the same, regardless of any other provisions of this
lease-, in the event regulations or restrictions by Landlord shall
prevail and Landlord shall, without exposure to legal process by
Tenant, have the right to enforce compliance including tile right of
entry into Tenant's space to effect compliance.
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III. WATER
A. Hot water for lavatory purposes and cold water for drinking, lavatory
and toilet purposes.
IV. ELEVATORS
A. Elevators are for the use of all Tenants and the general public for
access to and from all floors of the Building. Programming of
elevators (including but not limited to service elevators) shall be as
Landlord from time to time determines best for the building as a
whole.
V. RELAMPING OF LIGHT FIXTURES
X. Xxxxxx will reimburse Landlord for the cost of lamps, ballasts and
starters and the cost of replacing same within the Premises.
VI. CAFETERIA AND VENDING INSTALLATIONS
A. Any space within the Premises to be used primarily for lunchroom or
cafeteria operation shall be Tenant's responsibility to keep clean and
sanitary, it being understood that Landlord's approval of such use
must be first obtained in writing.
B. Vending machines or refreshment service installation by Tenant must be
approved by Landlord in writing and shall be restricted in use to
employees and business callers. All cleaning necessitated by such
installation shall be at Tenant's expense.
VII. ADDITIONAL SERVICES
A. Any additional services provided by Tenant which are not provided in
like manner or quantities to all Tenants shall be at tile sole cost of
those Tenants receiving such service or services.
B. Landlord shall remove snow from the parking lot and walkways.
C. Landlord shall maintain exterior landscaping.
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EXHIBIT "D"
ADDITIONAL PROVISIONS
8.16 TENANT'S PARKING: In consideration for Xxxxxx's execution of this
Lease (and for so long as this Lease shall remain in full force and effect),
Tenant shall have the right, without charge, to use 14 parking spaces ("Tenant's
Spaces") in the parking garage serving the Building. The use of Tenant's Spaces
shall be subject to the following terms and conditions;
1) The availability of Tenant's Spaces constitutes a right to use
unreserved spaces in the garage and does not constitute a representation or
warranty that any particular space in the garage will be available at any
time.
2) The right to use Tenant's Spaces shall be made available by Tenant only
to its employees, customers and other invitees; and such right shall not be
subleased, assigned or otherwise severed from the tenant's interest under
this Lease.
3) The provisions of Sections 5.6 and 5.7 of this Lease shall apply to
Tenant's exercise of its rights under this Section 8.16.
4) The use of Tenant's Spaces shall be subject to such rules and
regulations as may be adopted by Landlord from time to time for application
generally to par-ties permitted to use the garage.
8.17 LANDLORD'S IMPROVEMENTS TO THE COMMON AREAS: Landlord has indicated to
Tenant that Landlord intends to renovate tile common areas of the Building in
various respects, and Landlord acknowledges that it has been informed by Tenant
that such indication has served as a material inducement to Tenant to enter into
this Lease. Specifically, Landlord has indicated its intention to (i) renovate
the main building lobby (including, if reasonably practicable, installation of a
stairway to tile second floor of the Building), (ii) install a new tenant
directory in the main building lobby, and (iii) paint walls, repair ceilings and
install new carpeting and lighting in the common hallways of the Building.
8.18 TEMPORARY PREMISES: As used herein, the "Temporary Premises" shall
mean the premises shown on Exhibit I annexed, consisting of a rentable area of
1130 square feet. Following the execution of this Lease. Tenant shall have the
right to use and occupy the Temporary Premises. Such use and occupancy shall be
upon all of the terms and conditions set forth in this Lease, except that
Tenant's monthly Annual Rent obligation with respect to the Temporary Premises
shall be $2165.83 per month (and proportionately at such rate for any partial
month), being the product of tile rentable area of the Temporary Premises and
1/12 of $23.00. Promptly upon the occurrence of the Commencement Date, Tenant
shall quit and deliver up to Landlord the Temporary Premises, the Temporary
Premises to be then in the condition which the Premises are required to be in
upon the expiration or earlier termination of this Lease. If Xxxxxx fails to
quit and deliver up the Temporary
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Premises in a timely manner, then, in addition to such other rights and remedies
as may accrue to Landlord. Tenant shall be liable for "holdover rent" with
respect to the Temporary Premises, computed in the manner provided in Section
5.13, above.
