EXHIBIT 10.10
OFFICE LEASE
THIS LEASE made as of the 27th day of December, 1996, between 000
Xxxxxxxx Xxxxxx Associates Trust, a Massachusetts Business Trust ("Landlord")
and Corechange LLC, a Delaware limited liability company whose address is 000
Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("Tenant").
WITNESSETH:
ARTICLE 1
PREMISES AND TERM
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
that certain space known as Suite 1890 ("Premises") described or shown on
Exhibit A attached hereto, in the building known as the 000 Xxxxxxxx Xxxxxx
("Building") located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Property", as
further described in Article 25), subject to the provisions herein contained.
The term ("Term") of this Lease shall commence on the 1st day of March, 1997
("Commencement Date"), and end on the 28th day of February, 2002 ("Expiration
Date"), unless sooner terminated as provided herein. The Commencement Date and
Expiration Date shall be subject to adjustment as provided in Article 4.
Landlord and Tenant agree that for purposes of this Lease the rentable area of
the Premises is 5,879 square feet and the rentable area of the Property is
348,901 square feet.
ARTICLE 2
BASE RENT
Tenant shall pay Landlord monthly Base Rent of Fourteen Thousand Nine
Hundred and, Forty-Two Dollars and 46/100 ($14,942.46), in advance on or before
the first day of each calendar month during the Term, provided, however, no Base
Rent shall be due with respect to the fifteen (15) days after the Commencement
Date, but Base Rent for any partial month after the Commencement Date for which
Rent is payable shall be paid on the first day of the Term. If the Term
commences on a day other than the first day of a calendar month, or ends on a
day other than the last day if a calendar month, then the Base Rent for such
month shall be prorated on the basis of 1/30th of the monthly Base Rent for each
day of such month.
ARTICLE 3
ADDITIONAL RENT
(A) TAXES. Tenant shall pay Landlord an amount equal to Tenant's
Prorata Share of Taxes in excess of the amount of Taxes paid by Landlord during
the fiscal year 1997 ("Base Tax Year"). The terms "Taxes" and "Tenant's Prorata
Share" shall have the meanings specified therefor in Article 25.
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(B) OPERATING EXPENSES. Tenant shall pay Landlord an amount equal to
Tenant's Prorata Share of Operating Expenses in excess of the amount of
Operating Expenses paid by Landlord during the calendar year 1997 ("Base Expense
Year"). The terms "Operating Expenses" and "Tenant's Prorata Share" shall have
the meanings specified therefor in Article 25.
(C) Intentionally Omitted.
(D) MANNER OF PAYMENT. Taxes and Operating Expenses shall be paid in
the following manner:
(i) Landlord may reasonably estimate in advance the amounts
Tenant shall owe for Taxes and Operating Expenses for any full or partial
calendar year of the Term. In such event, Tenant shall pay such estimated
amounts, on a monthly basis, on or before the first day of each calendar
month, together with Tenant's payment of Base Rent. Such estimate may be
reasonably adjusted from time to time by Landlord.
(ii) Within 120 days after the end of each calendar year, or as
soon thereafter as practicable, Landlord shall provide a statement (the
"Statement") to Tenant showing: (a) the amount of actual Taxes and Operating
Expenses for such calendar year, with a listing of amounts for major
categories of Operating Expenses, and such amounts for the Base Years, (b)
any amount paid by Tenant towards Taxes and Operating Expenses during such
calendar year on an estimated basis and (c) any revised estimate of Tenant's
obligations for Taxes and Operating Expenses for the current calendar year.
(iii) If the Statement shows that Tenant's estimated payments
were less than Tenant's actual obligations for Taxes and Operating Expenses
for such year, Tenant shall pay the difference. If the Statement shows an
increase in Tenant's estimated payments for the current calendar year, Tenant
shall pay the difference between the new and former estimates, for the period
from January 1 of the current calendar year through the month in which the
Statement is sent. Tenant shall make such payments within thirty (30) days
after Landlord sends the Statement.
(iv) If the Statement shows that Tenant's estimated payments
exceeded Tenants actual obligations for Taxes and Operating Expenses, Tenant
shall receive a credit for the difference against payments of Rent next due.
If the Term shall have expired and no further Rent shall be due, Tenant shall
receive a refund of such difference, within thirty (30) days after Landlord
sends the Statement.
(v) Intentionally Omitted.
(vi) So long as Tenant's obligations hereunder are not
materially adversely affected thereby, Landlord reserves the right to
reasonably change, from time to time, the manner or timing of the foregoing
payments. In lieu of providing one Statement covering Taxes or Operating
Expenses, Landlord may provide separate statements, at the same or different
times. No delay by Landlord in providing the Statement (or separate
statements) shall be deemed a default by Landlord or a waiver of Landlord's
right to require payment of Tenant's obligations for actual or estimated
Taxes or Operating Expenses. In no event shall a decrease in Taxes or
Operating Expenses below the Base Year amounts ever decrease the monthly Base
Rent, or give rise to a credit in favor of Tenant.
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(E) PRORATION. If the Term commences other than on January 1, or ends
other than on December 31, Tenant's obligations to pay estimated and actual
amounts towards Taxes and Operating Expenses for such first or final calendar
years shall be prorated to reflect the portion of such years included in the
Term. Such proration shall be made by multiplying the total estimated or actual
(as the case may be) Taxes and Operating Expenses, for such calendar years, as
well as the Base Year amounts, by a fraction, the numerator of which shall be
the number of days of the Term during such calendar year, and the denominator of
which shall be 365.
(F) LANDLORD'S RECORDS. Landlord shall maintain records respecting
Taxes and Operating Expenses and determine the same in accordance with sound
accounting and management practices, consistently applied. Although this Lease
contemplates the computation of Taxes and Operating Expenses on a cash basis,
Landlord shall make reasonable and appropriate accrual adjustments to ensure
that each calendar year, including the Base Years, includes substantially the
same recurring items. Landlord reserves the right to change to a full accrual
system of accounting so long as the same is consistently applied and Tenant's
obligations are not materially adversely affected. Tenant or its representative
shall have the right to examine such records upon reasonable prior notice
specifying such records Tenant desires to examine, during normal business hours
at the place or places where such records are normally kept by sending such
notice no later than forty-five (45) days following the furnishing of the
Statement. Tenant may take exception to matters included in Taxes or Operating
Expenses, or Landlord's computation of Tenant's Prorata Share of either, by
sending notice specifying such exception and the reasons therefor to Landlord no
later than thirty (30) days after Landlord makes such records available for
examination. Such Statement shall be considered final, except as to matters to
which exception is taken after examination of Landlord's records in the
foregoing manner and within the foregoing times. Tenant acknowledges that
Landlord's ability to budget and incur expenses depends on the finality of such
Statement, and accordingly agrees that time is of the essence of this Paragraph.
If Tenant takes exception to any matter contained in the Statement as provided
herein, Landlord shall refer the matter to an independent certified public
accountant, whose certification as to the proper amount shall be final and
conclusive as between Landlord and Tenant. Tenant shall promptly pay the cost of
such certification unless such certification determines that Tenant was
overbilled by more than 2%. Pending resolution of any such exceptions in the
foregoing manner, Tenant shall continue paying Tenant's Prorata Share of Taxes
and Operating Expenses in the amounts determined by Landlord, subject to
adjustment after any such exceptions are so resolved.
(G) RENT AND OTHER CHARGES. Base Rent, Taxes, Operating Expenses, CPI
Escalation Amounts, and any other amounts which Tenant is or becomes obligated
to pay Landlord under this Lease or other agreement entered in connection
herewith, are sometimes herein referred to collectively as "Rent," and all
remedies applicable to the nonpayment of Rent shall be applicable thereto. Rent
shall be paid at any office maintained by Landlord or its agent at the Property,
or at such other place as Landlord may designate.
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ARTICLE 4
COMMENCEMENT OF TERM
The Commencement Date set forth in Article 1 shall be delayed and Rent
shall be abated to the extent that Landlord fails: (i) to substantially complete
any improvements to the Premises required to be performed by Landlord under any
separate agreement signed by both parties, or (ii) to deliver possession of the
Premises for any other reason, including but not limited to holding over by
prior occupants, except to the extent that Tenant, its contractors, agents or
employees in any way contribute to either such failures. If Landlord so fails
for a thirty (30) day initial grace period, Tenant shall have the right to
terminate this Lease by written notice to Landlord any time thereafter up until
Landlord substantially completes any such improvements and delivers the Premises
to Tenant. Any such delay in the Commencement Date shall not subject Landlord to
liability for loss or damage resulting therefrom, and Tenant's sole recourse
with respect thereto shall be the abatement of Rent and right to terminate this
Lease described above. Upon any such termination, Landlord and Tenant shall be
entirely relieved of their obligations hereunder, and any Security Deposit and
Rent payments shall be returned to Tenant. If the Commencement Date is delayed,
the Expiration Date shall not be similarly extended, unless Landlord shall so
elect (in which case, the parties shall confirm the same in writing). During any
period that Tenant shall be permitted to enter the Premises prior to the
Commencement Date other than to occupy the same (e.g., to perform alterations or
improvements), Tenant shall comply with all terms and provisions of this Lease,
except those provisions requiring the payment of Rent. Tenant shall be permitted
to enter the Premises during the period of Landlord's construction after
Landlord has given Tenant notice that Landlord's Work has been substantially
completed or completed to the point at which Tenant's occupancy will not affect
the completion of Landlord's Work and notwithstanding the fact that Tenant so
enters the Premises or a portion thereof prior to the Commencement Date for the
purpose of occupying the same, Rent shall not commence on such date. In the
event Landlord's notice is given to Tenant after January 1, 1997, the
Commencement Date shall be delayed and the Expiration Date shall be extended by
the number of days between January 1, 1997 and the date on which such notice is
given to Tenant.
ARTICLE 5
CONDITION OF PREMISES
Tenant has inspected the Premises, Property, Systems and Equipment (as
defined in Article 25), or has had an opportunity to do so, and agrees to accept
the same "as is" without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements except as expressly provided in any separate agreement that may be
signed by the parties.
ARTICLE 6
USE AND RULES
Tenant shall use the Premises for offices and no other purpose
whatsoever, in compliance with all applicable Laws, and without disturbing or
interfering with any other tenant or occupant
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of the Property. Tenant shall not use the Premises in any manner so as to cause
a cancellation of Landlord's Insurance policies, or an increase in the premiums
thereunder. Tenant shall comply with all rules set forth in Rider One attached
hereto (the "Rules"). Landlord shall have the right to reasonably amend such
Rules and supplement the same with other reasonable Rules (not expressly
inconsistent with this Lease) relating to the Property, or the promotion of
safety, care, cleanliness or good order therein, and all such amendments or new
Rules shall be binding upon Tenant after five (5) days notice thereof to Tenant.
