Exhibit 10.7
OFFICE LEASE
by and between
ONE CABOT ROAD INVESTORS, L.L.C.
("Landlord")
and
C ME RUN CORPORATION
("Tenant")
Dated: March 10, 2000
TABLE OF CONTENTS
Page
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ARTICLE I
REFERENCE DATA ............................................................. 1
1.1 Commencement Date .............................................. 1
1.2 Building ....................................................... 1
1.3 Leased Premises ................................................ 1
1.4 Land ........................................................... 1
1.5 Property ....................................................... 1
1.6 Landlord's Mailing Address ..................................... 2
1.7 Tenant's Mailing Address ....................................... 2
1.8 Brokers ........................................................ 2
1.9 Tenant's Prorata Share ......................................... 2
1.10 Security Deposit ............................................... 2
1.11 Guarantor ...................................................... 2
1.12 Leased Premises Rentable Area .................................. 2
1.13 Permitted Use .................................................. 2
1.14 Lease Year ..................................................... 2
1.15 Base Year Taxes ................................................ 2
1.16 Base Year Operating Costs ...................................... 3
ARTICLE II
LEASE TERM; EXTENSIONS ............................................... 3
2.1 Term ........................................................... 3
2.2 Extension Rights ............................................... 4
ARTICLE III
RENT ................................................................. 4
3.1 Base Rent ...................................................... 4
3.2 Additional Rent ................................................ 5
3.3 Manner of Payment of Additional Rent ........................... 6
3.4 Audit Right of Tenant .......................................... 6
ARTICLE IV
SECURITY DEPOSIT ..................................................... 7
4.1 Handling of Security Deposit ................................... 7
4.2 Restoration of Security Deposit ................................ 8
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ARTICLE V
UTILITIES AND SERVICES ............................................... 8
5.1 Electricity .................................................... 8
5.2 Other Utilities ................................................ 8
5.3 Tenant's Obligations Regarding Additional Utilities ............ 8
5.4 Landlord's Right to Install Other Utilities .................... 9
5.5 Janitorial Services ............................................ 9
ARTICLE VI
USE OF LEASED PREMISES ............................................... 9
6.1 Use of Leased Premises ......................................... 9
6.2 Compliance with Laws ........................................... 9
6.3 Compliance with Americans with Disabilities Act ................ 9
6.4 No Nuisance or Other Harmful or Disruptive Activity ............ 10
6.5 Compliance with Fire Insurance Requirements .................... 10
6.6 Hazardous Materials ............................................ 10
ARTICLE VII
MAINTENANCE; REPAIRS ................................................. 11
7.1 Tenant's Obligations ........................................... 11
7.2 Landlord's Obligations ......................................... 12
7.3 Removal of Snow, Ice and Debris ................................ 12
7.4 Tenant's Failure to Make Repairs ............................... 12
ARTICLE VIII
ALTERATIONS .......................................................... 12
8.1 Alterations or Additions by Tenant ............................. 12
8.2 Alterations or Additions by Landlord ........................... 13
ARTICLE IX
ASSIGNMENT; SUBLEASING ............................................... 13
9.1 Landlord's Consent ............................................. 13
9.2 Standards for Consent .......................................... 14
9.3 Affiliated Transfers ........................................... 14
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ARTICLE X
SUBORDINATION; ESTOPPEL CERTIFICATES ................................. 15
10.1 Subordination .................................................. 15
10.2 Estoppel Certificates .......................................... 15
ARTICLE XI
INDEMNIFICATION AND WAIVER ........................................... 16
11.1 Damage to Property ............................................. 16
11.2 Indemnity Against Liability .................................... 17
11.3 Waiver of Claims ............................................... 17
ARTICLE XII
INSURANCE ............................................................ 17
12.1 Insurance to be Maintained by Tenant ........................... 17
12.2 Other Insurance Requirements ................................... 18
12.3 Waiver of Subrogation .......................................... 18
12.4 Insurance to be Maintained by Landlord' ........................ 18
ARTICLE XIII
FIRE; CASUALTY; EMINENT DOMAIN ....................................... 19
13.1 Damage by Casualty ............................................. 19
13.2 Tenant's Option to Terminate in the Event of a Taking .......... 20
13.3 Landlord's Option to Terminate in the Event of a Taking ........ 20
13.4 Miscellaneous Provisions Regarding Casualty or Taking .......... 21
ARTICLE XIV
DEFAULT; REMEDIES; BANKRUPTCY ........................................ 21
14.1 Events of Default .............................................. 21
14.2 Landlord's Remedies ............................................ 23
14.3 Landlord's Cure Rights ......................................... 24
14.4 Tenant's Obligation to Reimburse Landlord ...................... 24
14.5 No Waiver ...................................................... 25
14.6 Acceptance of Late Payments .................................... 25
14.7 Interest on Late Payments ...................................... 25
14.8 Remedies Cumulative ............................................ 25
14.9 Landlord's Rights in Tenant's Bankruptcy ....................... 25
14.10 Landlord's Default ............................................. 26
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ARTICLE XV
SURRENDER; HOLDING OVER .............................................. 27
15.1 Surrender of Leased Premises ................................... 27
15.2 Holding Over ................................................... 27
ARTICLE XVI
LANDLORD'S LIABILITY ................................................. 28
16.1 Limited Recourse ............................................... 28
16.2 Interruption of Services and Utilities ......................... 28
16.3 No Consequential Damages ....................................... 28
16.4 Liability after Conveyance of Property ......................... 28
ARTICLE XVII
MISCELLANEOUS PROVISIONS ............................................. 29
17.1 Governing Law .................................................. 29
17.2 Partial Invalidity ............................................. 29
17.3 Captions ....................................................... 29
17.4 Successors and Assigns ......................................... 29
17.5 Recording of Lease ............................................. 29
17.6 Entire Agreement ............................................... 29
17.7 Amendments ..................................................... 29
17.8 Quiet Enjoyment ................................................ 29
17.9 No Partnership ................................................. 29
17.10 Time of Essence ................................................ 30
17.11 Brokerage ...................................................... 30
17.12 Rules and Regulations .......................................... 30
17.13 Signs .......................................................... 30
17.14 Landlord's Access and Tenant's Access; Security ................ 30
17.15 Notices ........................................................ 31
17.16 No Merger ...................................................... 31
17.17 No Offer ....................................................... 31
17.18 Waiver of Jury Trial ........................................... 31
17.19 Financial Reports .............................................. 31
17.20 Landlord's Fees ................................................ 32
17.21 Telecommunications ............................................. 32
17.22 Intentionally Omitted .......................................... 32
17.23 Notice to Landlord's Mortgagee ................................. 32
17.24 Condition of Leased Premises ................................... 33
17.25 Landlord's Work ................................................ 33
17.26 Relocation ..................................................... 34
17.27 Right of First Offer ........................................... 34
17.28 Tenant Improvements ............................................ 34
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Exhibit FP - Floor Plan of Leased Premises
Exhibit LD - Site Plan
Exhibit OC - Operating Costs
Exhibit FMRV - Calculation of Fair Market Rental Value
Exhibit RR - Rules and Regulations
Exhibit LW - Landlord Work
Exhibit TI - Tenant Improvements
Exhibit J - Janitorial Services
Exhibit ER - Existing Rights of Other Tenants in Expansion Space
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OFFICE LEASE
THIS OFFICE LEASE (this "Lease") is made as of the 10th day of March,
2000, by and between One Cabot Road Investors, L.L.C., having a business address
c/o Xxxxxxx-Xxxxxx Partners, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000
("Landlord") and C Me Run Corporation, a Delaware corporation, having a business
address at 0000 XxxxXxxx Xxxxx, Xxxxxxxx, XX 00000 ("Tenant").
Subject to the covenants, conditions and other provisions of this Lease,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the
Leased Premises (as defined below), together with the non-exclusive right to use
in common with others the Common Facilities (as defined below) and the right to
use in common with other tenants, sixty-one (61) unassigned parking spaces on
the Land.
ARTICLE I
REFERENCE DATA
Each of the capitalized terms used in this Lease shall have the meaning
set forth opposite such term below;
1.1 Commencement Date: March 10, 2000
1.2 Building: The building located at Xxx Xxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxxxx, containing
approximately Sixty-Six Thousand Two
Hundred Thirty-Six (66,236) rentable
square feet of floor space.
1.3 Leased Premises: A portion of the Building containing
approximately seventeen thousand five
hundred eighteen (17,518) square feet of
floor space, located within the Building
on the first (1st) floor as shown on
Exhibit FP attached hereto.
1.4 Land: The land on which the Building is
located, as described in the legal
description attached hereto as Exhibit LD.
1.5 Property: The Land, the Building, the Common
Facilities and the other common areas and
the other improvements on the Land.
1.6 Landlord's Mailing Address: 000 Xxxxx Xxxxxx Xxxxxx, Xxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxxxx
1.7 Tenant's Mailing Address: 0000 XxxxXxxx Xxxxx, Xxxxxxxx, XX 00000
1.8 Brokers: Xxxxx & Xxxxx Company
1.9 Tenant's Prorata Share: Twenty-Six and 4/10 percent (26.4%)
1.10 Security Deposit: One Hundred Seventy-Seven Thousand Three
Hundred Sixty-Nine and 75/100 Dollars
($177,369.75) of which Eighty-Eight
Thousand Six Hundred Eighty-Four and
88/100 Dollars ($88,684.88) shall be
delivered in cash (the "Cash Deposit")
with the remainder to be in the form of
an irrevocable standby letter of credit
complying with Section 4.1 below (the
"Letter of Credit"). The Cash Deposit
and the Letter of Credit are referred to
collectively, as the "Security Deposit"
1.11 Guarantor: N/A
1.12 Leased Premises Rentable Area: Seventeen thousand five hundred eighteen
(17,518) rentable square feet
1.13 Permitted Use: General office and uses customarily
incidental thereto, such as lunchroom
and storage but only to the extent
permitted by applicable zoning and no
other purpose.
1.14 Lease Year: A period of twelve (12) consecutive
calendar months commencing on the
Commencement Date (or the first day of
the first calendar month after the
Commencement Date occurs if the
Commencement Date is any day other than
the first day of a month), and then each
consecutive twelve (12) month period
occurring thereafter during the Term of
this Lease.
1.15 Base Year Taxes: Total Taxes (as defined below) paid with
respect to the Property for the period
from July 1, 1999 through June 30, 2000
(i.e., fiscal tax year 2000); provided,
however, if at the time the Building
reaches ninety-five percent (95%)
occupancy, it can
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be reasonably determined that the
assessment of the Property has been
increased to reflect an increase in the
occupancy of the Building over the
occupancy level that existed on the
relevant assessment date for fiscal year
2000, then the Base Year Taxes shall be
calculated to equal the product of (a)
the new, higher assessed value which
reflects such ninety-five percent (95%)
occupancy (as distinct from any increased
valuation which is part of a general
increased valuation of all the property
within the Town of Xxxxxx) times (b) the
tax rate in effect for the Property for
fiscal year 2000.
1.16 Base Year Operating Costs: Total Operating Costs (as defined below)
paid with respect to the Property for the
period from January 1, 2000 through and
including December 31, 2000; however, if
during such period average occupancy of
the Building was less than ninety-five
percent (95%), then Base Year Operating
Costs shall be adjusted as reasonably
appropriate to reflect the Operating
Costs which would have been incurred had
average occupancy of the Building for
such period been ninety-five percent
(95%).
1.17 Common Facilities: The driveways and walkways necessary for
access to the Building and the parking
areas on the Land; the loading docks and
loading areas serving the Building; the
entrances, lobbies, stairways, freight
and passenger elevators, and corridors
necessary for access to said loading
docks, and the Leased Premises; rest
rooms on the same floor as the Leased
Premises; and the heating, ventilating,
air conditioning, plumbing, electrical,
security, emergency and other mechanical
systems and equipment serving the Leased
Premises in common with other portions of
the Building.
ARTICLE II
LEASE TERM; EXTENSIONS
2.1 Term. The term of this Lease shall be for a period of five (5) years
commencing on April 1, 2000 and ending on March 31, 2005 (the "Term"). Landlord
shall deliver the Leased Premises to Tenant, free of all tenants and occupants,
on the Commencement Date.
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2.2 Extension Rights. Provided there is no uncured Event of Default both
at the time of Tenant's exercise of its right to extend and at the commencement
of the Option Term, Tenant shall have the right to extend the Term for one (1)
five-year extension period (the "Option Term") upon the following terms and
conditions:
2.2.1 Tenant must notify Landlord in writing of its election to
extend the Term for the Option Term on or before April 1, 2004.
2.2.2 The annual Base Rent for each of the Option Term shall be
equal to the Fair Market Rental Value as determined pursuant to Exhibit FMRV
attached hereto as of the last day of the original Term.
2.2.3 Additional Rent (defined below) due for Real Estate Taxes
(defined below), Operating Costs (defined below), the costs of utilities and
other sums due under this Lease shall be payable during the Option Term in the
same manner as herein provided for the original Term.
2.2.4 All other provisions of this Lease shall also remain in effect
during the Option Term except the right to extend as set forth in this Section
2.2, it being agreed that there are no further rights of extension after the
Option Term. Unless expressly stated herein to the contrary, all references in
this Lease to the "Term" shall include the Option Term when and if Landlord
receives Tenant's notice of election to extend the Term as herein provided.
ARTICLE III
RENT
3.1 Base Rent. Tenant shall pay to Landlord annual rent equal to (i) Three
Hundred Fifty-Four Thousand Seven Hundred Thirty-Nine and 50/100 Dollars
($354,739.50) per year, payable in equal monthly installments of Twenty-Nine
Thousand Five Hundred Sixty-One and 63/100 Dollars ($29,561.63) each from April
1, 2000 through March 31, 2002, and Three Hundred Seventy-Two Thousand Two
Hundred Fifty-Seven and 50/100 Dollars ($372,257.50) per year, payable in equal
monthly installments of Thirty-One Thousand Twenty-One and 46/100 Dollars
($31,021.46) each from April 1, 2002 through the last day of the original Term
of this Lease ("Base Rent"), and (ii) an amount equal to the cost of the
electricity consumed by Tenant at the Building determined by a check meter (the
"Electricity Rent"). Landlord shall pay for the cost of such check meter.