If the Commencement Date is a day other than the first day of a calendar
month, then Tenant shall receive a credit toward Tenant's first Annual Rent
payment with respect to the Premises in an amount equal to (i) the Annual Rent
payment made by Tenant with respect to the Temporary Premises, for the calendar
month in which the Commencement Date occurs, multiplied by (ii) a fraction whose
numerator is the number of days between the Commencement Date and the last day
of' the calendar month in which the Commencement Date occurs (inclusive) and
whose denominator is the number of days in the calendar month in which the
Commencement Date occurs.
8.19 TENANT'S OPTION TO EXTEND: So long as this Lease is then in full force
and effect and Tenant is not in default, beyond the expiration of any applicable
grace and/or cure periods, in the performance of its obligations hereunder,
Tenant shall have the option to extend this Lease for one period of sixty (60)
months (the "New Term"), commencing on the first day of the sixty-first full
calendar month following the Commencement Date. If Tenant shall exercise such
option in a timely manner, then this Lease shall automatically be extended for
the New Term, on all of the terms and conditions set forth herein, without the
execution of any further instrument. If, however, Tenant shall not exercise such
option in a timely manner, then Tenant shall have no further right to extend the
Term of this Lease, and this Lease shall expire on the Expiration Date specified
in Section 1.1.
Tenant's option to extend the Term for the New Term shall be exercised (and
Annual Rent for tile New Term shall be determined) in the following manner:
(a) Not later than with eight (8) months prior to the "Expiration
Date", Tenant shall provide Landlord with notice (the
"Intention Notice") of Tenant's potential desire to extend the
Term. If Tenant falls to deliver the Intention Notice on or
before with eight (S) months prior to the Expiration Date,
Tenant shall have no further right to extend the Term.
(b) If Tenant delivers the Intention Notice in a timely manner,
then, not later than seven (7) months prior to the Expiration
Date, Landlord shall notify Tenant, in writing, of' Landlord's
estimate ("Landlord's Estimate") of the fair market rental
value for the Premises with respect to the first twelve (12)
months of the New Term.
(c) Within 15 days after Xxxxxx's receipt of Landlord's Estimate,
Xxxxxx shall inform Landlord if Tenant disputes Landlord's
Estimate. Tenant's failure to notify Landlord prior to the
expiration of such fifteen (15) day period shall be deemed to
constitute a waiver of Tenant's right to dispute Landlord's
Estimate, and, if the Term is extended for the New Term.
Annual Rent for the first twelve (12) months of the New Term
will be deemed to have been established as Landlord's
Estimate.
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(d) If Tenant notifies Landlord of Xxxxxx's desire to dispute
Xxxxxxxx's Estimate, Landlord and Tenant shall each select an
independent appraiser, who shall attempt to reach agreement as
to the fair market rental value for the Premises for the first
twelve (12) months of the New Term. If they are unable to
agree, the appraisers selected by Xxxxxx and Landlord shall
mutually agree upon a third appraiser, who shall choose either
the value proposed by Xxxxxx's appraiser or the value proposed
by Xxxxxxxx's appraiser as being the fair market rental value
for the Premises for the first 12 months of the New Term. The
Annual Rent for the first 12 months of the New Term shall be
deemed to be the fair market rental value as determined by the
appraiser(s); provided, however, that the Annual Rent for the
first 12 months of the second New Term shall be not less than
the annual rent payable with respect to the 12 months
immediately preceding the Expiration Date.
Each appraiser shall be a reputable independent MAI real
estate appraiser, with at least 5 years of experience in the
Commonwealth of Massachusetts. The costs and expenses of the
appraiser selected by Landlord shall be borne by Landlord; the
costs and expenses of the appraiser selected by Tenant shall
be borne by Tenant: and tile costs and expenses of the third
appraiser (if any) shall be shared equally by Xxxxxx and
Landlord.
(e) Tenant shall have the right to exercise its option to extend
the Term by notice to Landlord not later than that date (the
"Last Notice Date") which is the later to occur of (i) thirty
(30) days after the date on which the Annual Rent payable with
respect to the first twelve (12) months of the New Term has
been established and (ii) six (6) months prior to the
Expiration Date. If Tenant shall fall to exercise its option
to extend tile Term prior to the Last Notice Date, Tenant
shall have no further right to extend the Term and this Lease
shall expire as of the Expiration Date. However,
notwithstanding such failure by Tenant, Landlord shall have
the option (which option shall be exercised, if at all, by
notice to Tenant not later than thirty (30) days after the
Last Notice Date), if the Last Notice Date is a date which is
later than six (6) months prior to the Expiration Date, to
extend the Term for a period equal to the number of days
between the date which is six (6) months prior to the
Expiration Date and the Last Notice Date, for Annual Rent
which is the Annual Rent in effect immediately prior to the
Expiration Date.