All Rules shall be applied on a non-discriminatory basis, but nothing herein
shall be construed to give Tenant or any other Person (as defined in Article 25)
any claim, demand or cause of action against Landlord arising out of the
violation of such Rules by any other tenant, occupant, or visitor of the
Property, or out of the enforcement or waiver of the Rules by Landlord in any
particular instance.
ARTICLE 7
SERVICES AND UTILITIES
Landlord shall provide the following services and utilities (the cost
of which shall be included in Operating Expenses unless otherwise stated herein
or in any separate rider hereto):
(A) Electricity for standard office lighting fixtures, and equipment
and accessories customary for offices (up to 280 hours per month) where: (1) the
connected electrical load of all of the same does not exceed an average of 4
xxxxx per square foot of the Premises (or such lesser amount as may be
available, based on the safe and lawful capacity of the existing electrical
circuit(s) and facilities serving the Premises), (2) the electricity will be at
nominal 120 volts, single phase (or 110 volts, depending on available service in
the Building), and (3) the safe and lawful capacity of the existing electrical
circuit(s) serving the Premises is not exceeded.
(B) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises under normal business operations, from 8:00 a.m. until
6:00 p.m. Monday through Friday, except on Holidays (as defined in Article 25).
Landlord shall not be responsible for inadequate air-conditioning or ventilation
to the extent the same occurs because Tenant uses any item of equipment
consuming more than 500 xxxxx at rated capacity without providing adequate
air-conditioning and ventilation therefor.
(C) Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusive general use of other tenants at the Property.
(D) Customary office cleaning and trash removal service Monday through
Friday or Sunday through Thursday in and about the Premises.
(E) Operatorless passenger elevator service (if the Property has such
equipment serving the Premises) and freight elevator service (if the Property
has such equipment serving the Premises, and subject to scheduling by Landlord)
in common with Landlord and other tenants and their contractors, agents and
visitors.
(F) Landlord shall seek to provide such extra utilities or services as
Tenant may from time to time request, if the same are reasonable and feasible
for Landlord to provide and do not
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involve modifications or additions to the Property or existing Systems and
Equipment (as defined in Article 25), and if Landlord shall receive Tenant's
request within a reasonable period prior to the time such extra utilities or
services are required. Landlord may comply with written or oral requests by any
officer or employee of Tenant, unless Tenant shall notify Landlord of, or
Landlord shall request, the names of authorized individuals (up to 3 for each
floor on which the Premises are located) and procedures for written requests.
Tenant shall, for such extra utilities or services, pay such charges as Landlord
shall from time to time reasonably establish. All charges for such extra
utilities or services shall be due at the same time as the installment of Base
Rent with which the same are billed, or if billed separately, shall be due
within twenty (20) days after such billing.
Landlord may install and operate meters or any other reasonable system
for monitoring or estimating any services or utilities used by Tenant in excess
of those required to be provided by Landlord under this Article (including a
system for Landlord's engineer to reasonably estimate any such excess usage). If
such system indicates such excess services or utilities, Tenant shall pay
Landlord's reasonable charges for installing and operating such system and any
supplementary air-conditioning, ventilation, heat, electrical or other systems
or equipment (or adjustments or modifications to the existing Systems and
Equipment), and Landlord's reasonable charges for such amount of excess services
or utilities used by Tenant.
Landlord does not warrant that any services or utilities will be free
from shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
fuel, steam, water or supplies, governmental requirements or requests, or other
causes beyond Landlord's reasonable control. None of the same shall be deemed an
eviction or disturbance of Tenant's use and possession of the Premises or any
part thereof, or render Landlord liable to Tenant for abatement of Rent, or
relieve Tenant from performance of Tenant's obligations under this Lease.
Landlord in no event shall be liable for damages by reason of loss of profits,
business interruption or other consequential damages. Notwithstanding the
foregoing, if, due to the unavailability of a service or utility by reason other
than casualty, Tenant can not operate its business from the Premises for ten
(10) business days, then Rent shall xxxxx after such tenth business day until
Tenant is able to operate its business from the Premises.
ARTICLE 8
ALTERATIONS AND LIENS
Tenant shall make no additions, changes, alterations or improvements
(the "Work") to the Premises or the Systems and Equipment (as defined in Article
25) pertaining to the Premises without the prior written consent of Landlord.
Landlord may impose reasonable requirements as a condition of such consent
including without limitation the submission of plans and specifications for
Landlord's prior written approval, obtaining necessary permits, posting bonds,
obtaining insurance, prior approval of contractors, subcontractors and
suppliers, prior receipt of copies of all contracts and subcontracts, contractor
and subcontractor lien waivers, affidavits listing all contractors,
subcontractors and suppliers, use of union labor (if Landlord uses union labor),
affidavits from engineers acceptable to Landlord stating that the Work will not
adversely
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affect the Systems and Equipment or the structure of the Property, and
requirements as to the manner and times in which such Work shall be done. All
Work shall be performed in a good and workmanlike manner and all materials used
shall be of a quality comparable to or better than those in the Premises and
Property and shall be in accordance with plans and specifications approved by
Landlord, and Landlord may require that all such Work be performed under
Landlord's supervision. In all cases, Tenant shall pay Landlord a reasonable
fee to cover Landlord's overhead in reviewing Tenant's plans and
specifications and performing any supervision of the Work. If Landlord
consents or supervises, the same shall not be deemed a warranty as to the
adequacy of the design, workmanship or quality of materials, and Landlord
hereby expressly disclaims any responsibility or liability for the same.
Landlord shall under no circumstances have any obligation to repair, maintain
or replace any portion of the Work.
Tenant shall keep the Property and Premises free from any
mechanic's, materialman's or similar liens or other such encumbrances in
connection with any Work on or respecting the Premises not performed by or at
the request of Landlord, and shall indemnify and hold Landlord harmless from
and against any claims, liabilities, judgments, or costs (including
attorneys' fees) arising out of the same or in connection therewith. Tenant
shall give Landlord notice at least twenty (20) days prior to the
commencement of any Work on the Premises (or such additional time as may be
necessary under applicable Laws), to afford Landlord the opportunity of
posting and recording appropriate notices of non-responsibility. Tenant shall
remove any such lien or encumbrance by bond or otherwise within thirty (30)
days after written notice by Landlord, and if Tenant shall fail to do so,
Landlord may pay the amount necessary to remove such lien or encumbrance,
without being responsible for investigating the validity thereof. The amount
so paid shall be deemed additional Rent under this Lease payable upon demand,
without limitation as to other remedies available to Landlord under this
Lease. Nothing contained in this Lease shall authorize Tenant to do any act
which shall subject Landlord's title to the Property or Premises to any liens
or encumbrances whether claimed by operation of law or express or implied
contract. Any claim to a lien or encumbrance upon the Property or Premises
arising in connection with any Work on or respecting the Premises not
performed by or at the request of Landlord shall be null and void, or at
Landlord's option shall attach only against Tenant's interest in the Premises
and shall in all respects be subordinate to Landlord's title to the Property
and Premises.
ARTICLE 9
REPAIRS
Except for customary cleaning and trash removal provided by Landlord
under Article 7, and damage covered under Article 10, Tenant shall keep the
Premises in good and sanitary condition, working order and repair (including
without limitation, carpet, wall-covering, doors, plumbing and other fixtures,
equipment, alterations and improvements whether installed by Landlord or
Tenant). In the event that any repairs, maintenance or replacements are
required, Tenant shall promptly arrange for the same either through Landlord for
such reasonable charges as Landlord may from time to time establish, or such
contractors as Landlord generally uses at the Property or such other contractors
as Landlord shall first approve in writing, and in a first class, workmanlike
manner approved by Landlord in advance in writing. If Tenant does not promptly
make such arrangements, Landlord may, but need not, make such repairs,
maintenance and replacements, and the costs paid or incurred by Landlord
therefor shall be reimbursed by Tenant promptly after request by Landlord.
Tenant shall indemnify Landlord and pay for any
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repairs, maintenance and replacements to areas of the Property outside the
Premises, caused, in whole or in part, as a result of moving any furniture,
fixtures, or other property to or from the Premises, or by Tenant or its
employees, agents, contractors, or visitors (notwithstanding anything to the
contrary contained in this Lease). Except as provided in the preceding sentence,
or for damage covered under Article 10, Landlord shall keep the common areas of
the Property in good and sanitary condition, working order and repair (the cost
of which shall be included in Operating Expenses, as described in Article 25,
except as limited therein).
ARTICLE 10
CASUALTY DAMAGE
If the Premises or any common areas of the Property providing access
thereto shall be damaged by fire or other casualty, Landlord shall use available
insurance proceeds to restore the same. Such restoration shall be to
substantially the condition prior to the casualty, except for modifications
required by zoning and building codes and other Laws or by any Holder (as
defined in Article 25), any other modifications to the common areas deemed
desirable by Landlord (provided access to the Premises is not materially
impaired), and except that Landlord shall not be required to repair or replace
any of Tenant's furniture, furnishings, fixtures or equipment, or any
alterations or improvements in excess of any work performed or paid for by
Landlord under any separate agreement signed by the parties in connection
herewith. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or its visitors, or injury to Tenant's business resulting in any way from
such damage or the repair thereof. However, Landlord shall allow Tenant a
proportionate abatement of Rent during the time and to the extent the Premises
are unfit for occupancy for the purposes permitted under this Lease and not
occupied by Tenant as a result thereof. Notwithstanding the foregoing to the
contrary, Landlord may elect to terminate this Lease by notifying Tenant in
writing of such termination within sixty (60) days after the date of damage
(such termination notice to include a termination date providing at least ninety
(90) days for Tenant to vacate the Premises), if the Property shall be
materially damaged by Tenant or its employees or agents, or if the Property
shall be damaged by fire or other casualty or cause such that: (a) repairs to
the Premises and access thereto cannot reasonably be completed within 120 days
after the casualty without the payment of overtime or other premiums, (b) more
than 25% of the Premises is affected by the damage, and fewer than 24 months
remain in the Term, or any material damage occurs to the Premises during the
last, 12 months of the Term, (c) any Holder (as defined in Article 25) shall
require that the insurance proceeds or any portions thereof be used to retire
the Mortgage debt (or shall terminate the ground lease, as the case may be), or
the damage is not fully covered by Landlord's insurance policies, or (d) the
cost of the repairs, alterations, restoration or improvement work would
exceed 25% of the replacement value of the Building, or the nature of such
work would make termination of this Lease necessary or convenient. Tenant may
elect to terminate this Lease by notifying Landlord in writing of such
termination if the Property shall be damaged by fire or other casualty or
cause such that repairs to the Premises and access thereto can not reasonably
be completed within 120 days after the casualty or if in fact repairs to the
Premises and access thereto are not in fact completed within 120 days after
the casualty, provided Tenant makes such election within ten (10) days of
notice from the Landlord of the estimated date of completion of such repairs
(which notice Landlord shall give not later than sixty (60) days after the
date of such casualty) or within ten (10) days after the end of such 120-day
period if the Premises or such
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access have not then been restored, but Tenant's election to terminate shall not
be effective in the event Landlord completes such repairs so that the Premises
are usable for Tenant's purposes and reasonable access thereto is provided
within thirty (30) days of Tenant's election to terminate. Tenant agrees that
Landlord's obligation to restore, and the abatement of Rent provided herein,
shall be Tenant's sole recourse in the event of such damage, and waives any
other rights Tenant may have under any applicable Law to terminate the Lease
by reason of damage to the Premises or Property. Tenant acknowledges that
this Article represents the entire agreement between the parties respecting
damage to the Premises or Property.