Subject to the provisions of Section 17.25, payments of Base Rent shall be made
by Tenant at the Landlord's Mailing Address commencing on April 1, 2000 and
continuing thereafter on the first day of each month during the Term in advance,
without offset, deduction, demand, or abatement (except as otherwise expressly
specified in this Lease) whatsoever, in lawful money of the United States. The
Base Rent payment for any fractional month at the commencement, termination or
expiration of the Term will be prorated accordingly. Electricity Rent shall be
payable in monthly installments in arrears within thirty (30) days after Tenant
receives an invoice from Landlord stating the amount of electricity consumed by
Tenant
4
during the previous month according to said check meter and the actual cost to
Landlord of such electricity.
3.2 Additional Rent. In addition to the Base Rent and Electricity Rent,
Tenant shall pay to Landlord the following amounts as additional rent
("Additional Rent") hereunder:
3.2.1 Taxes. Commencing July 1, 2000, Tenant will pay to Landlord
Tenant's Prorata Share of the "Increased Taxes" (defined below) for each fiscal
tax year or portion thereof included within the Term. "Taxes" shall mean the
total of all real estate taxes, charges, and assessments, extraordinary as well
as ordinary, and any payments in lieu of such real estate taxes, levied,
imposed, or assessed for a particular fiscal year during the Term of this Lease
by governmental authorities upon or attributable to the Property, or to any and
all personally owned by Landlord installed in or about the same by Landlord and
used in connection with the operation of the Property. If due to a future change
in the method of taxation any franchise, income or profit tax shall be levied
against Landlord in substitution for or in lieu of any tax which would otherwise
constitute a real estate tax or payment in lieu of real estate tax, or if a
specific tax on rentals from the Property shall be levied against Landlord, such
franchise, rental, or income tax shall be deemed to constitute "Taxes" for the
purposes hereof. Notwithstanding any other provision of this Lease, "Taxes"
shall not include any tax on Landlord's net income or any inheritance, estate,
gift, transfer, succession, franchise, or capital stock tax. "Increased Taxes"
shall mean the amount, if any, by which total Taxes paid for any fiscal tax year
included within the Term exceed Base Year Taxes. If Landlord obtains an
abatement of any such Taxes, a proportionate share of such abatement, less the
reasonable fees and costs incurred in obtaining the same, shall be refunded to
Tenant. Taxes shall be deemed to be paid over the maximum time permitted under
law whether or not Landlord elects to pay same on such basis and only the amount
so payable in any fiscal year shall be included in Taxes for such year. If the
Term includes only a portion of any fiscal tax year, Tenant's Prorata Share of
Increased Taxes for such fiscal tax year shall be prorated according to the
fraction calculated by dividing (a) the total number of days in such fiscal tax
year included within the Term by (b) 365. Tenant shall be fully responsible for
any tax assessment or other charge levied by any governmental authority against
any personalty placed upon the Property by Tenant.
3.2.2 Operating Costs. Commencing January 1, 2001, Tenant shall pay
to Landlord Tenant's Prorata Share of the Increased Operating Costs (defined
below) for each calendar year. For the purposes of this Lease, the term
"Operating Costs" shall mean the items listed in Exhibit OC attached hereto and
made a part hereof subject to the exclusions set forth therein. "Increased
Operating Costs" shall mean the amount, if any, by which total Operating Costs
for any calendar year included within the Term exceed Base Year Operating Costs.
If during any calendar year less than ninety-five percent (95%) of the rentable
area of the Building is occupied, then Operating Costs for such calendar year
shall be adjusted reasonably to reflect the Operating Costs which
5
would have been incurred if at least ninety-five percent (95%) of the rental
area of the Building had been occupied during such calendar year. If the Term
includes only a portion of a calendar year, Tenant's Prorata Share of Increased
Operating Costs for such calendar year shall be prorated according to the
fraction calculated by dividing (a) the total number of days in such calendar
year included within the Term by (b) 365.
3.3 Manner of Payment of Additional Rent. Landlord shall reasonably
estimate Base Year Operating Costs, Increased Taxes, Increased Operating Costs,
and Tenant's Prorata Share of such Increased Taxes and such Increased Operating
Costs for the Lease Year in question and commencing July 1, 2000, Tenant shall
pay with each monthly installment of Base Rent during that Lease Year, in
advance as Additional Rent, an amount equal to one-twelfth (1/12th) of the total
of Tenant's Prorata Share of such estimated Increased Taxes and Increased
Operating Costs. If total payments made by Tenant based upon such estimates
exceed Tenant's Prorata Share of actual Increased Taxes and Increased Operating
Costs as finally determined for the Lease Year in question, then any overpayment
shall be credited in full to such payments and/or any rental payments next
coming due under this Lease or, if this Lease has expired or terminated and
Tenant has no further payment, maintenance or repair obligations to Landlord,
promptly refunded to Tenant. If total payments based upon such estimates are
less than the actual amounts required to pay in full Tenant's Prorata Share of
actual Increased Taxes and Increased Operating Costs for the year in question,
then Tenant shall pay to Landlord the full amount of the deficiency within
thirty (30) days after receiving written notice from Landlord of the amount of
such deficiency. Landlord shall provide a written statement of Taxes and
Operating Costs to Tenant within ninety (90) days after the end of each Lease
Year setting forth, in reasonable detail, the Increased Taxes and Increased
Operating Costs for the Lease Year in question. The Additional Rent payment for
any fractional month at the commencement, termination or expiration of the Term
shall be prorated accordingly. Payments of Additional Rent shall be made by
Tenant without offset, deduction, demand, or abatement whatsoever (except as
otherwise expressly provided in this Lease), in lawful money of the United
States.
3.4 Audit Right of Tenant. Tenant shall have the right to audit the
applicable records of Landlord to confirm that the Increased Taxes, Increased
Operating Costs and other charges billed to Tenant are proper and conform to the
provisions of the Lease. Such right shall be exercisable by Tenant (i) once each
Lease Year and (ii) within one year after Tenant's receipt of the Landlord's
statement of Taxes and Operating Costs with respect to such expenses and
charges. Tenant's right to audit the applicable records of Landlord shall be
exercisable with respect to the most recent statement of Taxes and Operating
Costs and the expenses and charges shown thereon only, and for no other expenses
or charges. Landlord shall cooperate with Tenant in providing Tenant reasonable
access to Landlord's books and records during normal business hours to enable
Tenant to audit Landlord's books and records as they relate to any costs or
expenses passed through to Tenant pursuant to any provisions of this Lease. If
the audit discloses any overpayment on the part of Tenant, then Tenant shall be
entitled to a credit on the next succeeding installments of Base Rent and
additional rent hereunder for an amount equal to the overcharge plus interest on
the amount of such overcharge from the date on which same was paid by Tenant
until the date refunded by Landlord at the prime rate as published in the Wall
Street Journal, and such credit shall be extended to
6
succeeding installments of Increased Operating Costs in the event such
overcharge exceeds the amount of the next succeeding such installment and, in
the event the term of this Lease has expired or been earlier terminated, then
Tenant shall be entitled to a refund of such excess from Landlord (net of any
amounts whatsoever which Tenant may still owe to Landlord notwithstanding such
expiration or early termination) within thirty (30) days after such date or
expiration or earlier termination. In addition, in the event such audit by
Tenant discloses such an overcharge in excess of five percent (5%) of the amount
payable in accordance with this Lease, then Landlord shall pay to the Tenant the
reasonable costs and expenses of such audit,
ARTICLE IV
SECURITY DEPOSIT
4.1 Handling of Security Deposit. Upon the execution of this Lease, Tenant
shall (i) pay to Landlord the Cash Deposit and (ii) deliver to Landlord the
Letter of Credit in form and substance and from a lender acceptable to Landlord
in its sole discretion, for the account of Tenant and for the benefit of
Landlord naming Landlord and its successors and assigns as beneficiary thereof
and expiring not earlier than two (2) months after the expiration of the Term
(including any extensions thereof) of this Lease, in each case in the amounts
specified in Section 1.10 above. The Cash Deposit and the Letter of Credit shall
be held as security for Tenant's performance of Tenant's obligations under this
Lease (and may be applied by Landlord to defray the cost or expense to Landlord
(including, without limitation, payment of any unpaid Rent) arising out of any
Event of Default by Tenant hereunder). The Cash Deposit shall be refunded to
Tenant at the end of the Lease Term, subject to Tenant's satisfactory compliance
with the conditions and obligations of this Lease. The Letter of Credit shall be
returned to Tenant two (2) months after the end of the Lease Term, subject to
Tenant's satisfactory compliance with the conditions and obligations of this
Lease and provided the amount of the Letter of Credit has not been reduced to
zero in accordance with the provisions of this Section 4.1 as set forth below.
Upon the occurrence of any Event of Default by Tenant hereunder, Tenant agrees
that Landlord may present the Letter of Credit to such lender for immediate
payment to Landlord. Any portion of the proceeds of the Letter of Credit not
applied to cure an Event of Default by Tenant hereunder shall be held by
Landlord as a Cash Deposit pursuant to the terms of Sections 4.1 and 4.2 of this
Lease. Landlord may co-mingle the Cash Deposit with Landlord's other funds.
Landlord shall at least annually pay over to Tenant or credit against rent owed
by Tenant any interest accrued at the average money market rate at Merchants
Bank of New York or its successor for the prior twelve (12) month period with
respect to the Cash Deposit. Further, Landlord shall have the right to turn over
the Security Deposit to any grantee of Landlord's interest in the Property; and
if so turned over, Tenant agrees to look solely to such grantee for proper
application of the Security Deposit. The following shall constitute immediate
Events of Default by Tenant under this Lease (which shall not be subject to any
cure period): (a) the expiration, lapse or revocation of the Letter of Credit;
and (b) Tenant's failure to maintain the Letter of Credit strictly in accordance
with the terms hereof. Provided Tenant is not then in default and has not
previously
7
defaulted, beyond applicable notice and cure periods on any term, covenant,
condition or provision of this Lease, Landlord shall notify Tenant that Tenant
may reduce the amount of the Letter of Credit according to the following
schedule:
----------------------------------------------------
Date Amount
----------------------------------------------------
Commencement Date $88,684.88
----------------------------------------------------
April 1, 2001 $59,123.25
----------------------------------------------------
April 1, 2002 $29,561.62
----------------------------------------------------
April 1, 2003 -0-
----------------------------------------------------
In the event that (a) Tenant has previously defaulted, beyond applicable
notice and cure periods on any term, covenant, condition or provision of this
Lease and, therefore, Landlord shall not have notified Tenant that the amount of
the Letter of Credit may be reduced as set forth above, and (b) Tenant shall not
default, beyond any applicable notice and cure periods on any term, covenant,
condition or provision of this Lease for a period of one (1) year following
Tenant's cure of its default(s), then the Letter of Credit reduction schedule
shall be revised such that each date of reduction shall be one (1) year later,
and the amount of the Letter of Credit shall be subject to adjustment as
otherwise set forth above; provided that, in the event Tenant subsequently
defaults on any term, covenant, condition or provision of this Lease, there
shall be no further reduction of the amount of the Letter of Credit.
4.2 Restoration of Security Deposit. In the event Landlord applies any
portion of the Security Deposit in accordance with Section 4.1 above, Tenant
shall immediately make payment to Landlord of the amount necessary to restore
the Cash Deposit to the full dollar amount set forth in Section 1.10, and/or
deliver to Landlord a new Letter of Credit necessary to restore the Letter of
Credit to the full amount set forth in Section 1.10, as applicable.
ARTICLE V
UTILITIES AND SERVICES
5.1 Electricity. Tenant shall pay directly to Landlord monthly (as set
forth in Section 3.1) Tenant's share of charges for electricity consumed in the
Leased Premises as established by the so-called check meter or sub-meter (the
"Sub-meter") between the main meter (the "Main Meter") for the Building and the
Leased Premises which monitors electricity usage at the Leased Premises.
Tenant's share shall equal the total monthly electric xxxx based upon the usage
reflected by the Main Meter, times a fraction of which the denominator is the
total kilowatt hours shown on the Main Meter for the month in question and the
numerator of which is the total kilowatt hours shown on the Sub-meter for the
month in question. Landlord shall provide heating, ventilation and air
conditioning ("HVAC") to the Leased Premises in quantities sufficient to
maintain the Leased Premises at reasonably comfortable temperatures (assuming a
reasonable
8
usage of HVAC) between the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday
and from 8:00 a.m. to 1:00 p.m. on Saturday, but excluding holidays (the "Normal
Hours HVAC"). Upon Tenant's request, which request must be made to Landlord's
property manager by 3:00 p.m. on the preceding business day, Landlord shall
provide HVAC beyond Normal Hours HVAC at a cost of thirty-five dollars ($35) per
hour.
5.2 Other Utilities. For any utility service provided to the Leased
Premises other than electricity, water or sewer, Tenant must make arrangements
directly with the provider of such utility service for bills to be rendered
directly to Tenant, and Tenant shall have full responsibility to pay all such
bills.
5.3 Tenant's Obligations Regarding Additional Utilities. Landlord shall
have no obligation to provide utilities or equipment other than the utilities
and equipment within the Leased Premises as of the Commencement Date of this
Lease. In the event Tenant's use of the Leased Premises requires additional
utilities or equipment or utilities of greater capacity, the installation and
maintenance thereof shall be Tenant's sole obligation and shall be performed at
Tenant's sole cost and expense, provided that such installation shall be subject
to the prior written consent of Landlord which shall not be unreasonably
withheld, delayed or conditioned.
5.4 Landlord's Right to Install Other Utilities. Landlord shall be
entitled to install in or through the Leased Premises (above drop ceilings) and
the Property and repair, maintain, and replace pipes, conduits, wires, and other
utility lines serving other tenants or portions of the Property provided said
installation, repair, maintenance or replacements do not unreasonably interfere
with Tenant's use of the Leased Premises, other than a reasonable time necessary
to complete such installation, repair, maintenance, or replacement. Landlord
shall provide at least forty-eight (48) hours advance written notice to Tenant
of any such work to be performed in or adjacent to the Leased Premises that may
reasonably be calculated to have an effect on the Tenant's use of the Leased
Premises and Landlord shall attempt to minimize any interference with Tenant's
use of the Leased Premises caused by such work.