(f) If the Annual Rent payable with respect to the first 12 months
of the New Term has not been established prior to the
Expiration Date, Tenant shall continue to pay Annual Rent on
the basis of the Annual Rent payable with respect to the
twelve (12) months immediately preceding the Expiration Date.
If the Term is subsequently extended, then, at such time as
the new Annual Rent has been established, (i) all future
payments of Annual Rent during the first 12 months of the New
Term shall be in the amount so established and (ii) if the new
Annual Rent is higher than the Annual Rent previously paid by
Tenant, Tenant shall make an appropriate
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additional payment allocable to the period prior to the
establishment of the new Annual Rent, to the end that Tenant
will be required to pay the new Annual Rent with respect to
the entire first 12 months of the New Term.
(g) Annual Rent for the second 12 months of the New Term "I be the
sum of (i) Annual Rent for the first 12 months of the New
Term, plus (ii) S-50 x the rentable floor area of the
Premises. Annual Rent for each succeeding 12 month period
during the New term shall be the sum of (i) Annual Rent for
the immediately preceding 12 month period, plus (ii) $.50 x
the rentable floor area of the Premises.
8.20 REDUCTION OF THE SECURITY DEPOSIT: As used herein, the "Reduction
Date" shall mean that date (if any) on which all of the following conditions
have been satisfied:
(i) Xxxxxx has, throughout the Term of this Lease, satisfied in a
timely manner all of its monetary obligations hereunder, as well as all
other material obligations hereunder;
(ii) Tenant has completed an "Initial Public Offering",
(iii) Tenant has a net worth of at least $5,000,000; and
(iv) For each of four consecutive fiscal quarters following the
completion of its Initial Public Offering, Tenant's activities have
resulted in a profit (as determined in accordance with generally
accepted accounting principles, consistently applied).
At such time (if any) as the Reduction Date has occurred, Tenant shall so
notify Landlord. (Such notice shall be accompanied by such materials as may
reasonably be required in order to permit Landlord to confirm that, in fact, the
Reduction Date has occurred.) Upon Xxxxxxxx's receipt of such notice (and
Landlord's confirmation that, in fact, the Reduction Date has occurred), the
security deposit hereunder shall be reduced by $40,066.00 (i.e. 50% of the
security deposit specified in Section 1.1), and the amount of such reduction
shall promptly be reimbursed to Tenant by Landlord
8.21 CREATION OF A RIGHT OF FIRST OFFER, IN FAVOR OF TENANT: As used
herein, a "Junior Right of First Offer" shall mean a right of first offer
granted by Landlord while Tenant occupies the Affected Floor with respect to any
portion of that floor of the Building on which the Premises are situated from
time to time (the "Affected Floor"), in favor of any other tenant of the
Building. If Landlord grants any Junior Right of First Offer, Landlord shall so
notify Tenant. (Such notice shall be accompanied by a copy of the Junior Right
of First Offer.) Upon the granting of a Junior Right of First Offer, an
identical night of first offer ("Tenant's Right of First Offer"), having
priority over the Junior Right of First Offer, shall deemed to have been created
in favor of Xxxxxx. Thereafter, if, while Xxxxxx still occupies the Affected
Floor, a condition arises which would permit the holder of the Junior Right of
First Offer to exercise the Junior Right of First Offer, Tenant shall also have
the right to exercise Xxxxxx's Right of First Offer; and the holder of the
Junior Right of First Offer
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shall not be permitted to exercise the Junior Right of First Offer unless Tenant
either waives Tenant's Right of First Offer or fails to exercise Tenant's Right
of First Offer in a timely manner. If Tenant waives (or fails to exercise in a
timely manner) Xxxxxx's Right of First Offer, then Tenant's Right of First Offer
shall be deemed to have been terminated, Tenant shall have no further right of
first offer with respect to any portion of the Affected Floor and this Section
8.21 shall automatically be deemed to have been deleted from this Lease in its
entirety.