ARTICLE 11
INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
Tenant shall maintain during the Term comprehensive (or commercial)
general liability insurance, with limits of not less than $1,000,000 combined
single limit for personal injury, bodily injury or death, or property damage or
destruction (including loss of use thereof) for any one occurrence. Tenant shall
also maintain during the Term worker compensation insurance as required by
statute, and primary, noncontributory, "all-risk" property damage insurance
covering Tenant's personal property, business records, fixtures and equipment,
for damage or other loss caused by fire or other casualty or cause including,
but not limited to, vandalism and malicious mischief, theft, water damage of any
type, including sprinkler leakage, bursting or stoppage of pipes, explosion,
business interruption, and other insurable risks in amounts not less than the
full insurable replacement value of such property and full insurable value of
such other interests of Tenant (subject to reasonable deductible amounts).
Landlord shall, as part of Operating Expenses, maintain during the Term
comprehensive (or commercial) general liability insurance, with limits of not
less than $1,000,000 combined single limit for personal injury, bodily injury or
death, or property damage or destruction (including loss of use thereof) for any
one occurrence. Landlord shall also, as part of Operating Expenses, maintain
during the Term worker compensation insurance as required by statute, and
primary, non-contributory, extended coverage or "all-risk" property damage
insurance in an amount equal to at least ninety percent (90%) of the full
insurable replacement value of the Property (exclusive of the costs of
excavation, foundations and footings, and such risks required to be covered by
Tenant's insurance, and subject to. reasonable deductible amounts), or such
other amount necessary to prevent Landlord from being a co-insured, and such
other coverage as Landlord shall deem appropriate or that may be required by
any Holder (as defined in Article 25).
Tenant shall provide Landlord with certificates evidencing such
coverage (and, with respect to liability coverage, showing Landlord, Xxxxxxx
Properties Ltd. and Xxxxxxx Properties of Massachusetts Ltd. as additional
insureds) prior to the Commencement Date, which shall state that such insurance
coverage may not be changed or cancelled without at least twenty (20) days'
prior written notice to Landlord, and shall provide renewal certificates to
Landlord at least twenty (20) days prior to expiration of such policies.
Landlord may periodically, but not more often than every five years, require
that Tenant reasonably increase the aforementioned coverage. Except as provided
to the contrary herein, any insurance carried by Landlord or Tenant shall be for
the sole benefit of the party carrying such insurance. Any insurance policies
hereunder may be "blanket policies." All insurance required hereunder shall be
provided by responsible insurers and Tenant's insurer shall be reasonably
acceptable to Landlord. By this Article, Landlord and
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Tenant intend that their respective property loss risks shall be borne by
responsible insurance carriers to the extent above provided, and Landlord and
Tenant hereby agree to look solely to, and seek recovery only from, their
respective insurance carriers in the event of a property loss to the extent
that such coverage is agreed to be provided hereunder. The parties each hereby
waive all rights and claims against each other for such losses, and waive all
rights of subrogation of their respective insurers, provided such waiver of
subrogation shall not affect the right of the insured to recover thereunder. The
parties agree that their respective insurance policies are now, or shall be,
endorsed such that said waiver of subrogation shall not affect the right of the
insured to recover thereunder, so long as no material additional premium is
charged therefore
ARTICLE 12
CONDEMNATION
If the whole or any material part of the Premises or Property shall
be taken by power of eminent domain or condemned by any competent authority
for any public or quasi-public use or purpose, or if any adjacent property or
street shall be so taken or condemned, or reconfigured or vacated by such
authority in such manner as to require the use, reconstruction or remodeling
of any part of the Premises or Property, or if Landlord shall grant a deed or
other instrument in lieu of such taking by eminent domain or condemnation,
Landlord shall have the option to terminate this Lease upon ninety (90) days
notice, provided such notice is given no later than 180 days after the date
of such taking, condemnation, reconfiguration, vacation, deed or other
instrument. Tenant shall have reciprocal termination rights if the whole or
any material part of the Premises is permanently taken, or if access to the
Premises is permanently materially impaired. Landlord shall be entitled to
receive the entire award or payment in connection therewith, except that
Tenant shall have the right to file any separate claim available to Tenant
for any taking of Tenant's personal property and fixtures belonging to Tenant
and removable by Tenant upon expiration of the Term, and for moving expenses
(so long as such claim does not diminish the award available to Landlord or
any Holder, and such claim is payable separately to Tenant). All Rent shall
be apportioned as of the date of such termination, or the date of such
taking, whichever shall first occur. If any part of the Premises shall be
taken, and this Lease shall not be so terminated, the Rent shall be
proportionately abated.
ARTICLE 13
RETURN OF POSSESSION
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall surrender possession of the Premises in the
condition required under Article 9, ordinary wear and tear, fire and other
casualty excepted, and shall surrender all keys, any key cards, and any parking
stickers or cards, to Landlord, and advise Landlord as to the combination of any
locks or vaults then remaining in the Premises, and shall remove all trade
fixtures and personal property. All improvements, fixtures and other items in or
upon the Premises (except trade fixtures and personal property belonging to
Tenant), whether installed by Tenant or Landlord, shall be Landlord's property
and shall remain upon the Premises, all without compensation, allowance or
credit to Tenant. However, if prior to such termination or within ten (10) days
thereafter Landlord so directs by notice, Tenant shall promptly remove such of
the
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foregoing items as are designated in such notice and restore the Premises to the
condition prior to the installation of such items; provided, Landlord shall not
require removal of customary office improvements installed pursuant to any
separate agreement signed by both parties in connection with entering this Lease
(except as expressly provided to the contrary therein), or installed by Tenant
with Landlord's written approval (except as expressly required by Landlord in
connection with granting such approval). If Tenant shall fail to perform any
repairs or restoration, or fail to remove any items from the Premises required
hereunder, Landlord may do so, and Tenant shall pay Landlord the cost thereof
upon demand. All property removed from the Premises by Landlord pursuant to any
provisions of this Lease or any Law may be handled or stored by Landlord at
Tenant's expense, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. All property not removed from the Premises
or retaken from storage by Tenant within thirty (30) days after expiration or
earlier termination of this Lease or Tenant's right to possession, shall at
Landlord's option be conclusively deemed to have been conveyed by Tenant to
Landlord as if by xxxx of sale without payment by Landlord. Unless prohibited by
applicable Law, Landlord shall have a lien against such property for the costs
incurred in removing and storing the same.
ARTICLE 14
HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, Tenant shall pay
Landlord 150% of the amount of Rent then applicable (or the highest amount
permitted by Law, whichever shall be less) prorated on per them basis for each
day Tenant shall retain possession of the Premises or any part thereof after
expiration or earlier termination of this Lease, together with all damages
sustained by Landlord on account thereof. The foregoing provisions shall not
serve as permission for Tenant to hold-over, nor serve to extend the Term
(although Tenant shall remain bound to comply, with all provisions of this Lease
until Tenant vacates the Premises, and shall be subject to the provisions of
Article 13). Notwithstanding the foregoing to the contrary, at any time before
or after expiration or earlier termination of the Lease. Landlord may serve
notice advising Tenant of the amount of Rent and other terms required, should
Tenant desire to enter a month-to-month tenancy (and if Tenant shall hold over
more than one full calendar month after such notice, Tenant shall thereafter be
deemed a month-to-month tenant, on the terms and provisions of this Lease then
in effect, as modified by Landlord's notice, and except that Tenant shall not be
entitled to any renewal or expansion rights contained in this Lease or any
amendments hereto).
ARTICLE 15
NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting
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any subsequent action. Acceptance of Rent by Landlord shall not constitute a
waiver of any breach by Tenant of any term or provision of this Lease. No
acceptance of a lesser amount than the Rent herein stipulated shall be deemed a
waiver of Landlord's right to receive the full amount due, nor shall any
endorsement or statement on any check or payment or any letter accompanying such
check or payment be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the full
amount due. The acceptance of Rent or of the performance of any other term or
provision from any Person other than Tenant, including any Transferee, shall not
constitute a waiver of Landlord's right to approve any transfer.
ARTICLE 16
ATTORNEYS' FEES AND JURY TRIAL
In the event of any litigation between the parties, the prevailing
party shall be entitled to obtain, as part of the judgment, all reasonable
attorneys' fees, costs and expenses incurred in connection with such
litigation. except as may be limited by applicable Law. In the interest of
obtaining a speedier and less costly hearing of any dispute, the parties
hereby each irrevocably waive the right to trial by jury.
ARTICLE 17
PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises, and any
Work to the Premises under Article 8. Whenever possible, Tenant shall cause
all such items to be assessed and billed separately from the property of
Landlord. In the event any such items shall be assessed and billed with the
property of Landlord, Tenant shall pay Landlord its share of such taxes,
charges or other governmental impositions within thirty (30) days after
Landlord delivers a statement and a copy of the assessment or other
documentation showing the amount of such impositions applicable to Tenant's
property. Tenant shall pay any rent tax or sales tax, service tax, transfer
tax or value added tax, or any other applicable tax on the Rent or services
herein or otherwise respecting this Lease.
ARTICLE 18
REASONABLE APPROVALS
Whenever Landlord's approval or consent is expressly required under
this Lease (including Article 21) or any other agreement between the parties,
Landlord shall not unreasonably withhold or delay such approval or consent
(reasonableness shall be a condition to Landlord's enforcement of such consent
or approval requirement, and not a covenant), except for matters affecting the
structure, safety or security of the Property, or the appearance of the Property
from any common or public areas.