5.5 Janitorial Services. Landlord shall provide janitorial services to the
Leased Premises according to the schedule attached as Exhibit J. The cost of
such services shall be included in Operating Costs.
ARTICLE VI
USE OF LEASED PREMISES
6.1 Use of Leased Premises. Tenant acknowledges that no trade or
occupation shall be conducted in the Leased Premises or use made thereof other
than the Permitted Use set forth in Section 1.13 above.
6.2 Compliance with Laws. Tenant, at its sole expense, shall comply with
all laws, rules, orders and regulations of federal, state, county, and municipal
authorities (collectively, "Governmental Regulations"), and with any direction
of any public officers pursuant to law,
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which impose any duty upon Landlord or Tenant with respect to Tenant's
particular manner of use of the Leased Premises (i.e., as opposed to office use
generally). Conversely, Landlord, at its sole expense, shall comply with all
Governmental Regulations and any such directions which impose any duty with
respect to the portions of the Building or Property outside of the Leased
Premises and to the Leased Premises respecting the use of same for office use
generally, except to the extent that such duty is triggered by Tenant's
particular manner of use of the Leased Premises, in which event the provisions
of the prior sentence shall govern. Tenant shall also comply with all covenants,
conditions and restrictions of record as of the execution of this Lease
applicable to Tenant's use or occupancy of the Property.
6.3 Compliance with Americans with Disabilities Act. Without in any way
limiting the generality of the obligations set forth in Section 6.2 above,
Tenant also shall comply at Tenant's sole cost and expense with all applicable
provisions of the Americans with Disabilities Act ("ADA") and all of the
regulations promulgated thereunder as they apply to Tenant's particular manner
of use of the Leased Premises and any unique and specific operation of Tenant's
business therein including, without limitation, its hiring of employees (as
opposed to office use generally) and shall be fully responsible for any
modifications or alterations to the Leased Premises or the common areas of the
Property necessary to meet requirements of the ADA which have become applicable
to the Leased Premises or the Property as a result of Tenant's particular manner
of use of the Leased Premises. Landlord shall be responsible for compliance of
the Building, the Property and the Leased Premises with all provisions of the
ADA, except to the extent that such duty is triggered by Tenant's particular
manner of use of the Leased Premises, in which event the provisions of the prior
sentence shall govern.
6.4 No Nuisance or Other Harmful or Disruptive Activity. Tenant shall not
perform any acts or carry on any business or practices which may (a) injure or
overburden any part of the Leased Premises, the Property or common areas,
including, without limitation, any of the electrical or mechanical systems of
the Property, (b) violate any certificate of occupancy affecting the same, (c)
constitute a public or private nuisance or a menace to other tenants on the
Property, (d) produce undue noise, (e) create obnoxious fumes or other odors or
(f) otherwise cause unreasonable interference with other tenants or occupants of
the Property. Further, Tenant agrees not to use the Leased Premises for any
purpose whatsoever which may injure the reputation of the Leased Premises or the
Property.
6.5 Compliance with Fire Insurance Requirements. Tenant shall not permit
any use of the Leased Premises which will make voidable any insurance on the
Property or on the contents of the Building or which shall be contrary to any
law or regulation from time to time established by the New England Fire
Insurance Rating Association or any similar body succeeding to its powers.
Tenant shall on demand reimburse Landlord, and all other tenants to the extent
of insurance carried directly by them, all extra insurance premiums caused in
any way by Tenant's use of the Leased Premises, including, without limitation,
the volume of electricity and electrical equipment used by Tenant. Landlord
represents that the use of the Leased Premises for the Permitted Use will not
per se result in any increase to insurance premiums.
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6.6 Hazardous Materials. Tenant shall not permit the emission, release,
threat of release or other escape of any Hazardous Materials (defined below) so
as to adversely affect in any manner, even temporarily, any element or part of
the Leased Premises or the Property. Tenant shall not use, generate, store or
dispose of Hazardous Materials in or about the Leased Premises (except for
ordinary office and cleaning supplies which are stored, used and disposed of in
compliance with all applicable Environmental Laws (defined below)), or dump,
flush or in any way introduce Hazardous Materials (other than common cleaning
products which are being disposed of in compliance with all applicable
Environmental Laws) into sewage or other waste disposal systems serving the
Leased Premises (nor shall Tenant permit its employees, agents or contractors to
take any of the foregoing actions).
Tenant will indemnify, defend and hold Landlord harmless from and against
all claims, loss, costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements, diminution in the value of the Leased
Premises or the Property, costs incurred in connection with any investigation of
site conditions or any clean-up or remedial work required by any federal, state
or local governmental agency) to the extent incurred as a result of any
contamination of the Leased Premises or any other portion of the Property with,
or any release or threat of release of, Hazardous Materials by Tenant or
Tenant's contractors, licensees, invitees, agents, servants or employees
(collectively, the "Tenant Group"). Without limiting the foregoing, if the
presence of any Hazardous Materials in, on or under the Leased Premises or the
Property caused or permitted by any of the Tenant Group results in any
contamination of the Leased Premises or the Property or any other property,
Tenant shall promptly take all actions at its sole expense as are necessary to
return the Leased Premises, the Property and such other property to the
condition existing prior to the introduction of any such Hazardous Material by
such member(s) of the Tenant Group, provided that Landlord's approval of such
action shall first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on Landlord, the Leased Premises or the Property.
The obligations of Tenant and Landlord in this Section shall survive the
expiration or earlier termination of this Lease and any transfer of title to the
Leased Premises, whether by sale, foreclosure, deed in lieu of foreclosure or
otherwise.
For purposes of this Lease, "Hazardous Materials" means, collectively, any
animal wastes, medical waste, blood, biohazardous materials, hazardous waste,
hazardous substances, pollutants or contaminants, petroleum or petroleum
products, radioactive materials, asbestos in any form or condition, or any
pollutant or contaminant or hazardous, dangerous or toxic chemicals, materials
or substances within the meaning of any applicable federal, state or local law,
regulation, ordinance or requirement relating to or imposing liability or
standards of conduct concerning any such substances or materials on account of
their biological, chemical, radioactive, hazardous or toxic nature, all as now
in effect or hereafter from time to time enacted or amended. For purposes of
this Lease, "Environmental Laws" means all laws, rules, orders and regulations
of federal, state, county, and municipal authorities, concerning any Hazardous
Materials whatsoever.
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Landlord warrants and represents that, except as set forth in that certain
Site Assessment report dated July 21, 1997, prepared by Loitherstein Environment
& Engineering, to the best of Landlord's knowledge, the Building and the
Property are free from asbestos and other Hazardous Materials as of the date of
this Lease.
ARTICLE VII
MAINTENANCE; REPAIRS
7.1 Tenant's Obligations. Tenant shall, at Tenant's sole cost and expense,
(a) maintain and keep in good repair, good working order and free of litter and
refuse the interior of the Leased Premises and, except for Landlord's
obligations under Section 7.2 of this Lease, make any and all repairs and
replacements thereto as and when required, ordinary or extraordinary,
foreseeable or unforeseeable, including, but not limited to, the maintenance,
repair and replacement of any and all furnishings, fixtures and leasehold
improvements within the Leased Premises, exterior entrances, windows and plate
glass within or part of the wall delimiting the Leased Premises and any
electrical wiring, lighting fixtures, heating or plumbing fixtures, pipes, air
conditioning or heating components contained within and exclusively serving the
Leased Premises; and (b) keep unclogged and in good repair all drains, traps and
sewer pipes serving the Leased Premises and maintain and leave the same in good
working order. At Landlord's option, ordinary maintenance of any of the systems
described above shall be undertaken by Landlord in which event, promptly upon
demand by Landlord, Tenant shall reimburse Landlord (such reimbursement to
constitute Additional Rent hereunder) for all costs and expenses incurred by
Landlord in connection with such maintenance undertaken.
7.2 Landlord's Obligations. Landlord agrees to make all necessary repairs,
replacements, additions and removals, interior and exterior, structural and
nonstructural to maintain the exterior and structural portions of the Building
and the Property (including foundations, floors, structural supports, roofs,
roof structures, canopies (excluding Tenant's signage thereon), walls,
driveways, sidewalks and parking facilities), the building systems including
heating, ventilation, air conditioning, electrical, mechanical and plumbing
systems (except for portions of those systems exclusively serving the Leased
Premises and located within the Leased Premises), the Common Facilities and
windows and plate glass (to the extent maintenance is required due to product
failure or storm related damage) of the Building so as to keep all such items in
good operating condition, reasonable wear and tear, damage by fire and other
casualty only excepted. Further, if any such maintenance is required because of
the negligence or intentional misconduct of Tenant or those for whose conduct
Tenant is legally responsible and such maintenance is not covered by insurance,
then Tenant shall be responsible for such maintenance, and if such maintenance
is covered by insurance, then Tenant shall be fully liable and responsible to
Landlord for the deductible amount of any such insurance. Landlord agrees to
maintain the Common Facilities of the Building and the landscaped and paved
areas of the Property in the same condition as they may be as of the
Commencement Date,
7.3 Removal of Snow, Ice and Debris. Removal of snow, ice and debris from
the Common Facilities including sidewalks, driveways and parking areas of the
Property shall be the responsibility of Landlord. Snow, ice and debris shall be
removed as soon as reasonably practicable.
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7.4 Tenant's Failure to Make Repairs. If repairs are required to be made
by Tenant pursuant to the terms hereof, Landlord may demand that Tenant make the
same forthwith, and if Tenant refuses or neglects to commence such repairs and
complete the same with reasonable dispatch, after such demand, Landlord may (but
shall not be required to do so) make or cause such repairs to be made and such
repairs by Landlord shall be governed by the provisions of Sections 14.3 and
14.4 below.
ARTICLE VIII
ALTERATIONS
8.1 Alterations or Additions by Tenant. Tenant shall not make any
alterations (structural or otherwise), improvements, or additions to the Leased
Premises, without the prior written consent of the Landlord, other than the
Landlord Work as set forth in Section 17.25 and Exhibit LW below. All such
allowed alterations, improvements or additions other than the Landlord Work
shall be at Tenant's sole cost and expense. Tenant shall not permit any
mechanics' liens, or similar liens, to remain upon the Leased Premises for labor
and material furnished to Tenant or claimed to have been furnished to Tenant in
connection with work of any character performed or claimed to have been
performed at the direction of Tenant and shall cause any such lien to be
released of record forthwith without cost to Landlord. Any alterations or
improvements made by Tenant shall, at the option of Landlord (which option shall
be exercised by Landlord, in writing, within ten (10) days after Tenant's
written request to Landlord), either become the property of the Landlord at the
expiration or earlier termination of the Term or be removed by Tenant at
Tenant's sole cost and expense at the expiration or earlier termination of the
Term. All alterations or additions made by Tenant shall be performed in a good
and workmanlike manner and in compliance with all the applicable laws,
ordinances, orders, rules, regulations and requirements applicable thereto,
shall be carried out in conformance with plans and specifications approved by
Landlord, and shall be performed only by contractors or mechanics approved by
Landlord, which approval shall not be unreasonably withheld. All such
contractors and mechanics shall carry liability insurance (which shall name
Landlord and Tenant as an additional insured) and workmen's compensation
insurance reasonably satisfactory to Landlord, and Landlord shall be presented
with certificates of same prior to the commencement of any work. Notwithstanding
any contrary provision of this Lease, Tenant shall have the right, without any
consent or approval of Landlord, to make non-structural alterations, or
improvements which (i) do not cost more than $10,000 in any single instance nor
more than $50,000 in the aggregate for the entire Term, and (ii) do not have a
material adverse effect on the Common Facilities or the leased premises of any
other tenants; provided that, Tenant provides its plans and specifications to
Landlord prior to commencing such alterations or improvements and the work
relating to such alterations or improvements is performed in compliance with all
the other requirements set forth in this Section 8.1 (excluding the requirement
of obtaining Landlord's consent. Tenant agrees to reimburse Landlord for its
reasonable out-of-pocket expenses for the review of all proposed alterations,
improvements and additions and for supervision of the same other than the
Landlord Work. Neither approval of the plans and specifications nor supervision
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of the Tenant's work by Landlord shall constitute a representation or warranty
by Landlord as to the accuracy, adequacy, sufficiency or propriety of such plans
and specifications or the quality of workmanship or the compliance of such
alteration with applicable law.
8.2 Alterations or Additions by Landlord. Landlord hereby reserves the
right at any time to enter upon the Property or the Leased Premises and make
alterations or additions thereto, or to any or all of the common facilities,
improvements or personalty comprising a part thereof, provided such alterations
or additions do not unreasonably interfere with Tenant's use of the Leased
Premises. Landlord shall attempt to minimize any interference with Tenant's use
of the Leased Premises caused by such work.
ARTICLE IX
ASSIGNMENT; SUBLEASING
9.1 Landlord's Consent. Tenant shall not, without the prior written
consent of Landlord: (i) assign, convey, mortgage or otherwise transfer this
Lease or any interest hereunder, or sublease the Leased Premises, or any part
thereof, whether voluntarily or by operation of law; or (ii) permit the use of
the Leased Premises by any person other than Tenant and its employees and
contractors; or (iii) sell or transfer greater than twenty-five percent (25%),
in the aggregate, of the ownership interest of Tenant. Any such assignment,
sublease, transfer or use described in the preceding sentence (a "Transfer")
occurring without the prior written consent of Landlord shall be void and of no
effect. Landlord's consent to any Transfer shall not constitute a waiver of
Landlord's right to withhold its consent to any future Transfer. Landlord's
consent to any Transfer or acceptance of Base Rent or Additional Rent from any
party other than Tenant shall not release Tenant from any covenant or obligation
under this Lease. Landlord may require as a condition to its consent to any
assignment of this Lease that the assignee execute an instrument in which such
assignee assumes the obligations of Tenant hereunder. If Landlord consents to
any Transfer, Tenant shall pay to Landlord fifty percent (50%) of the net amount
of all rent and other consideration received by Tenant in excess of the Base
Rent, Electricity Rent and Additional Rent, paid by Tenant for the portion of
the Leased Premises so transferred after deducting all reasonable costs incurred
by Tenant in connection with such Transfer for legal and brokerage fees and the
cost of any leasehold improvements or other allowances actually paid which are
made in connection with such Transfer. In addition, Tenant shall pay to Landlord
any reasonable attorneys' fees and expenses incurred by Landlord in connection
with any proposed Transfer, whether or not Landlord consents to such Transfer.