8.22 TENANT'S CONTRIBUTION TOWARD THE COST OF LANDLORD'S WORK: Upon the
substantial completion of Landlord's Work, Landlord shall submit to Tenant a
statement, in reasonable detail, of the costs and expenses incurred by Landlord
in connection with Xxxxxxxx's Work. Within fifteen (15) days following Xxxxxx's
receipt of such statement, Tenant shall deliver to Landlord a payment, as a
contribution toward such costs and expenses, in the amount of $52,260.00 (i.e.
$7.50 x the rentable floor area of the Premises).
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EXHIBIT "E"
000 XXXXXXXXXX XXXXXX
BUILDING STANDARD TENANT IMPROVEMENT
Floor Coverings: 30 ounce carpet shall be provided throughout the tenant
space. Material to be selected by tenant from building
standard samples.
Partitions: a. Partitions will be 5/8" metal studs 16" o.c. with one
layer of 1/2" gypsum wallboard on each side.
Partitions will extend from floor to 2" above
suspended acoustic ceiling. Demising wall partitions
will be constructed with 3-5/8" metal studs with one
layer of 5/8" fire code gypsum wallboard on each side
insulated with 3-1/2" fiberglass batt insulation and
shaft extend to underside of the floor above. One
half of tenant's demising wall will be credited
against the interior partition allowance.
b. All partitions will have a vinyl base 4" high, color
to be selected from building standard samples.
c. interior partition allowance shall be one lineal foot
of partition for every 15 feet of net usable floor
space.
Door: a. Entrance Doors - Each tenant's principal entry door
will be a 3'-0' x 7'-8" x 1-3/4" solid core oak door
entry-way with glass insert. `Me door will have a
natural sealed finish and a 1'-6" wide full height
sidelight.
b. Interior Doors - Each tenant shall be provided with
one interior door per 25 lineal feet of interior
partition allowance. The interior door shall consist
of a 3'-0" x 6'-8" x 1-3/4" wood solid core oak door
in a natural sealed finish. The frame shall be
pressed metal and will receive two coats of enamel
paint from building standard samples. Hardware will
include one lever handle passage set and door
doorstop.
c. Egress Doors - The tenant egress door unit shall
consist of a 3'-0" x 7'-8" x 1-3/4" solid core oak
door and frame The door will have a naturally sealed
finish Hardware "I include one lever handle mortised
lock set, closer and doorstop in a brass finish.
Allowance of one per tenant space in excess of 2,000
usable square feet.
Ceiling: A simulated 2'x 2' tegular, fissured acoustical tile in a
2'x 4'grid system. Acoustical ceilings shall be installed
at a height of approximately 7'-6"
Lighting: 2'x 4'parabolic fixtures.
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Page 2.
EXHIBIT "E"
Window Treatment: Horizontal blinds will be provided on all exterior
windows.
Wall Finishes: All interior partitions will receive one coat of primer
and two coats of latex wall paint with an eggshell finish.
Color selection will be from tenant standard selections
with not more than one color per room.
Electrical a. Outlets - One duplex outlet will be provided for each
100 square feet of usable area.
b. Switches - One single pole quiet wall switch for
every 350 square feet of usable area.
Telephone Outlets: One telephone outlet box and conduit to top of interior
partitions will be provided for every 275 square feet of
usable area. Tenant is responsible for all wiring, jacks
and telephone equipment.
Heating, Ventilating
& Air Conditioning: Landlord shall provide heating, air conditioning and
ventilation in good working order and condition. The
system shall include all distribution ductwork, diffusers,
return air grilles and thermostatic control for a normal
office layout.
Sprinklers: Landlord will provide a sprinkler system throughout the
building in accordance with current fire safety codes.
Tenant Sign &
Directory: Landlord will provide one tenant entry sign. Tenants will
be provided with their name on the Building Directory in
the lobby area.
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EXHIBIT F
[Plan showing an outline and location of the temporary premises.]
46
EXHIBIT G
The HVAC system shall maintain 72 degrees DB and 50% or less relative humidity
in summer and 75 degrees DB in winter under current ASHRAE outside design
conditions for the locality (under 1% occurrence column).