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ARTICLE 19
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages (as defined in
Article 25) now or hereafter placed upon the Property, and all other
encumbrances and matters of public record applicable to the Property. If any
foreclosure proceedings are initiated by any Holder or a deed in lieu is granted
(or if any ground lease is terminated), Tenant agrees, upon written request of
any such Holder or any purchaser at foreclosure sale, to attorn and pay Rent to
such party and to execute and deliver any instruments necessary or appropriate
to evidence or effectuate such attornment (provided such Holder or purchaser
shall agree to accept this Lease and not disturb Tenant's occupancy, so long as
Tenant does not default and fail to cure within the time permitted hereunder).
However, in the event of attornment, no Holder shall be: (i) liable for any act
or omission of Landlord, or subject to any offsets or defenses which Tenant
might have against Landlord (prior to such Holder becoming Landlord under such
attornment), (ii) liable for any security deposit or bound by any prepaid Rent
not actually received by such Holder, or (iii) bound by any future modification
of this Lease not consented to by such Holder. Any Holder (as defined in Article
25) may elect to make this Lease prior to the lien of its Mortgage, by written
notice to Tenant, and it the Holder of any prior Mortgage shall require, this
Lease shall be prior to any subordinate Mortgage. Tenant agrees to give any
Holder by certified mail, return receipt requested, a copy of any notice of
default served by Tenant upon Landlord, provided that prior to such notice
Tenant has been notified in writing (by way of service on Tenant of a copy of an
assignment of leases, or otherwise) of the address of such Holder. Tenant
further agrees that if Landlord shall have failed to cure such default within
the times permitted Landlord for cure under this Lease, any such Holder whose
address has been provided to Tenant shall have an additional period of thirty
(30) days in which to cure (or such additional time as may be required due to
causes beyond such Holder's control, including time to obtain possession of the
Property by power of sale or judicial action). Tenant shall execute such
documentation as Landlord may reasonably request from time to time, in order to
confirm the matters set forth in this Article in recordable form.
ARTICLE 20
ESTOPPEL CERTIFICATE
Tenant shall from time to time, within twenty (20) days after written
request from Landlord, execute, acknowledge and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified, is in full force and effect (or if this Lease is claimed not to
be in force and effect, specifying the ground therefor) and any dates to which
the Rent has been paid in advance, and the amount of any Security Deposit, (ii)
acknowledging that there are not, to Tenants knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed,
and (iii) certifying such other matters as Landlord may reasonably request, or
as may be requested by Landlord's current or prospective Holders, insurance
carriers, auditors, and prospective purchasers. Any such statement may be relied
upon by any such parties. If Tenant shall fail to execute and return such
statement within the time required herein, Tenant shall be deemed to have agreed
with the matters set forth therein.
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Landlord shall from time to time, within twenty (20) days after written request
from Tenant, execute, acknowledge and deliver a statement (i) certifying that
this Lease is unmodified and in full force and effect or, if modified, stating
the nature of such modification and certifying that this Lease as so modified,
is in full force and effect (or if this Lease is claimed not to be in force and
effect, specifying the ground therefor) and any dates to which the Rent has been
paid in advance, and the amount of any Security Deposit, (ii) acknowledging that
there are not, to Landlord's knowledge, any uncured defaults on the part of
Tenant hereunder, or specifying such defaults if any are claimed, and (iii)
certifying such other matters as Tenant may reasonably request.
ARTICLE 21
ASSIGNMENT AND SUBLETTING
(A) TRANSFERS. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, as further described
below: (i) assign, mortgage, pledge, hypothecate, encumber, or permit any lien
to attach to, or otherwise transfer, this Lease or any interest hereunder, by
operation of law or otherwise, (ii) sublet the Premises or any part thereof, or
(iii) permit the use of the Premises by any Persons (as defined in Article 25)
other than Tenant and its employees (all of the foregoing are hereinafter
sometimes referred to collectively as "Transfers" and any Person to whom any
Transfer is made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). If Tenant shall desire Landlord's consent to any Transfer, Tenant
shall notify Landlord in writing, which notice shall include: (a) the proposed
effective date (which shall not be less than 30 nor more than 180 days after
Tenant's notice), (b) the portion of the Premises to be Transferred (herein
called the "Subject Space"), (c) the terms of the proposed Transfer and the
consideration therefor, the name and address of the proposed Transferee, and a
copy of all documentation pertaining to the proposed Transfer, and (d) current
financial statements of the proposed Transferee certified by an officer, partner
or owner thereof, and any other information to enable Landlord to determine the
financial responsibility, character, and reputation of the proposed Transferee,
nature of such Transferee's business and proposed use of the Subject Space, and
such other information as Landlord may reasonably require. Notwithstanding the
foregoing, no prior written consent of Landlord shall be necessary with respect
to any Transfer to an entity controlling, controlled by or under common control
with Tenant or the Transfer to an entity, which immediately after such Transfer
shall have a net worth equal to or greater than that of Tenant immediately prior
to such Transfer, in connection with the acquisition by such entity of
substantially all of the stock or assets of the Tenant such that the business
conducted by the Tenant prior to the Transfer will be conducted by the acquiring
entity; but in the event of any such Transfer with respect to which no consent
is required, Tenant shall, prior to such Transfer, notify Landlord thereof and
provide the information set forth in clauses (a) and (c) of the immediately
preceding sentence. Any Transfer made without complying with this Article shall,
at Landlord's option, be null, void and of no effect, or shall constitute a
Default under this Lease. Whether or not Landlord shall grant consent, Tenant
shall pay $300.00 towards Landlord's review and processing expenses, as well as
any reasonable legal fees incurred by Landlord, within thirty (30) days after
written request by Landlord.
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(B) APPROVAL. Landlord will not unreasonably withhold its consent (as
provided in Article 18) to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in Tenant's notice. The parties hereby agree
that it shall be reasonable under this Lease and under any applicable Law for
Landlord to withhold consent to any proposed Transfer where one or more of the
following applies (without limitation as to other reasonable grounds for
withholding consent): (i) the Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the Property,
or would be a significantly less prestigious occupant of the Property than
Tenant, (ii) the Transferee intends to use the Subject Space for purposes which
are not permitted under this Lease, (iii) the Subject Space is not regular in
shape with appropriate means of ingress and egress suitable for normal renting
purposes, (iv) the Transferee is either a government (or agency or
instrumentality thereof) or an occupant of the Property, (v) the proposed
Transferee does not have a reasonable financial condition in relation to the
obligations to be assumed in connection with the Transfer, or (vi) Tenant has
committed and failed to cure a Default at the time Tenant requests consent to
the proposed Transfer.
(C) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
Landlord fifty percent (50%) of any Transfer Premium derived by Tenant from such
Transfer. "Transfer Premium" shall mean all rent, additional rent or other
consideration paid by such Transferee in excess of the Rent payable by Tenant
under this Lease (on a monthly basis during the Term, and on a per rentable
square foot basis, if less than all of the Premises is transferred), after
deducting the reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, any other economic concessions or
services provided to the Transferee, and any customary brokerage commissions
paid in connection with the Transfer. If part of the consideration for such
Transfer shall be payable other than in cash, Landlord's share of such non-cash
consideration shall be in such form as is reasonably satisfactory to Landlord.
The percentage of the Transfer Premium due Landlord hereunder shall be paid
within ten (10) days after Tenant receives any Transfer Premium from the
Transferee.
(D) RECAPTURE. Notwithstanding anything to the contrary contained in
this Article, Landlord shall have the option, by, giving written notice to
Tenant within thirty (30) days after receipt of Tenant's notice of any proposed
Transfer, to recapture the Subject Space. Such recapture notice shall cancel and
terminate this Lease with respect to the Subject Space as of the date stated in
Tenant's notice as the effective date of the proposed Transfer (or at Landlord's
option. shall cause the Transfer to be made to Landlord or its agent, in which
case the parties shall execute the Transfer documentation promptly thereafter).
If this Lease shall be cancelled with respect to less than the entire Premises,
the Rent reserved herein shall be prorated on the basis of the number of
rentable square feet retained by Tenant in proportion to the number of rentable
square feet contained in the Premises, this Lease as so amended shall continue
thereafter in full force and effect, and upon request of either party, the
parties shall execute written confirmation of the same.
(E) TERMS OF CONSENT. If Landlord consent to a Transfer: (a) the terms
and conditions of this Lease, including among other things, Tenant's liability
for the Subject Space, shall in no way be deemed to have been waived or
modified, (b) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (c) Tenant shall deliver
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to Landlord promptly after execution, an original executed copy of all
documentation pertaining to the Transfer' in form reasonably acceptable to
Landlord, and (d) Tenant shall furnish upon Landlord's request a complete
statement, certified by an independent certified public accountant, or Tenant's
chief financial officer, setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such Transfer. Landlord or its
authorized representatives shall have the right at all reasonable times to audit
the books, records and papers of Tenant relating to any Transfer, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Tenant shall within thirty (30) days after
demand pay the deficiency, and if understated by more than 2%, Tenant shall pay
Landlord's costs of such audit. Any sublease hereunder shall be subordinate and
subject to the provisions of this Lease, and if this Lease shall be terminated
during the term of any sublease, Landlord shall have the right to: (i) treat
such sublease as cancelled and repossess the Subject Space by any lawful means,
or (ii) require that such subtenant attorn to and recognize Landlord as its
landlord under any such sublease. If Tenant shall Default and fail to cure
within the time permitted for cure under Article 23(A), Landlord is hereby
irrevocably authorized, as Tenant's agent and attorney-in-fact, to direct any
Transferee to make all payments under or in connection with the Transfer
directly to Landlord (which Landlord shall apply towards Tenant's obligations
under this Lease) until such Default is cured.
(F) CERTAIN TRANSFERS. For purposes of this Lease, the term "Transfer"
shall also include (a) if Tenant is a partnership or limited liability company,
the withdrawal or change, voluntary, involuntary or by operation of law, of a
majority of the partners or members, as the case may be, or a transfer of a
majority of partnership or membership interests, within a twelve month period,
or the dissolution of the partnership or limited liability company, and (b) if
Tenant is a closely held corporation (i.e., whose stock is not publicly held and
not traded through an exchange or over the counter), the dissolution, merger,
consolidation or other reorganization of Tenant, or within a twelve month
period: (i) the sale or other transfer of more than an aggregate of 50% of the
voting shares of Tenant (other than to immediate family members by reason of
gift or death) or (ii) the sale, mortgage, hypothecation or pledge of more than
an aggregate of 50% of Tenant's net assets. Notwithstanding any provisions of
this Article 21 to the contrary, however, the term "Transfer" shall not include
a sale of the stock of the corporate successor to the Tenant originally named
herein in connection with a public offering thereof.