9.2 Standards for Consent. If Tenant desires the consent of Landlord to a
Transfer, Tenant shall submit to Landlord, at least thirty (30) days prior to
the proposed effective date of the Transfer, a written notice which includes
such information as Landlord may reasonably require about the proposed Transfer
and the transferee. Landlord shall not unreasonably withhold its consent to any
proposed Transfers. Landlord shall not be deemed to have unreasonably withheld
its consent if, in the judgment of Landlord: (i) the transferee is of a
character or
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engaged in a business which is not in keeping with the standards or criteria
used by Landlord in leasing the Building; (ii) the financial condition of the
transferee is such that it may not be able to perform its obligations in
connection with this Lease; (iii) the purpose for which the transferee intends
to use the Leased Premises or portion thereof is in violation of the terms of
this Lease or the lease of any other tenant in the Building; (iv) the transferee
is a tenant of the Building; (v) the transferee is a business competitor of
Landlord or any affiliate of Landlord; or (vi) any other basis which Landlord
reasonably deems appropriate. If Landlord wrongfully withholds its consent to
any Transfer, Tenant's sole and exclusive remedy therefor shall be to seek
specific performance of Landlord's obligation to consent to such Transfer. With
respect to sub-section (iii) above, Landlord shall notify Tenant, upon Tenant's
written request, whether the transfer of Tenant's interest under this Lease to
any proposed Transferee, would violate the terms of the lease of any other
tenant in the Building; provided that, Landlord has received a reasonable amount
of information relating to such transferee's intended use of the Leased
Premises.
9.3 Affiliated Transfers. Notwithstanding any provision of Section 9.1 or
9.2 to the contrary, Tenant shall have the right to assign or sublet all or any
portion of the Leased Premises without Landlord's prior consent or any
obligation to pay such excess, to a business organization controlling,
controlled by or under common control with Tenant or in connection with the
merger or consolidation of or into Tenant or the sale of all or substantially
all of Tenant's assets provided such successor entity expressly assumes Tenant's
obligations under this Lease and Tenant remains jointly and severally liable
with such successor for the failure to perform Tenant's obligations under the
Lease.
ARTICLE X
SUBORDINATION; ESTOPPEL CERTIFICATES
10.1 Subordination. If the Leased Premises are, as of the date hereof,
subject to any mortgage or trust deed, Landlord shall provide Tenant with an
agreement executed by such lienholder which shall assure Tenant's right to
possession of the Leased Premises and other rights granted under this Lease
substantially in accordance with this Lease's terms and conditions. Such
agreement shall be reasonably acceptable to Landlord and such lienholder and
shall be recordable with the applicable registry or office. Tenant agrees to
subordinate this Lease to any future mortgage, or trust deeds, provided such
lienholder shall, by such a recordable agreement, assure Tenant's right to
possession of the Leased Premises and other rights granted under this Lease
substantially in accordance with this Lease's terms and conditions.
Upon such attornment, this Lease shall continue in full force and effect
as a direct lease between the Successor Landlord (as defined below) and Tenant
upon all of the terms, conditions and covenants as are set forth in this Lease,
except that the Successor Landlord (unless formerly Landlord under this Lease or
its nominee or designee) shall not be: (i) liable in any way to Tenant for any
act or omission, neglect or default on the part of Landlord under this Lease;
(ii) responsible for any monies owing by or on deposit with Landlord to the
credit of Tenant;
15
(iii) subject to any counterclaim or setoff which theretofore accrued to Tenant
against Landlord; (iv) bound by any modification of this Lease subsequent to
such Superior Lease or Superior Mortgage (each as defined below) or by any
previous prepayment of Base Rent or Additional Rent paid more than one (1) month
before the due date thereof, which was not approved in writing by the Superior
Mortgagee (as defined below); (v) liable to Tenant beyond the Successor
Landlord's interest in the Property and the rents, income, receipts, revenues,
issues and profits issuing from such Property; (vi) responsible for the
performance of any work to be done by Landlord under this Lease to render the
Leased Premises ready for occupancy by Tenant; or (vii) required to remove any
person occupying the Leased Premises or any part thereof, except if such person
claims by, through or under the Successor Landlord. Any mortgage to which this
Lease is, at the time referred to, subject and subordinate, is herein called the
"Superior Mortgage" and the holder of a Superior Mortgage is herein called the
"Superior Mortgagee." Any Superior Mortgagee or the nominee or designee of any
Superior Mortgagee or lessor under any Superior Lease, and their respective
successors or assigns, including the purchaser at a foreclosure sale, who
succeeds to the rights of Landlord under this Lease shall be a "Successor
Landlord."
10.2 Estoppel Certificates. Tenant shall, within fifteen (15) business
days after request from Landlord, deliver to any mortgagee, proposed mortgagee,
proposed purchaser of all or any part of the Property, or any other person or
entity designated by Landlord, in recordable form, a certificate certifying any
and all information reasonably requested, including, but not limited to, the
following: (a) the date of this Lease, the date when the Term of this Lease
commenced, the date of the expiration of the Term, and the date when Base Rent
and Additional Rent commenced to accrue hereunder; (b) to the extent true, that
this Lease is unmodified, not amended, and in full force and effect; or, if
there have been any amendments or modifications, that the Lease is in full force
and effect as so amended or modified and stating the amendments or modifications
and the dates thereof; (c) whether or not there are then existing any setoffs or
defenses against the enforcement of any of the terms and/or conditions of this
Lease and any amendments or modifications hereof on the part of Tenant to be
performed, and, if so, specifying the same; and (d) the dates, if any, to which
the Base Rent, the Additional Rent and other sums on Tenant's part to be paid
hereunder have been paid and/or paid in advance; and (e) to the extent true,
Tenant has accepted the Leased Premises and any and all improvements in the
condition then existing as being complete and in accordance with Tenant's
agreements as to the same and in accordance with the Lease, and that Tenant
waives any and all claims or causes of action as to the condition of the Leased
Premises including the improvements thereto (to the extent that the work for
such improvements has been completed) as against Landlord and any new owner of
the Property or assignee, or specifying in detail any respect in which the
Leased Premises or any improvements have not been completed in accordance with
the Lease, if that is the case (setting forth any such deficiencies in
reasonable detail) or any such claims or causes of action that have not been
waived. If Landlord shall submit to Tenant a proposed instrument containing any
of the foregoing information, then, if Tenant shall fail to respond to
Landlord's request for confirmation of the information set forth therein within
fifteen (15) business days after Landlord's request, any information contained
in such proposed instrument shall be deemed to be true, and Tenant shall be
deemed to have waived any rights accruing by reason of any inaccuracy in such
proposed instrument. Further, Tenant's failure or refusal to execute and
16
deliver such certificate within such fifteen (15) business day period shall
constitute an Event of Default under this Lease.
ARTICLE XI
INDEMNIFICATION AND WAIVER
11.1 Damage to Property. Tenant shall save Landlord harmless from all loss
and damage to property occurring within the Leased Premises occasioned by the
use or escape of water or by the bursting of pipes, as well as from any claim or
damage resulting from neglect in not removing snow and ice from the roof of the
Building, or by any nuisance made or suffered on the Leased Premises. Tenant
also agrees to save Landlord harmless from any claim or damage to Tenant's
property or that of its employees, invitees or agents resulting from neglect in
not removing snow and ice from the sidewalks on the Property, unless such loss
is caused by the intentional misconduct or gross negligence of Landlord.
Landlord shall not be liable for any loss or damage arising from any latent
defect in the Leased Premises or in the Building except as may be otherwise
expressly and specifically provided herein. All personal property or
improvements of Tenant at or about the Leased Premises shall be installed, used,
or enjoyed at the sole risk of Tenant, and Tenant shall defend, indemnify and
hold Landlord harmless from and against any and all claims and/or causes of
action pertaining to or arising out of damage to the same, including but not
limited to subrogation claims by Tenant's insurance carrier, but excepting such
claims and/or causes of action resulting from the actual negligence and/or
willful misconduct of Landlord.
11.2 Indemnity Against Liability. Tenant shall also indemnify and hold
Landlord harmless, to the fullest extent permitted by law, from and against any
and all claims, actions, loss, damage, liability and expense (including, without
limitation, reasonable attorney's fees and related legal costs incurred by
Landlord) in connection with loss of life, personal injury and/or damage to
property arising out of or resulting from (i) any occurrence in, upon or at the
Leased Premises or (ii) the occupancy or use of the Leased Premises, the
Building or the Property or any part thereof, or anywhere on or about the
Property if caused wholly or in part by any act, negligence or failure to
perform the obligations imposed by this Lease or any breach thereof, or omission
of Tenant, its officers, agents, employees, subtenants, licensees,
concessionaires, invitees, visitors or others occupying space in the Leased
Premises; provided, however, that Tenant shall not be required to indemnify
Landlord where such claim, action, loss, damage, liability or expense arises out
of the negligence of Landlord, its agents, contractors, or employees. If
Landlord shall be threatened with or made a party to any litigation commenced by
or against Tenant (except in the event that such litigation is commenced by
Landlord against Tenant or by Tenant against Landlord and Tenant prevails in
such litigation), or with respect to any matter described above, then Tenant
shall protect and hold Landlord harmless and indemnified and shall defend
Landlord with counsel reasonably acceptable to Landlord, or, at Landlord's
option, shall advance all costs, expenses and reasonable attorney's fees
incurred or paid by Landlord in connection with such litigation.
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Landlord shall indemnify and hold Tenant harmless, to the fullest extent
permitted by law, from and against any and all claims, actions, loss, damage,
liability and expense (including, without limitation, reasonable attorney's fees
and related legal costs incurred by Tenant) in connection with loss of life,
personal injury and/or damage to property arising out of or resulting from any
occurrence in, upon or at the Property or any part thereof, if caused wholly or
in part by the negligence of Landlord, its agents, employees or contractors.
11.3 Waiver of Claims. Tenant releases Landlord and its agents and
employees from, and waives all claims for, damage or injury to person or
property and loss of business sustained by Tenant and resulting from the
Building or the Leased Premises or any part thereof or any equipment therein
becoming in disrepair (other than from Landlord's negligence in managing and
operating the Property), or resulting from any accident, or from any
intentionally wrongful conduct by anyone other than Landlord, in or about the
Building or the Leased Premises or occurring anywhere on or about the Property.
This paragraph shall apply particularly, but not exclusively, to flooding,
damage caused by Building equipment and apparatus, water, snow, ice, frost,
steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise
or vibration or the bursting or leaking of pipes, plumbing fixtures or sprinkler
devices. Without limiting the generality of the foregoing, Tenant waives all
claims and rights of recovery against Landlord and its agents and employees for
any loss or damage to any property of Tenant, whether or not such loss or damage
is due to the fault or negligence of Landlord or its agents or employees, and
regardless of the amount of insurance proceeds collected or collectible under
insurance policies in effect.
ARTICLE XII
INSURANCE
12.1 Insurance to he Maintained by Tenant. At its own cost and expense,
Tenant shall obtain and maintain throughout the Term of this Lease the following
insurance coverage: (a) comprehensive general public liability insurance
covering claims for injury to persons or property occurring in or about the
Leased Premises or the Property, or arising out of ownership, maintenance, use,
or occupancy thereof by the Tenant, in the amount of Two Million Dollars
($2,000,000.00), with property damage insurance with limits of Five Hundred
Thousand Dollars ($500,000.00); (b) all risk hazard insurance including and not
limited to fire, extended coverage, vandalism and malicious mischief insurance,
covering any and all of the Tenant's equipment, trade fixtures, tools,
inventory, and personal property in, at, or about the Leased Premises, in the
full amount of the replacement cost of any and all of the same; (c) Worker's
Compensation and all other insurance coverages for employees, agents, servants,
and others at or about the Leased Premises in compliance with and as required by
any and all applicable governmental regulations and statutes; and (d) if any of
the walls delimiting the Leased Premises contain plate glass, plate glass
insurance for the benefit of Landlord in the amount of replacement cost thereof.
Landlord may from time to time reasonably require Tenant to maintain other
insurance coverage or may increase the amount of the foregoing insurance to be
maintained by Tenant so as to provide insurance coverage in forms and amounts
consistent with the extent of coverage maintained by similar tenants in similar
buildings located in the same geographic market as the Leased Premises.
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Tenant shall obtain an endorsement to such insurance waiving rights of
subrogation against Landlord.
12.2 Other Insurance Requirements. All such insurance procured by Tenant
as provided herein shall be in responsible companies qualified to do business in
Massachusetts and in good standing therein and having a Best's rating of A-,
naming Landlord and Landlord's mortgagee; as well as Tenant against injury to
persons or damage to property as herein provided. Tenant shall deposit with
Landlord certificates for such insurance at or prior to the Commencement Date,
and thereafter within thirty (30) days prior to the expiration of any such
policies. All such insurance certificates shall provide that such policies shall
not be canceled or modified without at least ten (10) days prior written notice
to each insured named therein.
12.3 Waiver of Subrogation. Insofar as, and to the extent that, the
following provision may be effective without invalidating or making it
impossible to secure insurance coverage obtainable from responsible insurance
companies doing business in the locality in which the Property is located (even
though an extra premium may result therefrom), Landlord and Tenant mutually
agree that, with respect to any hazard, the loss from which is covered by
insurance then being carried by them, respectively, the party carrying such
insurance and suffering such loss releases the other of and from any and all
claims with respect to such loss to the extent of the insurance proceeds paid
with respect thereto; and they further mutually agree that their respective
insurance companies shall have no right of subrogation against the other on
account thereof.
12.4 Insurance to be Maintained by Landlord. Landlord shall maintain (i)
property and casualty insurance with respect to the Building and other
improvements constituting the Property and (ii) liability insurance, in each
case, in such amounts as are required by the first mortgage lender for the
Property, or in the absence of a first mortgage lender, in amounts which are
comparable to those maintained by other reasonably prudent property owners of
facilities of the type and character of the Property, but not less than full
replacement cost thereof as reasonably determined by Landlord.