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AMENDMENT TO LEASE
Reference is made to the following facts, documents and definitions:
A. Landlord: 000 Xxxxxxxxxx Xxxxxx, LLC
B. Tenant: MCK Telecommunications, Inc.
X. Xxxxx: That certain Xxxxx, dated as of June 2, 1997, by and
between Landlord as Landlord and Xxxxxx as Tenant.
Terms which are used herein but which are not
otherwise defined herein shall have meanings ascribed
to such terms in the Lease.
D. Original Premises: The premises demised to Tenant pursuant to the lease,
consisting of 6,968 rentable square feet of space in
the Building.
E. New Office Space: Certain premises in the Building as shown on Exhibit
A-1, annexed, consisting of 1,055 rentable square
feet of space in the Building.
F. Storage Space: Certain premises in the Building as shown on Exhibit
A-1, annexed, consisting of 42 rentable square feet
of space in the Building.
G. Effective date: The date on which the new Office Space and the
Storage Space are delivered to Tenant by Landlord. At
such time as the effective Date has occurred,
Landlord and Tenant shall enter into a written
instrument, confirming the exact date of the
Effective Date.
X. Xxxxxxxx and Tenant wish to amend the Lease, so as to add the New Office
Space and the Storage Space to the premises demised under the Lease.
Now therefore, for one ($1.00) dollar and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the
parties hereto, Landlord and Tenant agree that the Lease shall be (and it hereby
is) amended in the following respects:
1. Promptly following the execution of this Amendment to Lease, Landlord shall
deliver to Tenant the New Office Space and the Storage Space. Thereafter,
Xxxxxx's rights and obligations with respect to the New Office Space and the
Storage Space shall be governed by all of the terms and conditions set forth in
the Lease (as amended hereby), all as if the Premises as originally described in
the Lease had consisted of the Original Premises, the New Office Space and the
Storage Space.
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2. Tenant expressly agrees that it will accept possession of the New Office
Space and the Storage Space in a totally "as is" condition, and that Landlord
shall have no obligation to alter, renovate or improve the New Office Space or
the Storage Space in any respect (provided, however, that the Storage Space
shall be delivered to Tenant in "broom-clean" condition).
3. The New Office Space shall be used solely for general office purposes, and
the Storage Space shall be used solely for storage purposes.
4. From and after the Effective Date, the Rentable Floor Area of Tenant's
Space shall be deemed to be 8,023 square feet (i.e., the sum of the rentable
area of the Original Premises and the rentable area of the New Office Space),
Tenant's Share of Building Operation Costs and Real Estate Taxes shall be deemed
to be 10.49% (i.e., the percentage obtained by dividing the sum of the rentable
area of the Original Premises and the rentable area of the New Office Space by
the Rentable Floor Area of the Building) and Tenant's Share of Office Operation
Costs shall be deemed to be 12.13% (i.e., the percentage obtained by dividing
the sum of the rentable area of the Original Premises and the rentable area of
the New Office Space by the Rentable Floor Area of the Office Areas).
5. From and after the Effective Date, Annual Rent shall be payable in
accordance with the following schedule:
a. For the period commencing on the Effective Date and ending on August
31, 1998 - $186,449.00 per annum (i.e., $15,537.42 per month, and
proportionately at such rate for any partial calendar month),
consisting of $186,029.00 per annum for the Original Premises and the
New Office Space + $10.00 per rentable square foot per annum for the
Storage Space.
b. For the period commencing on September 1, 1998 and ending on August 31,
1999 - $190,460.50 per annum (i.e., $15,871,71 per month), consisting
of 190,040.50 per annum for the Original Premises and the New Office
Space + $10.00 per rentable square foot per annum for the Storage
Space.
c. For the period commencing on September 1, 1999 and ending on August 31,
2000 - 194,493.00 per annum (i.e., $16,207.75 per month), consisting of
194,052.00 per annum for the Original Premises and the New Office Space
+ $10.50 per rentable square foot per annum for the Storage Space.
d. For the period commencing on September 1, 2000 and ending on August 31,
2001 - 202,537.00 per annum (i.e., $16,878.03 per month), consisting of
$202,075.00 per annum for the Original Premises and the New Office
Space + $11.00 per rentable square foot per annum for the Storage
Space.
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e. For the period commencing on September 1, 2001 and ending on August 31,
2002 - $206,569.50 per annum (i.e., $17,214.13 per month), consisting
of $206,086.50 per rentable square foot per annum for the Original
Premises and the New Office Space + $11.50 per rentable square foot per
annum for the Storage Space.