ARTICLE 22
RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
(A) To change the name or street address of the Property; install and
maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances, keys to all doors within and into the
Premises: grant to any Person the right to conduct any business or render any
service at the Property, whether or not it is the same or similar to the use
permitted Tenant by this Lease; and have access for Landlord and other tenants
of the Property to
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any mail chutes located on the Premises according to the rules of the United
States Postal Service.
(B) To enter the Premises at reasonable hours for reasonable purposes,
including inspection and supplying cleaning service or other services to be
provided Tenant hereunder, to show the Premises to current and prospective
mortgage lenders, ground lessors, insurers, and prospective purchasers, tenants
and brokers, at reasonable hours, and if Tenant shall abandon the Premises at
any time, or shall vacate the same during the last 3 months of the Term, to
decorate, remodel, repair, or alter the Premises.
(C) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of tenants or
other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or other dangerous condition, or threat
thereof.
(D) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent building, structure, parking facility, land, street or alley (including
without limitation changes and reductions in corridors, lobbies, parking
facilities and other public areas and the installation of kiosks. planters,
sculptures, displays, escalators, mezzanines, and other structures, facilities,
amenities and features therein, and changes for the purpose of connection with
or entrance into or use of the Property in conjunction with any adjoining or
adjacent building or buildings, now existing or hereafter constructed). In
connection with such matters, or with any other repairs, maintenance,
improvements or alterations, in or about the Property, Landlord may erect
scaffolding and other structures reasonably required, and during such operations
may enter upon the Premises and take into and upon or through the Premises, all
materials required to make such repairs, maintenance, alterations or
improvements, and may close public entry ways, other public areas, restrooms,
stairways or corridors.
(E) Intentionally Omitted.
In connection with entering the Premises to exercise any of the
foregoing rights, Landlord shall: (a) provide reasonable advance written or oral
notice to Tenant's on-site manager or other appropriate person (except in
emergencies, or for routine cleaning or other routine matters), and (b) take
reasonable steps to minimize any interference with Tenant's business.
ARTICLE 23
LANDLORD'S REMEDIES
(A) DEFAULT. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant. which if not cured within any applicable
time permitted for cure below, shall give rise to Landlord's remedies set forth
Paragraph (B), below: (i) failure by Tenant to make when due any payment of
Rent, unless such failure is cured within ten (10) days after notice; (ii)
failure by Tenant to observe or perform any of the terms or conditions of this
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Lease to be observed or performed by Tenant other than the payment of Rent,
or as provided below, unless such failure is cured within thirty (30) days
after notice, or such shorter period expressly provided elsewhere in this
Lease (provided, if the nature of Tenant's failure is such that more time is
reasonably required in order to cure, Tenant shall not be in Default if
Tenant commences to cure within such period and thereafter reasonably seeks
to cure such failure to completion); (iii) failure by Tenant to comply with
the Rules, unless such failure is cured within five (5) days after notice
(provided, if the nature of Tenant's failure is such that more than five (5)
days time is reasonably required in order to cure, Tenant shall not be in
Default if Tenant commences to cure within such period and thereafter
reasonably seeks to cure such failure to completion); (iv) (a) making by
Tenant or any guarantor of this Lease ("Guarantor") of any general assignment
for the benefit of creditors, (b) filing by or against Tenant or any
Guarantor of a petition to have Tenant or such Guarantor adjudged a bankrupt
or a petition for reorganization or arrangement under any Law relating to
bankruptcy (unless, in the case of a petition filed against Tenant or such
Guarantor, the same is dismissed within sixty (60) days), (c) appointment of
a trustee or receiver to take possession of substantially all of Tenant's
assets located on the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days, (d) attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located on the Premises or of Tenant's interest in this Lease, (e) Tenant's
or any Guarantor's convening of a meeting of its creditors or any class
thereof for the purpose of effecting a moratorium upon or composition of its
debts, or (f) Tenant's or any Guarantor's insolvency or admission of an
inability to pay its debts as they mature; (v) any material misrepresentation
herein, or material misrepresentation or omission in any financial statements
or other materials provided by Tenant or any Guarantor in connection with
negotiating or entering this Lease UT in connection with any Transfer under
Article 21; (vi) cancellation of any guaranty of this Lease by any Guarantor;
(vii) failure by Tenant to cure within any applicable times permitted
thereunder any default under any other lease for space at the Property or any
other buildings owned or managed by Landlord or its affiliates, now or
hereafter entered by Tenant (and any Default hereunder not cured within the
times permitted for cure herein shall, at Landlord's election, constitute a
default under any such other lease or leases). Failure by Tenant to comply
with the same term or condition of this Lease on three occasions during any
twelve month period shall cause any failure to comply with such term or
condition during the succeeding twelve month period, at Landlord's option, to
constitute an incurable Default, if Landlord has given Tenant notice of each
such failure within ten (10) days after each such failure occurs. The notice
and cure periods provided herein are in lieu of, and not in addition to, any
notice and cure periods provided by Law.
(B) REMEDIES. If a Default occurs and is not cured within any
applicable time permitted under Paragraph (A), Landlord shall have the rights
and remedies hereinafter set forth, which shall be distinct, separate and
cumulative with and in addition to any other right or remedy allowed under any
Law or other provisions of this Lease:
(i) Landlord may terminate this Lease, repossess the Premises by
detainer suit, summary proceedings or other lawful means, and recover as
damages a sum of money equal to: (a) any unpaid Rent as of the termination
date including interest at the Default Rate (as defined in Article 25), (b)
any unpaid Rent which would have accrued after the termination date through
the time of award including interest at the Default Rate, less such loss of
Rent that Tenant proves could have been reasonably avoided, (c) any unpaid
Rent which would have accrued after the time of
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award during the balance of-the Term, less such loss of Rent that Tenant proves
could be reasonably avoided, and (d) any other amounts necessary to compensate
Landlord for all damages proximately caused by Tenant's failure to perform its
obligations under this Lease, including without limitation all Costs of
Reletting (as defined in Paragraph F). For purposes of computing the amount of
Rent herein that would have accrued after the time of award, Tenant's Prorata
Share of Taxes and Operating Expenses shall be projected, based upon the average
rate of increase, if any, in such items from the Commencement Date through the
time of award.
(ii) If applicable Law permits, Landlord may terminate Tenant's
right of possession and repossess the Premises by detainer suit, summary
proceedings or other lawful means, without terminating this Lease (and if
such Law permits, and Landlord shall not have expressly terminated the Lease
in writing, any termination shall be deemed a termination of Tenant's right
of possession only). In such event, Landlord may recover: (a) any unpaid Rent
as of the date possession is terminated, including interest at the Default
Rate, (b) any unpaid Rent which accrues during the Term from the date
possession is terminated through the time of award (or which may have accrued
from the time of any earlier award obtained by Landlord through the time of
award), including interest at the Default Rate, less any Net Re-Letting
Proceeds (as defined in Paragraph F) received by Landlord during such period,
and less such loss of Rent that Tenant proves could have been reasonably
avoided, and (c) any other amounts necessary to compensate Landlord for all
damages proximately caused by Tenant's failure to perform its obligations
under this Lease. including without limitation, all Costs of Reletting (as
defined in Paragraph F). Landlord may bring suits for such amounts or
portions thereof, at any time or times as the same accrue or after the same
have accrued, and no suit or recovery of any portion due hereunder shall be
deemed a waiver of Landlord's right to collect all amounts to which Landlord
is entitled hereunder, nor shall the same serve as any defense to any
subsequent suit brought for any amount not theretofore reduced to judgment.
(C) MITIGATION OF DAMAGES. If Landlord terminates this Lease or
Tenant's right to possession, Landlord shall use reasonable efforts to
mitigate Landlord's damages, and Tenant shall be entitled to submit proof of
such failure to mitigate as a defense to Landlord's claims hereunder, if
mitigation of damages by Landlord is required by applicable Law. If Landlord
has not terminated this Lease or Tenant's right to possession, Landlord shall
have no obligation to mitigate, and may permit the Premises to remain vacant
or abandoned; in such case, Tenant may seek to mitigate damages by attempting
to sublease the Premises or assign this Lease (subject to Article 21).
(D) SPECIFIC PERFORMANCE, COLLECTION OF RENT AND ACCELERATION.
Landlord shall at all times have the rights and remedies (which shall be
cumulative with each other and cumulative and in addition to those rights and
remedies available under Paragraph (B), above or any Law or other provision
of this Lease), without prior demand or notice except as required by
applicable Law: (i) to seek any declaratory, injunctive or other equitable
relief, and specifically enforce this Lease, or restrain or enjoin a
violation or breach of any provision hereof, and (ii) to xxx for and collect
any unpaid Rent which has accrued. Notwithstanding anything to the contrary
contained in this Lease, to the extent not expressly prohibited by applicable
Law, in the event of any Default by Tenant not cured within any applicable
time for cure hereunder, Landlord may terminate this Lease or Tenant's right
to possession and accelerate and declare that all Rent
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reserved for the remainder of the Term shall be immediately due and payable
(in which event, Tenant's Prorata Share of Taxes and Operating Expenses for
the remainder of the Term shall be projected based upon the average rate of
increase, if any, in such items from the Commencement Date through the date
of such declaration); provided, Landlord shall, after receiving payment of
the same from Tenant, be obligated to turn over to Tenant any actual Net
Re-Letting Proceeds thereafter received during the remainder of the Term, up
to the amount so received from Tenant pursuant to this provision.
(E) LATE CHARGES AND INTEREST. Tenant shall pay, as additional Rent, a
service charge of Two Hundred Dollars ($200.00) for bookkeeping and
administrative expenses, if Rent is not received within five (5) days after its
due date. In addition, any Rent paid more than five (5) days after due shall
accrue interest from the due date at the Default Rate (as defined in Article
25), until payment is received by Landlord. Such service charge and interest
payments shall not be deemed consent by Landlord to late payments, nor a waiver
of Landlord's right to insist upon timely payments at any time, nor a waiver of
any remedies to which Landlord is entitled as a result of the late payment of
Rent.
(F) CERTAIN DEFINITIONS. "Net Re-Letting Proceeds" shall mean the
total amount of rent and other consideration paid by any Replacement Tenants,
less all Costs of Re-Letting, during a given period of time. "Costs of
Re-Letting" shall include without limitation, all reasonable costs and
expenses incurred by Landlord for any repairs, maintenance, changes,
alterations and improvements to the Premises, brokerage commissions,
advertising costs, attorneys' fees, any customary free rent periods or
credits, tenant improvement allowances, take-over lease obligations and other
customary, necessary Or appropriate economic incentives required to enter
leases with Replacement Tenants, and costs of collecting rent from
Replacement Tenants. "Replacement Tenants" shall mean any Persons (as defined
in Article 25) to whom Landlord re-lets the Premises or any portion thereof
pursuant to this Article.