ARTICLE XIII
FIRE; CASUALTY; EMINENT DOMAIN
13.1 Damage by Casualty. Should a substantial portion of the Leased
Premises, or of the Building or Property, be substantially damaged by fire or
other casualty, or in the event that a fire or other casualty renders the Leased
Premises or the access thereto substantially unsuitable for its intended use,
Landlord may elect to terminate this Lease. If less than a substantial portion
of the Leased Premises, or of the Building, or of the Property is damaged by
fire or other casualty, then (subject to the availability of insurance proceeds
from any mortgagee of the Property) Landlord shall be obligated to repair,
reconstruct or replace the damaged portions of the Leased Premises, Building or
Property as nearly as possible to their former condition. When such fire or
casualty renders the Leased Premises substantially unsuitable for its intended
use, a just and proportionate abatement of rent shall be made until such time as
Tenant is able
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to resume full utilization of Premises or this Lease is terminated. If any
casualty results in the total suspension of business in the Leased Premises as a
result of damage or any adverse effect on the Leased Premises, Tenant shall have
the option of suspending the running of the Term from the date of the casualty
to the earlier of the date business is resumed or sixty (60) days following the
completion of restoration; such option to be exercised by written notice within
thirty (30) days after the date of the casualty. Further, within thirty (30)
days after any substantial fire or other casualty, Landlord shall give written
notice to Tenant with respect to whether or not Landlord will restore the Leased
Premises, except for the Tenant Improvements to the Leased Premises. Tenant may
elect to terminate this Lease if Landlord notifies Tenant that Landlord has
elected not to restore the Leased Premises, excluding the Tenant Improvements to
the Leased Premises. Within thirty (30) days after the occurrence of the
casualty, Landlord shall deliver to Tenant a certificate of Landlord's architect
or engineer stating its reasonable opinion of the period of time after the date
of the damage that will be necessary to perform the necessary repair or
restoration work (the Estimated Time to Repair"). If (i) the Estimated Time to
Repair exceeds one hundred eighty (180) days from the date of the damage, or
(ii) there shall be substantial damage to the Leased Premises during the last
twelve (12) months of the Term, Tenant shall have the right to terminate this
Lease by giving to Landlord written notice of its election to terminate not
later than thirty (30) days after the receipt of the notice of Estimated Time to
Repair, or, if Landlord shall fail to give said certificate, not later than
ninety (90) days after the occurrence of the damage. If Landlord has not
restored the Leased Premises to the extent required under this Section 13.1
within one hundred eighty (180) days (or, if longer, the Estimated Time to
Repair) after the date of such damage or destruction, then Tenant may elect to
terminate this Lease by giving written notice of such election to Landlord at
any time after the end of such period and before the substantial completion of
such restoration; provided, however, that such termination shall be null and
void and of no force and effect if Landlord substantially completes such
restoration within thirty (30) days after Tenant's notice of termination.
Tenant shall be responsible for the restoration of the Tenant Improvements to
the Leased Premises. Landlord will seek to have the first mortgagee of the
Property, if any, provide for application of hazard insurance loss proceeds to
the repair or reconstruction of the Leased Premises upon any hazard loss.
Subject to the mortgagee (if any) of the Property making the hazard loss
insurance proceeds available for such restoration and to Landlord's receipt of
such proceeds for that purpose, if Landlord elects to repair, reconstruct, or
cause to be repaired or reconstructed, such damage or destruction, Landlord
shall not be required to expend, in connection with such repair or
reconstruction, any amount exceeding the amount of casualty insurance proceeds
actually received by Landlord plus the "deductible" payable under the Landlord's
insurance policy covering the Building. Notwithstanding the foregoing, in the
event such mortgagee shall not make the insurance loss proceeds available for
repair or restoration, Landlord shall not be required to repair or reconstruct
the Leased Premises and shall notify Tenant within thirty (30) days next
following such hazard loss, of its election in this respect and thereupon,
Tenant shall have the termination rights described above in this Section. For
purposes of this Section 13.1, damage shall be deemed substantial if (i) fifty
percent (50%) or more of the Leased Premises, Building or Property is damaged or
destroyed, or (ii) the time needed for Landlord to repair or restore the damage
and put the Leased Premises, Building and/or Property
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in proper condition for use or occupancy is reasonably estimated by Landlord to
require more than one hundred eighty (180) days.
13.2 Tenant's Option to Terminate in the Event of a Taking. If the
Property shall be taken in its entirety under any condemnation or eminent domain
proceedings (each such occurrence being hereinafter referred to as a "Taking")
by any governmental authority (the "Taking Authority") during the Term hereof,
or in the event twenty-five percent (25%) or more of the Leased Premises, the
access thereto or the parking, is taken in any such proceedings and the
remaining portion shall not be suitable or adequate (in the reasonable opinion
of Tenant exercised in good faith) for the conduct of Tenant's business and
Tenant notifies Landlord in writing of such determination within thirty (30)
days next following the notice of such taking by the Taking Authority or the
date upon which Tenant receives written notice that title has vested in the
Taking Authority, whichever is first to occur, then in any such event this Lease
and the Term hereof shall terminate thirty (30) days after such written notice
from Tenant to Landlord, and Tenant shall be liable for the payment of Base
Rent, Additional Rent and all other charges due from Tenant hereunder, and
performance of the other terms and conditions of this Lease on Tenant's part to
be performed only up to date of such termination or such earlier date, if any,
on which Tenant is deprived of possession of the taken property, and any Base
Rent and Additional Rent paid in advance for periods following such date shall
be apportioned and promptly refunded to Tenant.
13.3 Landlord's Option to Terminate in the Event of a Taking. If less than
the entire Property, or less than twenty-five (25%) percent of the Leased
Premises, shall be acquired or taken by condemnation or eminent domain as
aforesaid, and the mortgagee of the Property shall not make the proceeds of any
awards or damages payable as to the Taking available for restoration and repair
of the balance of the Building, or Landlord shall determine in its reasonable
discretion that the restoration and repair of the balance of the Building shall
be impracticable; or in the event the Taking occurs within the last eighteen
(18) months of the initial Term (or of an Option Term, if any), Landlord shall
be entitled to terminate this Lease by written notice to Tenant without
liability (other than as expressly provided in Section 13.4) by reason of such
Taking. If Landlord does not so terminate this Lease, this Lease shall continue
and Landlord shall rebuild and restore the Leased Premises as nearly as possible
to the condition existing next preceding such Taking, with due allowance for the
portion so taken; further, Tenant shall promptly restore or repair any
improvements made by it in the Leased Premises to the extent proceeds from such
awards are made available to Tenant for such purpose and this Lease shall be and
remain in full force and effect and be unaffected by, the Taking, except that
from the date possession of the taken portion of the Leased Premises is acquired
by the Taking Authority, the Base Rent payable under this Lease shall be
diminished by a percentage equal to the percentage of the Leased Premises so
taken and the Tenant's Pro Rata Share shall be recalculated. The restoration or
repair work to be done by Tenant shall be done subject to any and all terms and
conditions elsewhere set forth in this Lease governing alterations or work on
Tenant's part to be performed. Upon written request from Tenant (which written
request shall specifically reference this Section 13.3 and the consequence of
Landlord's failure to respond), Landlord shall notify Tenant of its
determination called for in this Section within one hundred twenty (120) days
after
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the date of the Taking. In the event that Landlord shall fail to respond to such
request and notify Tenant of its determination within such one hundred twenty
(120) day period, Tenant shall have the right to terminate this Lease without
cost or liability therefor as of the date of the Taking.
13.4 Miscellaneous Provisions Regarding Casualty or Taking.
13.4.1 In the event this Lease is terminated or terminates by reason
of a Taking or a Casualty, the provisions of the Lease applicable upon
expiration of the Lease shall govern the parties.
13.4.2 Landlord will seek to have any mortgagee of the Building or
Property provide for application of the proceeds of any Taking awards to
restoration, repair, and reconstruction of the portion of such Property
remaining after the Taking. Notwithstanding the amount of land, building, or
improvements taken by condemnation or eminent domain or the termination or
continuance of this Lease with respect thereto, Tenant shall not participate or
share in any recovery, award, or damages payable or paid as to such Taking, nor
have or assert any right, claim, or cause of action against Landlord, the fee
owner, or mortgagee of the Property or, except as expressly provided in Section
13.4.3 below, the Taking Authority whether for the loss of, or diminution in
value of, the unexpired Term of this Lease, or as to the Taking of any such
land, building, and/or improvements or otherwise; and Tenant for itself and its
successors and assigns hereby waives, surrenders, and releases to Landlord any
and all claims or rights to claim or receive all or any portion of any and all
recovery, awards, and/or damages as to such Taking.
13.4.3 Tenant may recover from the Taking Authority, but not from
Landlord, any compensation as may be recoverable by Tenant for the unamortized
value of the Tenant Improvements made by Tenant (but only to the extent Tenant
has paid the cost of installing or constructing such Tenant Improvements), any
damage to Tenant's portable fixtures and equipment, or on account of any
expenses which it shall incur in relocation expenses, but in no event shall any
such claims or recoveries be asserted if the same would diminish in any way the
award recoverable by Landlord for the Land, Building and any Tenant Improvements
paid for by Landlord.
ARTICLE XIV
DEFAULT; REMEDIES; BANKRUPTCY
14.1 Events of Default. Each of the following shall be an event of default
("Event of Default") under this Lease:
14.1.1 Tenant shall default in the payment of any installment of
Base Rent, Additional Rent or other sum herein specified to be paid by Tenant
and such default shall continue for five (5) business days after written notice
thereof; provided, however, that Landlord shall not be required to give more
than two (2) notices during any consecutive twelve (12) month
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period with regard to defaults in the payment of installments of Base Rent,
Additional Rent or any other sums payable by Tenant under this Lease, and in the
event that Landlord has already given two (2) such notices during any
consecutive twelve (12) month period, any subsequent failure of Tenant during
such twelve (12) month period to make any such payment shall immediately
constitute an Event of Default even though no notice has been given;
14.1.2 Tenant shall default in the observance or performance of any
other of Tenant's covenants, agreements, or obligations hereunder and such
default shall not be cured within thirty (30) days after written notice thereof,
or if such default is of a nature that it cannot be reasonably cured within such
thirty (30) day period, Tenant shall not have commenced to cure such default
within such thirty (30) day period and diligently proceed to completion of said
cure within one hundred twenty (120) days after written notice thereof, but only
if such extended period beyond thirty (30) days without a completed cure will
not have a material adverse effect on the value of the Property or the Leased
Premises or expose Landlord to any liability; further, Landlord shall not be
required to give more than two (2) notices during any consecutive eighteen (18)
month period with regard to Tenant's failure to perform its obligations under a
particular Section of this Lease (a "Previously Defaulted Provision") and in the
event that Landlord has already given two (2) such notices during any
consecutive eighteen (18) month period, any subsequent failure of Tenant during
such eighteen (18) month period to fully and punctually observe such Previously
Defaulted Provision shall immediately constitute an Event of Default even though
no notice has been given; or
14.1.3 Tenant's leasehold interest in the Leased Premises shall be
taken on execution, levied upon or attached by other process of law directed
against Tenant;
14.1.4 Tenant or any Guarantor shall dissolve, shall become
insolvent, shall make a transfer in fraud of creditors, shall make an assignment
for the benefit of creditors, shall file a voluntary petition in bankruptcy,
shall be adjudicated bankrupt or insolvent, shall file any petition or answer
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under Title 11 of the United States
Bankruptcy Code relating to Bankruptcy, as amended (the "Bankruptcy Code") or
under any present or future Federal, State or other statute, law or regulation
for the relief of debtors, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or Guarantor or of
all or any substantial part of their respective assets, or shall admit in
writing its inability to pay its debts generally as they become due (Tenant and
Guarantor hereby acknowledging that this Lease is a lease of nonresidential real
property and therefore agreeing that Tenant, as debtor in possession, or the
trustee for Tenant in any proceeding under the Bankruptcy Code, shall not seek
or request any extension of time to assume or reject this Lease or to perform
any obligations of this Lease which arise from or after the order of relief); or
14.1.5 A petition shall be filed against Tenant or Guarantor in
bankruptcy under the Bankruptcy Code or under any other law seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future Federal, State or
other statute, law or regulation and shall remain undismissed or unstayed for an
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aggregate of sixty (60) days (whether or not consecutive), or if any debtor in
possession (whether or not Tenant or Guarantor) trustee, receiver or liquidator
of Tenant or Guarantor or of all or any substantial part of their respective
assets shall be appointed without the consent or acquiescence of Tenant or
Guarantor, as the case may be, and such appointment shall remain unvacated or
unstayed for an aggregate of sixty (60) days (whether or not consecutive).
14.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
Landlord shall have the following rights and remedies:
14.2.1 Landlord shall have the right at its election, at any time
thereafter, to give Tenant written notice of Landlord's election to terminate
this Lease on a date specified in such notice. Upon the giving of such notice,
this Lease and the estate hereby granted shall expire and terminate on such date
as fully and completely and with the same effect as if such date were the date
hereinbefore fixed for the expiration of the Term, and all rights of Tenant
hereunder shall expire and terminate, but Tenant shall remain liable as
hereinafter provided. Further, Tenant hereby expressly waives any rights of
redemption it may have under M.G.L. c. 186, ss.11 or pursuant to any other
statutory provision or common law principle.
14.2.2 Landlord shall have the immediate right, whether or not this
Lease shall have been terminated pursuant to Section 14.2.1, to re-enter and
repossess the Leased Premises or any part thereof and repossess the same as of
its former estate by summary proceedings, ejectment or otherwise and the right
to remove all persons and property therefrom. Landlord shall be under no
liability for or by reason of any such entry, repossession or removal. No such
re-entry or taking of possession of the Leased Premises by Landlord shall be
deemed to waive or prejudice any remedies provided to Landlord hereunder, nor be
construed as an election on Landlord's part to terminate this Lease unless a
written notice of such election be given to Tenant pursuant to Section 14.2.1 or
unless the termination of this Lease be decreed by a court of competent
jurisdiction.