6. Section 8.16 of Exhibit "D" to the Lease (entitled "Tenant's Parking" is
amended so as to provide that Tenant's Spaces shall consist of 16 parking spaces
(and not 14 parking spaces, as heretofore provided in the Lease).
7. Except as expressly set fourth herein, the Lease shall be and remain in
full force and effect, in accordance with its terms.
EXECUTED under xxxx, as of April 22, 1998.
000 XXXXXXXXXX XXXXXX, LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx
Its Manager
MCK TELECOMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Its CFO
hereunto duly authorized
3
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EXHIBIT A-1
MCK EXPANSION
SPACE (OFFICE & STORAGE)
[Plan showing an outline and location of the premises.]
51
EXHIBIT A-1
MCK EXPANSION
SPACE (OFFICE & STORAGE)
[Plan showing an outline and location of the premises.]
52
SECOND AMENDMENT TO LEASE
Reference is made to the following facts, documents and definitions:
A. Landlord: - 000 Xxxxxxxxxx Xxxxxx, LLC
B. Tenant - MCK Telecommunications, Inc.
X. Xxxxx - That certain Xxxxx, dated as of June 2, 1997, by and between
Landlord as Landlord and Xxxxxx as Tenant, as amended by that certain Amendment
to Lease Dated April 22, 1998. Terms which are used herein, but which are not
otherwise defined herein shall have the meanings ascribed to such terms in the
Lease.
D. Second Storage Space - Certain premises in the Building as shown on
Exhibit A-2, annexed, consisting of fifty (50) rentable square feet of space in
the Building.
E. Effective Date - The date on which the Second Storage Space is delivered
to Tenant by Landlord. At such time as the Effective Date has occurred, Landlord
and Tenant shall enter into a written instrument, confirming the exact date of
the Effective Date.
X. Xxxxxxxx and Tenant wish to amend the Lease, so as to add the Second
Storage Space to the premises demised under the Lease.
Now therefore, for $1.00 and other good and valuable consideration, the receipt
and sufficiency of which are acknowledged by the parties hereto, Landlord and
Tenant agree that the Lease shall be (and it hereby is) amended in the following
respects:
1. Promptly following the execution of this Second Amendment to Lease,
Landlord shall deliver to Tenant the Second Storage Space. From and after the
Effective Date, Xxxxxx's rights and obligations with respect to the Second
Storage Space shall be governed by all of the terms and conditions set forth in
the Lease (as amended hereby), all as if the Premises as originally described in
the Lease had included the Second Storage Space.
2. Tenant expressly agrees that it will accept possession of the Second
Storage space in a totally "as is" condition, and that Landlord shall have no
obligation to alter, renovate or improve the Second Storage Space in any respect
(provided, however, that the Second Storage Space shall be delivered to Tenant
in "broom clean" condition).
3. The Second Storage Space shall be used solely for storage purposes.
4. Notwithstanding the inclusion of the Second Storage Space in the
Premises under the Lease, the Rentable Floor Area of Tenant's Space, Tenant's
share of Building Operation Costs and Real Estate Taxes and Tenant's Share of
Office Operation Costs shall not be altered.
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5. From and after the Effective Date, Annual Rent shall be increased in
accordance with the following schedule:
(a) For the period commencing on the Effective Date and ending on
august 31, 1999 - $420 (i.e., $10.00 per rentable square foot per annum
for the Second Storage Space).
(b) For the period commencing on September 1, 1999 and ending on August
31, 2000 - $441 (i.e., $10.50 per rentable square foot per annum for
the Second Storage Space).
(c) For the period commencing on September 1, 2000 and ending on august
31, 20001 - $462 (i.e., $11.00 per rentable square foot per annum for
the Second Storage Space).
(d) For the period commencing on September 1, 2001 and ending on August
31, 2002 - $483 (i.e., $11.50 per rentable square foot per annum for
the Second Storage Space).
6. Except as expressly set forth herein, the Lease shall be and remain in
full force and effect, in accordance with its terms.
Executed under seal, as of June 30, 1998
000 Xxxxxxxxxx Xxxxxx, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx, its Manager
MCK Telecommunications, Inc.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Its CFO
hereunto duly authorized
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EXHIBIT A-2
MCK STORAGE SPACE
[Plan showing an outline and location of the premises.]