(G) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, relenting, acceptance of keys from Tenant, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release the Tenant
in whole or in part from any of Tenant's obligations hereunder, unless
express written notice of such intention is sent by Landlord or its agent to
Tenant. To the fullest extent permitted by Law, all rent and other
consideration paid by any Replacement Tenants shall be applied: first, to the
Costs of Re-Letting, second, to the payment of any Rent theretofore accrued,
and the residue, if any, shall be held by Landlord and applied to the payment
of other obligations of Tenant to Landlord as the same become due (with any
remaining residue to be retained by Landlord). Rent shall be paid without any
prior demand or notice therefor (except as expressly provided herein) and
without any deduction, set-off or counterclaim, or relief from any valuation
or appraisement laws. Landlord may apply payments received from Tenant to any
obligations of Tenant then accrued, without regard to such obligations as may
be designated by Tenant. Landlord shall be under no obligation to observe or
perform any provision of this Lease on its part to be observed or performed
which accrues after the date of any Default by Tenant hereunder not cured
within the times permitted hereunder. The times set forth herein for the
curing of Defaults by Tenant are of the essence of this Lease. Tenant hereby
irrevocably waives any right otherwise available under any Law to redeem or
reinstate this Lease.
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ARTICLE 24
LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any term or provision under this
Lease required to be performed by Landlord, Landlord shall not be deemed to
be in default hereunder nor subject to any claims for damages of any kind,
unless such failure shall have continued for a period of thirty (30) days
after written notice thereof by Tenant; provided, if the nature of Landlord's
failure is such that more than thirty (30) days are reasonably required in
order to cure, Landlord shall not be in default if Landlord commences to cure
such failure within such thirty (30) day period, and thereafter reasonably
seeks to cure such failure to completion. The aforementioned periods of time
permitted for Landlord to cure shall be extended for any period of time
during which Landlord is delayed in, or prevented from, curing due to fire or
other casualty, strikes, lock-outs or other labor troubles, shortages of
equipment or materials, governmental requirements, power shortages or
outages, acts or omissions by Tenant or other Persons, and other causes
beyond Landlord's reasonable control. If Landlord shall fail to cure within
the times permitted for cure herein, Landlord shall be subject to such
remedies as may be available to Tenant (subject to the other provisions of
this Lease); provided, in recognition that Landlord must receive timely
payments of Rent and operate the Property, Tenant shall have no right of
self-help to perform repairs or any other obligation of Landlord, and shall
have no right to withhold, set-off, or, except as hereinafter specifically
provided, xxxxx Rent. Notwithstanding the foregoing, if, due to a failure to
perform, Tenant can not operate its business from the Premises for ten (10)
business days, then Rent shall xxxxx for the period Tenant is unable to
operate its business from the Premises.
ARTICLE 25
CAPTIONS, DEFINITIONS AND SEVERABILITY
The captions of the Articles and Paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it shall not affect,
impair or invalidate any other terms or provisions hereof, or its enforceability
with respect to any other Person, the parties hereto agreeing that they would
have entered into the remaining portion of this Lease notwithstanding the
emission of the portion or portions adjudged invalid, void, illegal, or
unenforceable with respect to such Person.
(A) "Building" shall mean the structure identified in Article 1 of
this Lease.
(B) Intentionally Omitted.
(C) "Default Rate" shall mean fifteen percent (15%) per annum, or the
highest rate permitted by applicable Law, whichever shall be less.
(D) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
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(E) "Holidays" shall mean all federally observed holidays, including
New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Veterans' Day, Thanksgiving Day, Christmas Day, and to the extent of utilities
or services provided by union members engaged at the Property, such other
holidays observed by such unions.
(F) "Landlord" and "Tenant" shall be applicable to one or more Persons
as the case may be, and the singular shall include the plural, and the neuter
shall include the masculine and feminine, and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
(G) "Law" shall mean all federal, state, county and local governmental
and municipal laws, statutes, ordinances. rules, regulations, codes, decrees,
orders and other such requirements, applicable equitable remedies and decisions
by courts in cases where such decisions are considered binding precedents in the
state in which the Property is located, and decisions of federal courts applying
the Laws of such State.
(H) "Mortgage" shall mean all mortgages, deeds of trust, ground leases
and other such encumbrances now or hereafter placed upon the Property or
Building, or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(I) "Operating Expenses" shall mean all expenses, costs and amounts
(other than Taxes) of every kind and nature which Landlord shall pay during
any calendar year any portion of which occurs during the Term, because of or
in connection with the ownership, management, repair, maintenance,
restoration and operation of the Property, including without limitation, any
amounts paid for: (a) utilities for the Property, including but not limited
to electricity, power, gas, steam, oil or other fuel, water, sewer, lighting,
heating, air conditioning and ventilating, (b) permits, licenses and
certificates necessary to operate, manage and lease the Property, (c)
insurance applicable to the Property, not limited to the amount of coverage
Landlord is required to provide under this Lease, (d) supplies, tools,
equipment and materials used in the operation, repair and maintenance of the
Property, (e) accounting, legal, inspection, consulting, concierge and other
services, (f) any equipment rental (or installment equipment purchase or
equipment financing agreements), or management agreements (including the cost
of any management fee actually paid thereunder and the fair rental value of
any office space provided thereunder, up to customary and reasonable
amounts), (g) wages, salaries and other compensation and benefits (including
the fair value of any parking privileges provided) for all persons engaged in
the operation, maintenance or security of the Property, and employer's Social
Security taxes, unemployment taxes or insurance, and any other taxes which
may be levied on such wages, salaries, compensation and benefits, (h)
payments under any easement, operating agreement, declaration, restrictive
covenant, or instrument pertaining to the sharing of costs in any planned
development, and (i) operation, repair, and maintenance of all Systems and
Equipment and components thereof (including replacement of components),
janitorial service, alarm and security service, window cleaning, trash
removal, elevator maintenance, cleaning of walks, parking facilities and
building walls, removal of ice and snow, replacement of wall and floor
coverings, ceiling tiles and fixtures in lobbies, corridors, restrooms and
other common or public areas or
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facilities, maintenance and replacement of shrubs, trees, grass, sod and
other landscaped items, irrigation systems, drainage facilities, fences,
curbs, and walkways, re-paving and re-striping parking facilities, and roof
repairs. If the Property is not fully occupied during all or a portion of any
calendar year, Landlord may, in accordance with sound accounting and
management practices, determine the amount of variable Operating Expenses
(i.e. those items which vary according to occupancy levels) that would have
been paid had the Property been fully occupied, and the amount so determined
shall be deemed to have been the amount of variable Operating Expenses for
such year. If Landlord makes such an adjustment, Landlord shall make a
comparable adjustment for the Base Expense Year. Notwithstanding the
foregoing, Operating Expenses shall not, however, include:
(i) depreciation, interest and amortization on Mortgages, and other debt
costs or ground lease payments, if any: legal fees in connection with
leasing, tenant disputes or enforcement of leases; real estate brokers'
leasing commissions; improvements or alterations to tenant spaces; the cost
of providing any service directly to and paid directly by, any tenant; any
costs expressly excluded from Operating Expenses elsewhere in this Lease;
costs of any items to the extent Landlord receives reimbursement from
insurance proceeds or from a third party (such proceeds to be deducted from
Operating Expenses in the year in which received); and
(ii) capital expenditures, except those: (a) made primarily to reduce
Operating Expenses, or to comply with any Laws or other governmental
requirements, or (b) for replacements (as opposed to additions or new
improvements) of non-structural items located in the common areas of the
Property required to keep such areas in good condition; provided, all such
permitted capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over the shorter of: (i) their
useful lives, or (ii) the period during which the reasonably estimated
savings in Operating Expenses equals the expenditures.
(J) "Person" shall mean an individual, trust, partnership, joint
venture, association, corporation, and any other entity.
(K) "Property" shall mean the Building, and any common or public areas
or Facilities, easements, corridors, lobbies, sidewalks, loading areas,
driveways, landscaped areas, skywalks, parking garages and lots, and any and all
other structures or facilities operated or maintained in connection with or for
the benefit of the Building, and all parcels or tracts of land on which all or
any portion of the Building or any of the other foregoing items are located, and
any fixtures, machinery, equipment, apparatus, Systems and Equipment, furniture
and other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. Possession of
areas necessary for utilities, services, safety and operation of the Property,
including the Systems and Equipment (as defined in Article 25), fire stairways,
perimeter walls, space between the finished ceiling of the Premises and the slab
of the floor or roof of the Property thereabove, and the use thereof together
with the right to install, maintain, operate, repair and replace the Systems and
Equipment, including any of the same in, through, under or above the Premises in
locations that will not materially interfere with Tenant's use of the Premises,
are hereby excepted and reserved by Landlord, and not demised to Tenant. If the
Building shall be part of a complex, development or group of buildings or
structures collectively owned or managed by Landlord or its affiliates or
collectively managed by Landlord's managing agent, the Property shall, at
Landlord's option also be deemed to include such other of those buildings or
structures as Landlord shall from time to time designate, and shall initially
include such buildings and structures (and related facilities and parcels on
which the same are located) as
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Landlord shall have incorporated by reference to the total square footage of the
Property in Article 1.
(L) "Rent" shall have the meaning specified therefor in Article 3(G).
(M) "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply heat, ventilation, air conditioning and humidity or
any other services or utilities, or comprising or serving as any component or
portion of the electrical, gas, steam, plumbing, sprinkler, communications,
alarm, security, or fire/life/safety systems or equipment, or any other
mechanical, electrical, electronic, computer or other systems or equipment for
the Property.