14.2.3 At any time or from time to time after the repossession of
the Leased Premises or any part thereof pursuant to Section 14.2.2, whether or
not this Lease shall have been terminated pursuant to Section 14.2.1, Landlord
may relet the Leased Premises or any part thereof for the account of Tenant, in
the name of Tenant or Landlord or otherwise, without notice to Tenant, for such
term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the Term) and on such conditions
(which may include free rent and any other concessions) and for such uses as
Landlord, in its reasonable discretion, may determine; and Landlord may collect
and receive any rents payable by reason of such reletting. Landlord shall not be
responsible or liable for any failure to relet or to collect any rent due upon
such reletting.
14.2.4 In the event of any termination of this Lease or repossession
of the Leased Premises or any part thereof by reason of the occurrence of an
Event of Default, Tenant will pay to Landlord the Base Rent, Additional Rent and
other sums required to be paid by Tenant for the period to and including the
date of such termination or repossession; and, thereafter, until the end
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of what would have been the Term in the absence of such termination or
repossession, and whether or not the Leased Premises or any part thereof shall
have been relet, Tenant shall be liable to Landlord for, and shall pay to
Landlord, as liquidated and agreed current damages, the Base Rent, Additional
Rent and other sums which would be payable under this Lease by Tenant in the
absence of such termination or repossession, less the net proceeds, if any, of
any reletting effected for the account of Tenant pursuant to Section 14.2.3,
after deducting from such proceeds all of Landlord's expenses reasonably
incurred in connection with such reletting (including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorney's fees,
employee expenses, alteration costs and expenses of preparation for such
reletting). Tenant will pay such current damages on the days on which Base Rent
would have been payable under this Lease in the absence of such termination or
repossession, and Landlord shall be entitled to recover the same from Tenant on
each such day.
14.2.5 At any time after any such termination of this Lease or
repossession of the Leased Premises or any part thereof by reason of the
occurrence of an Event of Default, whether or not Landlord shall have collected
any current damages pursuant to Section 14.2.4, Landlord shall be entitled to
recover from Tenant, and Tenant will pay to Landlord on demand, as and for
liquidated and agreed final damages for any Event(s) of Default by Tenant and in
lieu of all current damages beyond the date of such demand (it being agreed that
it would be impracticable or extremely difficult to fix the actual damages), an
amount equal to the net present value (discounted to present value at the then
applicable so-called federal discount rate) of the excess, if any, of (a) the
Base Rent, Additional Rent and other sums which would be payable under this
Lease from the date of such demand (or, if it be earlier, the date to which
Tenant shall have satisfied in full its obligations under Section 14.2.4 to pay
current damages) for what would be the then unexpired Term in the absence of
such termination or repossession plus Landlord's estimate of the aggregate
expenses of reletting the Leased Premises, over (b) the then net fair rental
value of the Leased Premises for the same period (after deducting from such fair
rental value reasonable amounts on account of the time needed to relet the
Leased Premises and concessions which would normally be given to a new tenant).
Fair rental value shall be established by reference to the terms and conditions
upon which Landlord relets the Leased Premises if such reletting is accomplished
within a reasonable period of time after such termination or repossession and
otherwise established on the basis of Landlord's estimates and assumptions of
fact regarding market and other relevant circumstances, which shall govern
unless shown to be clearly erroneous.
14.3 Landlord's Cure Rights. If an Event of Default shall occur, Landlord,
without being under any obligation to do so and without thereby waiving such
Event of Default, may remedy such default for the account and at the expense of
Tenant.
14.4 Tenant's Obligation to Reimburse Landlord. If Landlord makes any
expenditures (pursuant to Section 14.3 above or otherwise) or incurs any
obligations for the payment of money in connection with any failure of Tenant to
perform fully all of its obligations under this Lease, such sums paid or
obligations incurred (including but not limited to, reasonable attorney's fees
and court costs in instituting, prosecuting or defending any action or
proceeding),
25
with interest at the rate equal to the prime rate charged from time to time by
Fleet Boston N.A., or its successor, plus two percent (2%) per annum (the "Lease
Interest Rate") and costs, shall upon demand be paid to Landlord by Tenant as
Additional Rent.
14.5 No Waiver. Landlord's or Tenant's failure to take action against the
other party with respect to any default in the other party's performance of its
obligations hereunder shall not, under any circumstances, constitute a waiver of
any of the other's rights under this Lease and, further, no waiver of any of the
provisions of this Lease shall be effective unless given in writing nor shall
any waiver be construed as a waiver of any of the other provisions hereof or as
a waiver of the same provisions for any subsequent time.
14.6 Acceptance of Late Payments. No payment by Tenant, or acceptance by
Landlord, of a lesser amount than then due from Tenant to Landlord shall be
treated otherwise than as a payment on account regardless of any letter
accompanying such check or legend entered upon such check. Further, no
acceptance of any payment by Landlord from Tenant shall in any way constitute a
waiver of any default then existing (other than with respect to, and to the
extent of, the payment made and accepted) or which would exist with the proper
giving of notice.
14.7 Interest on Late Payments. If Tenant shall fail to pay, when the same
is due and payable, any Base Rent, or Additional Rent or any other charges or
payments required hereunder (excluding the payments described in Section 14.4
above), such unpaid amounts shall bear interest from the due date thereof to the
date of payment at the Lease Interest Rate, but in no event higher than the
maximum rate permitted by law; and, in addition, Tenant shall pay Landlord a
late charge for any Base Rent, any Additional Rent or any other charges or
payments due hereunder which is paid after its due date equal to five percent
(5%) of such payment.
14.8 Remedies Cumulative. Any and all remedies set forth in this Lease (a)
shall be in addition to any and all other remedies either party may have at law
or in equity, (b) shall be cumulative, and (c) may be pursued successively or
concurrently as such party may elect. The exercise of any remedy by either party
shall not be deemed an election of remedies or preclude either party from
exercising any other remedies in the future.
14.9 Landlord's Rights in Tenant's Bankruptcy. If this Lease is assigned
to any person or entity pursuant to the provisions of the Bankruptcy Code, 11
U.S.C. 101 et seq. as now existing or hereafter amended (the "Bankruptcy Code"),
any and all monies or other considerations payable or otherwise to be delivered
in connection with such assignment shall be paid and delivered to Landlord,
shall be and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly paid
to or turned over to the Landlord. Notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as rent, including, without
limitation, the Base Rent
26
and Additional Rent specified herein, shall constitute rent for the purpose of
Section 502(b)(7) of the Bankruptcy Code.
If Tenant assumes this Lease and proposes to assign the same pursuant to
the provisions of the Bankruptcy Code to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms acceptable
to Tenant, then notice of such proposed assignment, setting forth (a) the name
and address of such person; (b) all of the terms and conditions of such offer,
and (c) the adequate assurance to be provided Landlord to assure such person's
future performance under the Lease, including without limitation, the assurance
referred to in Sections 365(b)(1)(c) and 365(b)(3) of the Bankruptcy Code, shall
be given to Landlord by the Tenant no later than twenty (20) days after receipt
by the Tenant of such bona fide offer, but in any event no later than ten (10)
days prior to the date that the Tenant shall make application to a court of
competent jurisdiction for authority and application to enter into such
assignment and assumption, and Landlord shall thereupon have the prior right and
option, to be exercised by notice to the Tenant given at any time prior to the
effective date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such person, less any brokerage commissions which
may be payable out of the consideration to be paid by such person for the
assignment of this Lease. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed on and after the date of such assignment all
of the obligations arising under this Lease. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such assumption.
14.10 Landlord's Default. (a) If Tenant shall give written notice to
Landlord requesting that Landlord undertake any repair or replacement of the
Leased Premises or Property or to undertake any other obligation which Landlord
is expressly required to perform under the terms of this Lease, and Landlord
shall not, within twenty (20) business days thereafter either (i) commence and
diligently and continuously prosecute such repair, replacement or other
obligation, or (ii) refute on some reasonable basis Tenant's contention that
Landlord is required to undertake the same, then in such event, Tenant may give
a second notice to Landlord requesting that Landlord undertake the same. If,
within fifteen (15) days after such second notice, Landlord shall not either (i)
commence and diligently prosecute such repair, replacement or other obligation
or (ii) refute on some reasonable basis Tenant's contention that Landlord is
required to undertake the same, then Tenant, on three (3) business days prior
notice to Landlord of Tenant's intent to do so, may undertake such repair,
replacement or other obligation on Landlord' behalf (unless Landlord shall have
already commenced and be diligently prosecuting the same) and Landlord shall
reimburse Tenant for the reasonable costs incurred by Tenant in connection
herewith within fifteen (15) business days after demand by Tenant therefor (such
demand to be accompanied by documentation of such expenditures in reasonable
detail).
(b) If Landlord shall not make payment to Tenant as required
pursuant to this Subsection 14.10, then Tenant may file a legal proceeding
against Landlord to recover the same, but under no circumstance will Tenant have
the right to offset against Base or Additional Rent any amount owed by Landlord
to Tenant pursuant to this Section 14.10. If Tenant prevails
27
against Landlord in connection with such legal proceeding, then Landlord shall
also be obligated to reimburse Tenant fully for any and all reasonable
attorney's fees or other costs incurred by Tenant in connection with such legal
proceeding and Landlord agrees that its obligation to reimburse Tenant shall be
made a part of any order entered by a court as part in such legal proceeding.
ARTICLE XV
SURRENDER; HOLDING OVER
15.1 Surrender of Leased Premises. Tenant shall, at the expiration or
other termination of the Term, (a) remove all of Tenant's goods and effects and
trade fixtures from the Leased Premises (including, without hereby limiting the
generality of the foregoing, all signs and lettering affixed or painted by
Tenant either inside or outside the Leased Premises) and repair fully any damage
caused by such removal, and (b) deliver to Landlord the Leased Premises, in
broom clean condition, and otherwise in the same condition as existed as of the
Commencement Date (normal wear and tear, conditions resulting from the failure
of Landlord to perform its obligations under this Lease or from the negligence
of Landlord, its agents, contractors, or employees, and damage by fire or other
casualty excepted), all keys, locks thereto, other fixtures connected therewith
and all alterations and additions made to or upon the Leased Premises (other
than any Tenant's trade fixtures removed pursuant to the preceding subsection
(a)). Upon Tenant's failure to comply with the preceding sentence which failure
continues for more than five (5) business days after notice to Tenant, Landlord
is hereby authorized, without liability to Tenant for loss or damage thereto,
and at the sole risk of Tenant, to remove and store any of such property at
Tenant's expense, or to retain same under Landlord's control or to sell, at
public or private sale, without notice, any or all of such property not so
removed and to apply the net proceeds of such sale to the payment of any sum due
hereunder, or to destroy such property.
15.2 Holding Over. If Tenant remains in possession of the Leased Premises
or any part thereof after the expiration or earlier termination of the Term of
this Lease, Tenant shall be deemed to be in use and occupancy of the Leased
Premises as a month-to-month tenant at a rate of monthly Base Rent equal to one
hundred fifty percent (150%) of the rate of the total monthly installment of
Base Rent then in effect upon the date of expiration or termination of this
Lease and subject to the same terms and conditions (including, without
limitation, provisions concerning the payment of all other charges hereunder) as
those set forth in this Lease other than as to the length of Term. However,
nothing in this Lease provision shall be deemed to extend the Term beyond that
set forth in Article 2 hereof, nor grant any right to Tenant or any other person
to use, occupy, or remain in possession of all or any part of the Leased
Premises beyond the expiration or earlier termination of the Term of this Lease.
28
ARTICLE XVI
LANDLORD'S LIABILITY
16.1 Limited Recourse. Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned and the rents,
issues, profits and proceeds thereof, for recovery of any judgment from
Landlord; it being specifically agreed that Landlord (original or successor)
shall never be personally liable for any such judgment, or for the payment of
any monetary obligation to Tenant.
16.2 Interruption of Services and Utilities. Landlord shall in no event be
liable for any interruption in, failure of, or discontinuance of services or
utilities to the Building or the Leased Premises for any reason, including,
without limitation, when such services or utilities are interrupted (a) by
strike (not limited to Landlord or its business operations), lockout, breakdown,
accident, order or regulation of or by an governmental authority, or failure of
supply, (b) by reason of the making of repairs or alterations which Landlord is
required or is permitted by this Lease or by law to make or in good xxxxx xxxxx
necessary (but any such work shall, to the extent feasible, be performed at
times and in a manner that will minimize interference with Tenant's use and
occupancy of the Leased Premises); (c) by inability to obtain supplies, parts or
employees necessary to furnish such services, or because of war or other
emergency, (d) by any other cause beyond Landlord's reasonable control, or (e)
by any cause due to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees or any persons claiming by, through or under Tenant In
addition, no such interruption in, failure of, or discontinuance of any such
services or utilities shall be considered as an eviction or disturbance of
Tenant's occupancy of the Leased Premises, relieve Tenant from its obligations
under this Lease, or entitle Tenant to any offset rights or any other rights or
remedies against Landlord.
16.3 No Consequential Damages. In no event shall Landlord or Tenant ever
be liable to the other party for any loss of business or any other indirect or
consequential damages suffered by such other party from whatever cause.
16.4 Liability after Conveyance of Property. The term "Landlord", as used
herein, shall mean and refer to the owner of the fee estate in the Property
whosoever such owner may be from time to time or to the person or entity named
as Landlord above or its successors or assigns, as the case may be; and upon any
conveyance or transfer of the interest of such person or entity as Landlord,
such person or entity shall be thereupon released and discharged from any and
all liability under this Lease or otherwise to Tenant and any and all others
whomsoever except for breaches of this Lease occurring prior to such transfer.
29
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 Governing Law. This Lease shall be governed by the law of the
Commonwealth of Massachusetts and shall be deemed to have been made, executed,
delivered and accepted by the respective parties in that state.
17.2 Partial Invalidity. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law. It is the intention of the parties hereto that if any
provision of this Lease is capable of two constructions, one of which would
render the provision valid, then the provision shall have the meaning which
renders it valid.
17.3 Captions. The captions of this Lease are for convenience and
reference only and shall not be deemed or construed to bind, modify, increase,
or decrease the terms and conditions of this Lease, or any interpretation or
construction thereof.