(N) "Taxes" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary
(including without limitation, real estate taxes, general and special
assessments, transit taxes, water and sewer rents, taxes based upon the
receipt of rent including gross receipts or sales taxes applicable to the
receipt of rent or service or value added taxes (unless required to be paid
by Tenant under Article 17), personal property taxes imposed upon the
fixtures, machinery, equipment. apparatus, Systems and Equipment,
appurtenances, furniture and other personal property used in connection with
the Property which Landlord shall pay during any calendar year, any portion
of which occurs during the Term (without regard to any different fiscal year
used by such government or municipal authority) because of or in connection
with the ownership, leasing and operation of the Property. Notwithstanding
the foregoing, there shall be excluded from Taxes all excess profits taxes,
franchise taxes, gift taxes, capital stock taxes, inheritance and succession
taxes, estate taxes, federal and state income taxes, and other taxes to the
extent applicable to Landlord's general or net income (as opposed to rents,
receipts or income attributable to operations at the Property). If the method
of taxation of real estate prevailing at the time of execution hereof shall
be, or has been altered, so as to cause the whole or any part of the taxes
now, hereafter or heretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital
levy or otherwise, or on or measured by the rents received therefrom, then
such new or altered taxes attributable to the Property shall be included
within the term "Taxes," except that the same shall not include any
enhancement of said tax attributable to other income of Landlord. Any
expenses incurred by Landlord in attempting to protest, reduce or minimize
Taxes shall be included in Taxes in the calendar year such expenses are paid.
Tax refunds shall be deducted from Taxes in the year they are received by
Landlord, but if such refund shall relate to taxes paid in a prior year of
the Term, and the Lease shall have expired, Landlord shall mail Tenant's
Prorata Share of such net refund (after deducting expenses and attorneys'
fees), up to the amount Tenant paid towards Taxes during such year, to
Tenant's last known address. If Taxes for the Base Tax Year are reduced as
the result of protest, or by means of agreement, or as the result of legal
proceedings or otherwise, Landlord may adjust Tenant's obligations for Taxes
in all years following the Tax Base Year, and Tenant shall pay Landlord
within 30 days after notice any additional amount required by such adjustment
for any such years or portions thereof that have theretofore occurred. If
Taxes for any period during the Term or any extension thereof, shall be
increased after payment thereof by Landlord, for any reason including without
limitation error or reassessment by applicable governmental or municipal
authorities, Tenant shall pay Landlord upon demand Tenant's Prorata Share of
such increased Taxes. Tenant shall pay increased Taxes whether Taxes
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are increased as a result of increases in the assessments or valuation of the
Property (whether based on a sale, change in ownership or refinancing of the
Property or otherwise), increases in the tax rates, reduction or elimination
of any rollbacks or other deductions available under current law, scheduled
reductions of any tax abatement, as a result of the elimination, invalidity
or withdrawal of any tax abatement, or for any other cause whatsoever.
(O) "Tenant's Prorata Share" of Taxes and Operating Expenses shall
be the rentable area of the Premises divided by the rentable area of the
Property on the last day of the calendar year for which Taxes or Operating
Expenses are being determined, excluding any parking facilities. Tenant
acknowledges that the "rentable area of the Premises" under this Lease
includes the usable area, without deduction for columns or projections,
multiplied by a load or conversion factor, to reflect a share of certain
areas, which may include lobbies, corridors, mechanical, utility, janitorial,
boiler and service rooms and closets, restrooms, and other public, common and
service areas. Except as provided expressly to the contrary herein, the
"rentable area of the Property" shall include all rentable area of all space
leased or available for lease at the Property, which Landlord may reasonably
re-determine from time to time, to reflect re-configurations, additions or
modifications to the Property. If the Property or any development of which it
is a part, shall contain non-office uses, Landlord shall have the right to
determine in accordance with sound accounting and management principles,
Tenant's Prorata Share of Taxes and Operating Expenses for only the office
portion of the Property or of such development, in which event, Tenant's
Prorata Share shall be based on the ratio of the rentable area of the
Premises to the rentable area of such office portion. Similarly, if the
Property shall contain tenants who do not participate in all or certain
categories of Taxes or Operating Expenses on a prorata basis, Landlord may
exclude the amount of Taxes or Operating Expenses, or such categories of the
same, as the case may be, attributable to such tenants, and exclude the
rentable area of their premises, in computing Tenant's Prorata Share. If the
Property shall be part of or shall include a complex, development or group of
buildings or structures collectively owned or managed by Landlord or its
affiliates or collectively managed by Landlord's managing agent, Landlord may
allocate Taxes and Operating Expenses within such complex, development or
group, and between such buildings and structures and the parcels on which
they are located, in accordance with sound accounting and management
principles. In the alternative, Landlord shall have the right to determine,
in accordance with sound accounting and management principles, Tenant's
Prorata Share of Taxes and Operating Expenses based upon the totals of each
of the same for all such buildings and structures, the land constituting
parcels on which the same are located, and all related facilities, including
common areas and easements, corridors, lobbies, sidewalks, elevators, loading
areas, parking facilities and driveways and other appurtenances and public
areas, in which event Tenant's Prorata Share shall be based on the ratio of
the rentable area of the Premises to the rentable area of all such buildings,
ARTICLE 26
CONVEYANCE BY LANDLORD AND LIABILITY
In case Landlord or any successor owner of the Property or the Building
shall convey or otherwise dispose of any portion thereof in which the Premises
are located, to another Person (and nothing herein shall be construed to
restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be deemed to
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have fully assumed and be liable for all obligations of this Lease to be
performed by Landlord which first arise after the date of conveyance,
including the return of any Security Deposit, and Tenant shall attorn to such
other Person, and Landlord or such successor owner shall, from and after the
date of conveyance, be free of all liabilities and obligations hereunder not
then incurred. The liability of Landlord to Tenant for any default by
Landlord under this Lease or arising in connection herewith or with
Landlord's operation, management, leasing, repair, renovation, alteration, or
any other matter relating to the Property or the Premises, shall be limited
to the interest of Landlord in the Property (and the rental proceeds
thereof). Tenant agrees to look solely to Landlord's interest in the Property
(and the rental proceeds thereof) for the recovery of any judgment against
Landlord, and Landlord shall not be personally liable for any such judgment
or deficiency after execution thereon. The limitations of liability contained
in this Article shall apply equally and inure to the benefit of Landlord's
present and future partners, beneficiaries, officers, directors, trustees,
shareholders. agents and employees, and their respective partners, heirs,
successors and assigns. Under no circumstances shall any present or future
general or limited partner of Landlord (if Landlord is a partnership), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust)
have any liability for the performance of Landlord's obligations under this
Lease. Notwithstanding the foregoing to the contrary, Landlord shall have
personal liability for insured claims, beyond Landlord's interest in the
Property (and rental proceeds thereof), to the extent of Landlord's liability
insurance coverage available for such claims.
ARTICLE 27
INDEMNIFICATION
Except to the extent arising from the intentional or grossly negligent
acts of Landlord or Landlord's agents or employees, Tenant shall defend,
indemnify and hold harmless Landlord from and against any and all claims,
demands, liabilities, damages, judgments, orders, decrees, actions, proceedings,
fines, penalties, costs and expenses, including without limitation, court costs
and attorneys' fees arising from or relating to any loss of life, damage or
injury to person, property or business occurring in or from the Premises, or
caused by or in connection with any violation of this Lease or use of the
Premises or Property by, or any other act or omission of, Tenant, any other
occupant of the Premises, or any of their respective agents, employees,
contractors or guests. Without limiting the generality of the foregoing, Tenant
specifically acknowledges that the indemnity undertaking herein shall apply to
claims in connection with or arising out of any "Work" as described in Article
8, the installation, maintenance, use or removal of any "Lines" located in or
serving the Premises as described in Article 29, and the transportation, use,
storage, maintenance, generation, manufacturing, handling, disposal, release or
discharge of any "Hazardous Material" as described in Article 30 (whether or not
any of such matters shall have been theretofore approved by Landlord), except to
the extent that any of the same arises from the intentional or grossly negligent
acts of Landlord or Landlord's agents or employees.
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ARTICLE 28
SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS
The parties acknowledge that safety and security devices, services
and programs provided by Landlord, if any, while intended to deter crime and
ensure safety, may not in given instances prevent theft or other criminal
acts, or ensure safety of persons or property, The risk that any safety or
security device, service or program may not be effective, or may malfunction,
or be circumvented by a criminal, is assumed by Tenant with respect to
Tenant's property and interests, and Tenant shall obtain insurance coverage
to the extent Tenant desires protection against such criminal acts and other
losses, as further described in Article 11. Tenant agrees to cooperate in any
reasonable safety or security program developed by Landlord or required by
Law.
ARTICLE 29
COMMUNICATIONS AND COMPUTER LINES
Tenant may install, maintain, replace, remove or use any
communications or computer wires, cables and related devices (collectively
the "Lines") at the Property in or serving the Premises, provided: (a) Tenant
shall obtain Landlord's prior written consent, use an experienced and
qualified contractor approved in writing by Landlord, and comply with all of
the other provisions of Article 8, (b) any such installation, maintenance,
replacement, removal or use shall comply with all Laws applicable thereto and
good work practices, and shall not interfere with the use of any then
existing Lines at the Property, (c) an acceptable number of spare Lines and
space for additional Lines shall be maintained for existing and future
occupants of the Property, as determined in Landlord's reasonable opinion,
(d) if Tenant at any time uses any equipment that may create an
electromagnetic field exceeding the normal insulation ratings of ordinary
twisted pair riser cable or cause radiation higher than normal background
radiation, the Lines therefor (including riser cables) shall be appropriately
insulated to prevent such excessive electromagnetic fields or radiation, (e)
as a condition to permitting the installation of new Lines, Landlord may
require that Tenant remove existing Lines located in or serving the Premises,
(f) Tenant's rights shall be subject to the rights of any regulated telephone
company, and (g) Tenant shall pay all costs in connection therewith. Landlord
reserves the right to require that Tenant remove any Lines located in or
serving the Premises which are installed in violation of these provisions, or
which are at any time in violation of any Laws or represent a dangerous or
potentially dangerous condition (whether such Lines were installed by Tenant
or any other party), within three (3) days after written notice.
Landlord may (but shall not have the obligation to): (i) install new
Lines at the Property (ii) create additional space for Lines at the Property,
and (iii) reasonably direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic
re-allocation of available space (if any) for, and the allocation of excess
capacity (if any) on, any Lines now or hereafter installed at the Property by
Landlord, Tenant or any other party (but Landlord shall have no right to
monitor or control the information transmitted through such Lines). Such
rights shall not be in limitation of other rights that may be available to
Landlord by Law or otherwise. If Landlord exercises any such rights, Landlord
may charge Tenant for the
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costs attributable to Tenant, or may include those costs and all other costs
in Operating Expenses under Article 25 (including without limitation, costs
for acquiring and installing Lines and risers to accommodate new Lines and
spare Lines, any associated computerized system and software for maintaining
records of Line connections, and the fees of any consulting engineers and
other experts); provided, any capital expenditures included in Operating
Expenses hereunder shall be amortized (together with reasonable finance
charges) over the period of time prescribed by Article 25.