17.4 Successors and Assigns. The terms and conditions in this Lease shall
apply to and be binding upon the parties herein and their respective successors
and assigns, except as expressly otherwise provided.
17.5 Recording of Lease. Tenant shall not record this Lease. However, at
the request of either party, Landlord and Tenant shall execute, acknowledge,
deliver, exchange, and record at the requestor's expense a Notice of Lease or
other short-form instrument permitted under applicable state law and prepared by
Landlord.
17.6 Entire Agreement. This Lease and any and all exhibits and riders
attached hereto and made a part of this Lease constitute the entire agreement of
the parties concerning this Lease, and any and all other or prior agreements,
representations, or warranties are hereby terminated, canceled, and agreed to be
void and of no force or effect.
17.7 Amendments. No change, amendment, deletion, or addition to this Lease
shall be effective unless in writing and signed by the parties.
17.8 Quiet Enjoyment. So long as Tenant is not in default of any of its
obligations under this Lease, Tenant shall peaceably and quietly have, hold and
enjoy the Leased Premises free of any claims by, through or under Landlord.
17.9 No Partnership. Nothing in this Lease shall create or be construed to
create a partnership between Tenant and Landlord, or make them joint venturers,
or bind or make
30
Landlord in any way liable or responsible for any acts, omissions, negligence,
debts or obligations of Tenant.
17.10 Time of Essence. Time is of the essence of this Lease and all of the
terms and conditions specified herein.
17.11 Brokerage. Tenant acknowledges that Tenant has dealt with no broker
in connection with this Lease other than the Broker or Brokers named in Section
1.8 above. In the event of any other brokerage claim against Landlord predicated
upon dealings with Tenant, Tenant agrees to defend the same and indemnify
Landlord against any such claim. Landlord warrants and represents that it has
dealt with no broker in connection with the consummation of this Lease except
the Broker or Brokers listed in Section 1.8 above, and in the event of any other
brokerage claim against Tenant predicated upon dealings with Landlord, Landlord
agrees to defend the same and indemnify Tenant against any such claim. The
Brokers shall be paid by Landlord.
17.12 Rules and Regulations. Tenant agrees to comply, and cause its
employees, agents, contractors, invitees and other representatives to comply,
with any and all rules and regulations established by Landlord for the Property
as reasonably determined by Landlord to be necessary for the orderly and
efficient operation of the Property, including, without limitation, those rules
and regulations set forth in Exhibit RR attached hereto and any reasonable
modifications, amendments or additions thereto as Landlord may make from time to
time by written notice to Tenant. However, Landlord shall not be responsible to
Tenant for failure to enforce any of such rules and regulations or for the
non-observance or violation of any of such rules and regulations by any other
tenant or owner or by any other person, or for the non-observance or violation
of or failure to enforce or to perform the provisions of any other lease.
17.13 Signs. Tenant shall obtain the prior written consent of Landlord,
which consent shall not be unreasonably withheld, before placing any sign at,
on, or about the door to the Leased Premises. Tenant shall also obtain the prior
written consent of Landlord, which consent may be withheld in Landlord's sole
and absolute discretion, before erecting any other type of sign outside of the
Building or any exterior door, wall, window, or portion of the Leased Premises,
or within the lobby of the Building and Landlord shall have no obligation
whatsoever to approve any such sign. Any materials or displays approved by
Landlord, shall at all times be maintained by Tenant at its cost and expense in
good condition, good working order and appearance and in compliance with all
applicable laws, codes, ordinances and by-laws; and Tenant hereby
unconditionally and irrevocably authorizes Landlord to enter upon the Leased
Premises at Tenant's expense and without liability or penalty, and to remove any
materials or displays not in accordance with each and all of the foregoing
provisions. Landlord shall provide, at Landlord's sole cost and expense, an
identifying sign for Tenant in a Building directory located in the lobby of the
first (1st) floor of the Building. Landlord shall make good faith efforts to
obtain all required approvals and permits to (i) demolish the existing Building
monument sign and (ii) reconstruct a new Building monument sign which includes
Tenant's corporate name. Tenant acknowledges and agrees that: (a) any such
monument sign shall contain the names of
31
other tenants, (b) the design and location of such sign as well as the placement
and appearance of Tenant's name on such sign shall be determined by Landlord in
its sole discretion and (c) Landlord shall have no liability for failure to
obtain the approvals and permits necessary to reconstruct such monument sign.
17.14 Landlord's Access and Tenant's Access; Security. (a) Landlord or
agents of Landlord may, during Tenant's normal business hours and upon
twenty-four (24) hours prior notice to Tenant (or at any time without notice in
the case of emergency), enter the Leased Premises to (i) inspect the same, (ii)
remove placards and signs affixed thereto and not approved as herein provided,
(iii) make alterations as provided in and to the extent permitted under Section
8.2 above or repairs, (iv) show the Leased Premises to others, and (v) at any
time within six (6) months before the expiration of the Term, affix to any
suitable part of the Leased Premises a notice that the Leased Premises are
available for lease and keep the same so affixed without hindrance or
molestation.
(b) During the Term of this Lease, Tenant and its agents,
contractors, and employees shall have access to the Leased Premises, the Common
Areas and the parking facilities twenty-four (24) hours per day, seven (7) days
a week, fifty-two (52) weeks per year, through means of the Building card-key
security/access system and Landlord shall, without additional charge, provide
Tenant a reasonable number of card-keys for Tenant's employees upon Tenant's
request from time to time, but Landlord shall have no obligation to provide
replacement card-keys to Tenant in the event that any card-keys are lost or
stolen.
17.15 Notices. Any and all notices, demands, consents or approvals
required hereunder shall be given in writing in accordance with this Section
17.15. Any notice from Landlord to Tenant shall be deemed duly served, if mailed
to Tenant's Mailing Address (as defined in Section 1.7 above), or such other
address as Tenant may advise by written notice to Landlord, by overnight
courier, or by registered or certified mail, return receipt requested, postage
prepaid. Any notice from Tenant to Landlord shall be deemed duly served, if
mailed to Landlord by a nationally recognized overnight courier, or by
registered or certified mail, return receipt requested, postage prepaid,
addressed to Landlord at Landlord's Mailing Address (as defined in Section 1.6
above) or at such other address as Landlord may from time to time advise in
writing. All payments of Base Rent and Additional Rent shall be paid and sent to
Landlord at Landlord's Mailing Address.
17.16 No Merger. There shall be no merger of the leasehold estate hereby
created with the fee estate in the Property or any part thereof if the same
person acquires or holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the Property or any interest in such fee
estate.
17.17 No Offer. The submission of this Lease to Tenant shall not be
construed as an offer, and neither Landlord nor Tenant shall have any rights
under this Lease until the mutual execution and delivery of this Lease by
Landlord and Tenant.
32
17.18 Waiver of Jury Trial. To the maximum extent permitted by law,
Landlord and Tenant each waive right to trial by jury in any litigation arising
out of or with respect to this Lease.
17.19 Financial Reports. Not more than once in any twelve (12) month
period, and within fifteen (15) days after Landlord's request, Tenant shall
furnish Tenant's most recent financial statements (including any notes to them)
as may have been prepared by an independent certified public accountant or,
failing those, Tenant's internally prepared financial statements to Landlord.
Delivery of copies of Tenant's most recent public financial statements shall
satisfy the requirements of the preceding sentence. Landlord will not disclose
any aspect of Tenant's financial statements that Tenant designates to Landlord
as confidential except (i) to Landlord's lenders or prospective purchasers of
the Property, (ii) in litigation between Landlord and Tenant, and (iii) if
required by court order.
17.20 Landlord's Fees. Whenever Tenant requests Landlord to take any
action or give any consent required or permitted under this Lease, Tenant will
reimburse Landlord for Landlord's reasonable out-of-pocket costs incurred in
reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within ten (10) days
after Landlord's delivery to Tenant of a statement of such costs, provided that
upon Tenant's specific request for an estimate, Landlord shall deliver a
reasonable estimate of the costs it will incur in connection with such action or
consent. Tenant will be obligated to make such reimbursement without regard to
whether Landlord consents to any such proposed action.
17.21 Telecommunications. Tenant and its telecommunications companies,
including but not limited to local exchange telecommunications companies and
alternative access vendor services companies shall have no right of access to
and within the Building, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless, and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent which shall not be
unreasonably withheld, conditioned or delayed. Regardless of Landlord's consent
to the installation and operation of such telecommunications systems, Tenant
hereby acknowledges that Landlord has no obligation to Tenant to ensure
performance by telecommunication companies or other service companies, and
Landlord has no responsibility for any delays, deficiencies or defects in
connection with the services provided. Tenant hereby acknowledges and agrees
that the indemnification of Landlord by Tenant set forth in Section 11.2 above,
shall expressly apply to any damage to the Leased Premises or the Building, and
injury to persons or other damage to property occurring during or as a result of
any actions taken or done pursuant to Landlord's consent given in accordance
with this Section 17.21, subject in any event to the provisions of Section 12.3
above.
17.22 Intentionally Omitted.
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17.23 Notice to Landlord's Mortgagee. Tenant shall not seek to enforce any
remedy it may have for any default on the part of the Landlord without first
giving written notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Landlord's Mortgagee whose address has
been given to Tenant, and affording such Landlord's Mortgagee a reasonable
opportunity to perform Landlord's obligations hereunder.
17.24 Condition of Leased Premises. Tenant hereby accepts the Leased
Premises in their "AS-IS" condition, and Landlord shall have no obligation to
perform any work therein (including, without limitation, demolition of any
improvements existing therein or construction of any tenant finish-work or other
improvements therein), and shall not be obligated to reimburse Tenant or provide
an allowance for any costs related to the demolition or construction of
improvements therein except for completion of the Landlord Work (defined below)
in accordance with Exhibit LW. No agreement of Landlord to alter, remodel,
decorate, clean or improve the Leased Premises or the Building (or to provide
Tenant with any credit or allowance for the same), and no representations
regarding the condition of the Leased Premises or the Building have been made by
or on the behalf of Landlord or relied upon by Tenant other than with respect to
the Landlord Work and the Tenant Improvement Allowance, as set forth in Section
17.25 and as described in Exhibit LW. Landlord and Tenant expressly disclaim any
implied warranty that the Leased Premises are suitable for Tenant's intended
commercial purpose, and Tenant's obligation to pay rent hereunder is not
dependent upon the condition of the Leased Premises or the performance by
Landlord of its obligations hereunder (excepting the substantial completion of
the Landlord Work (defined below) pursuant to Section 17.25 below), and, except
as otherwise expressly provided herein, Tenant shall continue to pay the rent,
without abatement, setoff or deduction, notwithstanding any breach by Landlord
of its duties or obligations hereunder, whether express or implied. Except with
respect to the Landlord Work, Tenant's taking possession of the Leased Premises
shall be conclusive evidence that the Leased Premises were in good order and
satisfactory condition when Tenant took possession.
17.25 Landlord's Work. Landlord shall perform the construction work (the
"Landlord Work") described in Exhibit LW attached hereto in a good and
workmanlike manner and in accordance with all Government Regulations and shall
substantially complete the Landlord Work (that is, complete the Landlord Work,
except for normal "punch list" items which shall be completed within thirty (30)
days after substantial completion of the Landlord Work) on or before May 1,
2000. Subject to the provisions of the following paragraph, if substantial
completion of the Landlord Work is delayed beyond May 1, 2000, payment of Base
Rent pursuant to Section 3.1 of this Lease shall cease until the date the
Landlord Work is substantially complete.
In the event the Landlord Work is not substantially completed on or before
June 1, 2000 (the "Outside Date for Completion"), Tenant shall have the right to
terminate its obligations under this Lease; provided, however, that (1) the
Outside Date for Completion shall be extended for a period equal to the duration
of any delays in construction caused by strikes, shortages or materials, acts of
God or other matters not reasonably within the control of Landlord, and (2) in
the event any delays in completing the Landlord Work are as a result of change
orders or other delays caused by Tenant, the Outside Date for Completion shall
be extended day for day for each
34
such delay caused by Tenant or longer if appropriate to compensate for
additional delays which were encountered on account of items enumerated in (1)
above that would not otherwise have been encountered but for the Tenant caused
delays.
Except for latent defects and deficiencies in the Landlord Work of which
Tenant has given written notice to Landlord not later than thirty (30) days
following the Commencement Date or, if longer, not later than the term of any
warranty Landlord has obtained from its contractors respecting any such defect
or deficiency, Landlord shall be deemed to have satisfactorily completed the
Landlord Work, and Tenant shall be deemed to have waived all rights and remedies
with respect to deficiencies (other than latent defects) in the Landlord Work.
If Tenant does give timely notice of deficiencies, Landlord shall remedy as soon
as reasonably practicable any deficiencies specified in such notice and shall
begin such remediation within thirty (30) days after Tenant's notice.
Landlord shall construct the demising wall shown on Exhibit LW and bear
the full cost of the Tenant Improvement Allowance (defined below). The "Tenant
Improvement Allowance" shall be the allowance for any so-called "hard costs"
incurred in constructing the Landlord Work, which allowance shall not exceed One
Hundred Forty Thousand One Hundred Forty-Four and 00/100 Dollars ($140,144.00).
Tenant shall be responsible for any construction-related costs of the Landlord
Work on the Leased Premises exceeding One Hundred Forty Thousand One Hundred
Forty-Four and 00/100 Dollars ($140,144.00), and Tenant shall pay such amount to
Landlord within thirty (30) days after receiving an invoice describing the costs
with reasonable detail. Within five (5) business days after Tenant's request,
Landlord shall provide to Tenant reasonable supporting documents concerning such
costs. In the event such costs are less than the Tenant Improvement Allowance,
Tenant shall have the right to apply the balance of the Tenant Improvement
Allowance to Tenant's costs of (i) moving to the Leased Premises and (ii)
installing wiring and/or cabling in the Leased Premises and costs associated
therewith.
17.26 Relocation. Intentionally Omitted.
17.27 Right of First Offer. Subject to the then-existing renewal options
of other tenants and to the first offer rights of the tenants set forth on
Exhibit ER attached hereto, and provided no Event of Default (defined herein)
then exists, Landlord shall, prior to offering the same to any party (other than
the then-current tenants therein), first offer to lease to Tenant any space
which may become "available" (i.e., space which is actually vacant or any space
for which the then existing lease will terminate within the next twelve (12) or
fewer months) in the Building (the "Offer Space") in a broom clean, "AS-IS"
condition. Such offer shall be in writing and specify the lease terms for the
Offer Space, including the Base Rent and Additional Rent to be paid for the
Offer Space and the date on which the Offer Space shall be included in the
Leased Premises (the "Offer Notice"). Tenant shall notify Landlord in writing
whether Tenant elects to lease the entire Offer Space on the terms set forth in
the Offer Notice, within thirty (30) days after Landlord delivers to Tenant the
Offer Notice. If Tenant timely elects to lease the Offer Space, Landlord and
Tenant shall negotiate in good faith for thirty (30) days in an effort to
execute a mutually acceptable lease or amendment to this Lease. If a mutually
agreeable Lease is not
35
executed by both parties in such thirty (30) day period, Landlord shall have the
right to offer the Offer Space to third parties on such terms as are not
materially more favorable to such third party than those contained in the Offer
Notice and Tenant's rights under this Section 17.27 shall lapse and be of no
force or effect.
If Tenant fails or is unable for any reason whatsoever to timely exercise
its right under this Section 17.27, then such right shall lapse, time being of
the essence with respect to the exercise thereof, and Landlord may lease all or
a portion of the Offer Space to third parties on such terms as are not
materially more favorable to such third party than those contained in the Offer
Notice. Tenant may not exercise its rights under this Section 17.27 if an Event
of Default exists or Tenant and/or its affiliates is not-then-occupying the
entire Leased Premises. In no event shall Landlord or Tenant be obligated to pay
a commission to the other's broker(s) with respect to any space leased by Tenant
under this Section 17.27, and Tenant and Landlord shall each indemnify the other
against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any broker or agent claiming the
same by, through, or under the indemnifying party. If Landlord has not teased
the Offer Space within twelve (12) months after offering such space to Tenant or
if Landlord desires to lease the Offer Space on terms materially more favorable
than those offered to Tenant, subject to the first offer rights of the other
tenants listed on Exhibit ER, the space shall be re-offered to Tenant in
accordance with this Section 17.27 before being offered to any third party.
17.28 Tenant Improvements. Except for Landlord Work, all improvements to
the Leased Premises are referred to as "Tenant Improvements." Tenant
Improvements shall be constructed in accordance with the plans and
specifications prepared by Tenant ("Tenant Space Plan") (as further defined in
Exhibit TI) and submitted to Landlord and approved by Landlord as provided below
and in Exhibit TI. Landlord's approval, shall be limited to determining whether
Tenant's plans and specifications (a) will have an adverse impact on Landlord's
re-use of the Leased Premises at the end of the Term and (b) conform with the
requirements of applicable Governmental Regulations, good construction
practices, and insurance industry standards, their consistency with the
architectural and structural integrity of the Building, and with the ability of
the heating, ventilation and air conditioning system serving the Leased Premises
to provide adequate ventilation and heating/cooling capacity for general office
purposes. Notwithstanding Section 8.1 above, unless Landlord elects, in writing,
at the time Landlord approves the Tenant Space Plan, to require Tenant to remove
the Tenant Improvements at the end of the Term, Tenant shall have no obligation
to remove such Tenant Improvements; provided that at the time Tenant submits the
Tenant Space Plan for Landlord's approval, Tenant requests that Landlord make
such election.
36
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed and delivered as a sealed instrument by their respective duly
authorized officers as of the day and year first written above.
LANDLORD: TENANT:
ONE CABOT ROAD INVESTORS, L.L.C. C ME RUN CORPORATION
By: /s/ T H One Cabot Road LLC By: /s/ Xxxxx X. Xxxxx
----------------------------- -----------------------------
Its Managing Member Name: Xxxxx X. Xxxxx
------------------------- -----------------------
Title: President
----------------------
By: /s/ Xxxxxx X. Xxx
-----------------------------
Name: Xxxxxx X. Xxx
-----------------------
Title: VP
-----------------------
37
EXHIBIT FP
FLOOR PLAN OF LEASED PREMISES
See Attached.
38
EXHIBIT FP
[GRAPHIC: FLOOR PLAN]
EXHIBIT LD
SITE PLAN
ONE XXXXX XXXX
00
EXHIBIT LD
[GRAPHIC: SITE PLAN]
EXHIBIT LW
LANDLORD WORK
See Attached.
00
XXXXXXX XX
[GRAPHIC: FLOOR PLAN]
EXHIBIT TI
TENANT IMPROVEMENTS
(a) Tenant shall cause its architect to prepare a reasonable detailed layout
plan of proposed Tenant Improvements of the Leased Premises, as the same may be
amended ("Tenant Space Plan") and submitted to and approved by Landlord, which
approval or disapproval shall not be unreasonably delayed or conditioned.
Landlord shall provide its approval or disapproval to Tenant within five (5)
business days after Landlord's receipt of the Tenant Space Plan and provided
that any disapproval shall contain reasonable objections, Tenant will enter into
a contract (the "TI Construction Contract") with one of three general
contractors to be chosen by Landlord in its reasonable discretion and approved
by Tenant in its reasonable discretion ("Tenant's General Contractor"). Tenant
shall have the right to solicit competitive bids for the construction of the
Tenant Improvements from said three (3) general contractors.
(b) Tenant shall adhere to the following requirements in performing all the
Tenant Improvements work. Tenant shall procure all necessary governmental
approvals and all Tenant Improvements work shall be performed at Tenant's risk
in compliance with all applicable laws and in a good and workmanlike manner
employing new materials of good quality and producing a result at least equal in
quality to the other parts of the Leased Premises. When any Tenant Improvements
work is in progress, Tenant shall cause to be maintained insurance as described
below and such other insurance as may be required by Landlord covering any
additional hazards due to such Tenant Improvements work. It shall be a condition
of Landlord's approval of any Tenant Improvements work (i) that certificates of
such insurance, issued by responsible insurance companies qualified to do
business in Massachusetts and reasonably approved by Landlord, shall have been
deposited with Landlord, (ii) that Tenant has provided Tenant's certification of
the insurable value of the work in question for casualty insurance purposes, and
(iii) that all of the other conditions of the Lease have been satisfied. At all
times while performing Tenant Improvements work, Tenant and each contractor of
Tenant shall not discriminate against any individual because of race, color,
sex, religion or national origin.
(c) In performing Tenant Improvements work, each contractor of Tenant shall
comply with Landlord's reasonable requirements relating to the time and methods
for such work, use of delivery elevators and other Building facilities; and no
contractor shall ever interfere with or disrupt any other tenant or other person
using the Building. Each contractor shall in all events work on the Leased
Premises without causing labor disharmony or coordination difficulties, and
without causing any delays to, or impairing any guaranties, warranties or
obligations of, any contractors of Landlord. Tenant and its contractors shall
not have any obligation to employ union labor. If any such contractor uses or
asks Landlord to provide any services in addition to those services specified in
this Lease, such contractors, jointly and severally with Tenant, shall agree to
reimburse Landlord for the cost thereof based on Landlord's schedule of charges
established from time to time (and if no such charges have been established,
then based on Landlord's reasonable charge established at the time). Each such
contractor shall, by its entry into the Building, be deemed to have agreed
jointly and severally with Tenant to indemnify and hold
47
Landlord, Landlord's Managing Agent and Landlord's mortgagee and their
respective partners, officers, directors, employees and agents harmless from any
claim, loss or expense arising in whole or in part out of any act or neglect
committed by such person while in the Building, to the same extent as Tenant has
so agreed in the Lease.
Tenant shall purchase and, unless waived in writing by the Landlord in
particular instances, shall cause each contractor of Tenant to purchase, in a
company or companies against which the Landlord has no reasonable objections,
such insurance as will protect Landlord from claims set forth below:
4.1 claims under workers' or workmen's compensation, disability
benefit and other similar employee benefit acts;
4.2 claims for damages because of bodily injury, occupational
sickness or disease, or death of his employees;
4.3 claims for damages because of bodily injury, sickness or
disease, or death of any person other than his employees arising out of the
presence on the Property of such contractor, its agents, employees, or
subcontractors;
4.4 claims for damages insured by personal injury liability coverage
which are sustained (1) by any person as a result of an offense directly or
indirectly related to the employment of such person by the Contractor, or (2) by
any other person;
4.5 claims for damages, other than to the Tenant Improvements work
itself, because of injury to or destruction of tangible property, including loss
of use resulting therefrom;
4.6 claims for damages because of bodily injury or death of any
person or property damage arising out of the ownership, maintenance or use of
any motor vehicle; and
4.7 claims for contractual liability (both oral and written) under
his undertaking with Tenant.
(d) The insurance required shall include all major divisions of coverage, and
shall be on a comprehensive general basis including Premises and Operations
(deleting X-C-U exclusions), Owners' and Contractor's Protective, Products and
Completed Operations, and Owned, Nonowned, and Hired Motor Vehicles. Such
insurance shall be written for not less than any limits of liability required by
law or those set forth below (which amounts may, from time to time, be
reasonably increased by Landlord), whichever is greater.
.1 Xxxxxxx'x Compensation - Statutory/Employers Liability and all
additional endorsements $500,000.
48
.2 Public Liability - Single Limit (Combined) Per Occurrence.
Bodily & Personal Injury $1,000,000
Property Damage $1,000,000 Occurrence/Aggregate.
.3 Automobile Liability - Single Limit (Combined) Per Occurrence.
Bodily Injury $1,000,000
Property Damage $1,000,000 Per Occurrence.
.4 Independent Contractors - $1,000,000 Per Occurrence.
.5 Products and Completed Operations $1,000,000 Per Occurrence,
covering liability for claims made within applicable statutes
of limitations following issuance of final Certificate of
Payment.
.6 Broad Form Blanket Contractual Liability (both oral and
written) $1,000,000 per occurrence.
.7 Excess Liability Umbrella - $5,000,000 Per Occurrence.
Certificates of insurance acceptable to Landlord shall be filed with
Landlord prior to commencement of the Tenant Improvements work. These
Certificates shall contain a provision that coverages afforded under the
policies will not be amended, canceled or non-renewed until at least 30 days'
prior written notice has been given to Landlord and all other additional
insureds. The form of certificate shall be acceptable to Landlord. If by the
terms of insurance carried by tenant or any contractor a mandatory deductible is
required, in the event of a paid claim Tenant or such contractor shall be
responsible for the deductible amount. All deductible/self-insured retention
amounts shall be show on the Certificate of Insurance. In all cases, Landlord,
Landlord's Managing Agent, each mortgagee of the Building and any other person
designated by Landlord shall be named as additional insureds.
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EXHIBIT J
JANITORIAL SERVICES
Cleaning Specifications
A. General Notes
1. All cleaning personnel shall sign in and out at the main lobby
security desk.
2. Building keys shall be accounted for and returned daily. Any missing
keys are to be reported to building security immediately.
3. All cleaning personnel will wear uniforms and proper identification
including the company and the employee names.
4. Cleaning company will maintain a logbook on a daily basis noting any
problems, areas inaccessible due to tenants working after hours and
utility work completed.
5. Cleaning supervisors will maintain a log of building supplies used
and advise management when to restock. Cleaning supervisor will be
responsible for transporting, storing and organizing supplies.
6. Supervisors will be responsible for turning off all lights and
locking all doors when their job is done.
B. Main Lobby and Common Areas
1. Dust mop, wash and rinse all hard floor surfaces. Wash with a
detergent solution and rinse with a clear water solution. Spray
buff, using a high speed floor machine as necessary. Strip and
reseal as directed.
2. Clean all entrance mats as required.
3. Vacuum all carpeted surfaces and spot clean all stains with a spot
carpet cleaner.
4. Clean, with glass cleaner, all fingerprints and marks on all glass
entry doors including revolving doors, etc.
5. Polish all exposed metal surfaces in main lobby.
6. Wipe clean and polish all metal and wood surfaces in elevator and on
elevator doors.
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7. Vacuum carpeted elevators and spot clean as necessary. Wash freight
elevator floor as necessary.
8. Dust elevator light fixtures.
9. Empty all exterior trash receptacles, cleaning as needed and replace
liners.
10. Clean and sanitize all drinking fountains using a germicidal
detergent solution.
C. Restrooms
1. Dust mop and sweep tiled lavatory floors. Wash and rinse using
germicidal solution. Machine scrub once per month. Strip and reseal
tile floors as directed.
2. Clean, using a germicidal solution, all metal toilet and urinal
partitions.
3. Clean, using a germicidal solution, all tile walls as required.
4. Clean all vanity tops.
5. Clean and sanitize all sinks, toilet bowls and seats, and urinals,
using a germicidal detergent.
6. Clean and polish all bright work (chrome fixtures, faucets, etc.).
7. Clean and sanitize all dispensers and receptacles (soap dispensers,
paper towels, toilet paper, sanitary napkins).
8. Refill all dispensers in lavatories.
9. Remove all waste paper and refuse to a designated area.
D. Tenant Cleaning
1. Empty all wastebaskets and dispose of trash in designated area.
Replace plastic liners.
2. Dust mop, wash and rinse all hard surfaces. Spray buff, using a high
speed floor machine, as necessary. Strip and reseal floors as
directed.
3. Vacuum all carpeted surfaces and spot clean all stairs with a spot
cleaner.
4. Clean all fingerprints and marks on walls, door frames, kick planes,
door louvers, door handles and light switches.
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5. Dust and clean any spots on all baseboards throughout tenant areas.
6. Dust and wipe clean as necessary, all furniture, chair rails,
moldings, closets and coat racks.
7. Damp wipe and polish all glass furniture tops.
E. Utility Cleaning
1. Keep electric and telephone closets in clean and orderly fashion.
2. Police loading dock and trash areas.
3. Perform miscellaneous projects such as cleaning mechanical areas,
exterior stairs, etc. as may be requested by building management.
52
EXHIBIT ER
EXISTING RIGHTS OF OTHER TENANTS IN EXPANSION SPACE
- The Travelers Indemnity Company
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