Notwithstanding anything to the contrary contained in Article 13,
Landlord reserves the right to require that Tenant remove any or all Lines
installed by or for Tenant within or serving the Premises upon termination of
this Lease, provided Landlord notifies Tenant prior to or within thirty (30)
days following such termination. Any Lines not required to be removed
pursuant to this Article shall, at Landlord's option, become the property of
Landlord (without payment by Landlord). If Tenant fails to remove such Lines
as required by Landlord, or violates any other provision of this Article,
Landlord may, after twenty (20) days written notice to Tenant, remove such
Lines or remedy such other violation, at Tenant's expense (without limiting
Landlord's other remedies available under this Lease or applicable Law).
Tenant shall not, without the prior written consent of Landlord in each
instance, grant to any third party a security interest or lien in or on the
Lines, and any such security interest or lien granted without Landlord's
written consent shall be null and void. Except to the extent arising from the
intentional or negligent acts of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising from, and Landlord does
not warrant that the Tenant's use of any Lines will be free from the
following (collectively called "Line Problems-): (x) any eavesdropping or
wire-tapping by unauthorized parties, (y) any failure of any Lines to satisfy
Tenant's requirements, or (z) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, replacement, use or removal of Lines by or for other tenants or
occupants at the Property, by any failure of the environmental conditions or
the power supply for the Property to conform to any requirements for the
Lines or any associated equipment, or any other problems associated with any
Lines by any other cause. Under no circumstances shall any Line Problems be
deemed an actual or constructive eviction of Tenant, render Landlord liable
to Tenant for abatement of Rent, or relieve Tenant from performance of
Tenant's obligations under this Lease. Landlord in no event shall be liable
for damages by reason of loss of profits, business interruption or other
consequential damage arising from any Line Problems.
ARTICLE 30
HAZARDOUS MATERIALS
Tenant shall not transport, use, store, maintain, generate,
manufacture, handle, dispose, release or discharge any "Hazardous Material"
(as defined below) upon or about the Property, or permit Tenant's employees,
agents, contractors, and other occupants of the Premises to engage in such
activities upon or about the Property. However, the foregoing provisions
shall not prohibit the transportation to and from, and use, storage,
maintenance and handling within, the Premises of substances customarily used
in offices (or such other business or activity expressly permitted to be
undertaken in the Premises under Article 6), provided: (a) such substances
shall be used and maintained only in such quantities as are reasonably
necessary for such permitted use of the Premises, strictly in accordance with
applicable Law and the manufacturers' instructions therefor,
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(b) such substances shall not be disposed of, released or discharged on the
Property, and shall be transported to and from the Premises in compliance with
all applicable Laws, and as Landlord shall reasonably require, (c) if any
applicable Law or Landlord's trash removal contractor requires that any such
substances be disposed of separately from ordinary trash, Tenant shall make
arrangements at Tenant's expense for such disposal directly with a qualified and
licensed disposal company at a lawful disposal site (subject to scheduling and
approval by Landlord), and shall ensure that disposal occurs frequently enough
to prevent unnecessary storage of such substances in the Premises, and (d) any
remaining such substances shall be completely, properly and lawfully removed
from the Property upon expiration or earlier termination of this Lease.
Tenant shall promptly notify Landlord of: (i) any enforcement, cleanup
or other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on the Premises
or the migration thereof from or to other property, (ii) any demands or claims
made or threatened by any party against Tenant or the Premises relating to any
loss or injury resulting from any Hazardous Material, (iii) any release,
discharge or nonroutine, improper or unlawful disposal or transportation of any
Hazardous Material on or from the Premises, and (iv) any matters where Tenant is
required by Law to give a notice to any governmental or regulatory authority
respecting any Hazardous Material on the Premises. Landlord shall have the right
(but not the obligation) to join and participate as a party in any legal
proceedings or actions affecting the Premises initiated in connection with any
environmental, health or safety Law. At such times as Landlord may reasonably
request, Tenant shall provide Landlord with a written list identifying any
Hazardous Material then used, stored, or maintained upon the Premises, the use
and approximate quantity of each such material, a copy of any material safety
data sheet ("MSDS") issued by the manufacturer therefor, written information
concerning the removal, transportation and disposal of the same, and such other
information as Landlord may reasonably require or as may be required by Law. The
term "Hazardous Material" for purposes hereof shall mean any chemical,
substance, material or waste or component thereof which is now or hereafter
listed, defined or regulated as a hazardous or toxic chemical, substance,
material or waste or component thereof by any federal, state or local governing
or regulatory body having jurisdiction, or which would trigger any employee or
community "right-to-know" requirements adopted by any such body, or for which
any such body has adopted any requirements for the preparation or distribution
of an MSDS.
If any Hazardous Material is released, discharged or disposed of by
Tenant or any other occupant of the Premises, or their employees, agents or
contractors, on or about the Property in violation of the foregoing
provisions, Tenant shall immediately, properly and in compliance with
applicable Laws clean up and remove the Hazardous Material from the Property
and any other affected property and clean or replace any affected personal
property (whether or not owned by Landlord), at Tenant's expense. Such clean
up and removal work shall be subject to Landlord's prior written approval
(except in emergencies), and shall include, without limitation, any testing,
investigation, and the preparation and implementation of any remedial action
plan required by any governmental body having jurisdiction or reasonably
required by Landlord. If Tenant shall fail to comply with the provisions of
this Article within five (5) days after written notice by Landlord, or such
shorter time as may be required by Law or in order to minimize any hazard to
Persons or property, Landlord may (but shall not be obligated to) arrange for
such compliance directly or as Tenant's agent through contractors or other
parties selected by Landlord, at Tenant's expense (without limiting
Landlord's other remedies under this Lease or applicable Law). If any
-29-
Hazardous Material is released, discharged or disposed of on or about the
Property and such release, discharge or disposal is not caused by Tenant or
other occupants of the Premises, or their employees, agents or contractors, such
release, discharge or disposal shall be deemed casualty damage under Article 10
to the extent that the Premises or common areas serving the Premises are
affected thereby; in such case, Landlord and Tenant shall have the obligations
and rights respecting such casualty damage provided under Article 10.
ARTICLE 31
MISCELLANEOUS
(A) Each of the terms and provisions of this Lease shall be binding
upon and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, successors and assigns,
subject to the provisions of Article 21 respecting Transfers.
(B) This Lease shall not be recorded by Tenant. However, at Tenant's
request, Landlord will execute a short form of lease, in recordable form and
acceptable to Landlord, sufficient to give notice to third parties of this
Lease, the term thereof and the option hereunder.
(C) This Lease shall be construed in accordance with the Laws of the
state in which the Property is located.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier termination of
this Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and
performs the terms and provisions hereunder, and subject to all other terms
and provisions of this Lease, Tenant shall hold and enjoy the Premises during
the Term, free of lawful claims by any Person acting by or through Landlord.
(F) This Lease does not grant any legal rights to "light and air"
outside the Premises nor any particular view or cityscape visible from the
Premises.
(G) If the Commencement Date is delayed in accordance with Article 4
for more than one year, Landlord may declare this Lease null and void, and if
the Commencement Date is so delayed for more than seven years, this Lease shall
thereupon become null and void without further action by either party.
ARTICLE 32
OFFER
The submission and negotiation of this Lease shall not be deemed an
offer to enter the same by Landlord, but the solicitation of such an offer by
Tenant. Tenant agrees that its execution of this Lease constitutes a firm offer
to enter the same which may not be withdrawn for a period of 30 days after
delivery to Landlord (or such other period as may be expressly provided in any
other agreement signed by the parties). During such period and in reliance on
-30-
the foregoing, Landlord may, at Landlord's option (and shall, if required by
applicable Law), deposit any security deposit and Rent, and proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
ARTICLE 33
NOTICES
Except as expressly provided to the contrary in this Lease, every
notice or other communication to be given by either party to the other with
respect hereto or to the Premises or Property, shall be in writing and shall not
be effective for any purpose unless the same shall be served personally or by
national air courier service, or United States certified mail, return receipt
requested, postage prepaid, addressed, if to Tenant, at the address first set
forth in the Lease, until the Commencement Date, and thereafter to the Tenant at
the Premises, and if to Landlord, at the address at which the last payment of
Rent was required to be made and to JMB Realty Corporation at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, Attn: Legal Department, or such other address
or addresses as Tenant or Landlord may from time to time designate by notice
given as above provided. Every notice or other communication hereunder shall be
deemed to have been given as of the third business day following the date of
such mailing (or as of any earlier date evidenced by a receipt from such
national air courier service or the United States Postal Service) or immediately
if personally delivered. Notices not sent in accordance with the foregoing shall
be of no force or effect until received by the foregoing parties at such
addresses required herein.
ARTICLE 34
REAL ESTATE BROKERS
Tenant represents that Tenant has dealt only with Hunneman Commercial
Company and Xxxxx Xxxxxx LLC (whose commission, if any, shall be paid by
Landlord pursuant to separate agreement) as broker, agent or finder in
connection with this Lease and agrees to indemnify and hold Landlord harmless
from all damages, judgments, liabilities and expenses (including reasonable
attorneys' fees) arising from any claims or demands of any other broker,
agent or finder with whom Tenant has dealt (other than brokers engaged by
Landlord, if any, with whom Tenant may have dealt) for any commission or fee
alleged to be due in connection with its participation in the procurement of
Tenant or the negotiation with Tenant of this Lease.
ARTICLE 35
SECURITY DEPOSIT - See Rider Six
-31-
ARTICLE 36
ENTIRE AGREEMENT
This Lease, together with Riders One through Seven and Exhibits A
through B, (WHICH COLLECTIVELY ARE, HEREBY INCORPORATED WHERE REFERRED TO
HEREIN AND MADE A PART HEREOF AS THOUGH FULLY SET FORTH), contains all the
terms and provisions between Landlord and Tenant relating to the matters set
forth herein and no prior or contemporaneous agreement or understanding
pertaining to the same shall be of any force or effect, except any such
contemporaneous agreement specifically referring to and modifying this Lease,
signed by both parties. Without limitation as to the generality of the
foregoing, Tenant hereby acknowledges and agrees that Landlord's leasing
agents and field personnel are only authorized to show the Premises and
negotiate terms and conditions for leases subject to Landlord's final
approval, and are not authorized to make any agreements, representations,
understandings or obligations, binding upon Landlord, respecting the
condition of the Premises or Property, suitability of the same for Tenant's
business, or any other matter, and no such agreements, representations,
understandings or obligations not expressly contained herein or in such
contemporaneous agreement shall be of any force or effect. Neither this
Lease, nor any Riders or Exhibits referred to above may be modified, except
in writing signed by both parties.
WITNESS; ATTESTATION
(Two for each signatory required if Property is LANDLORD:
in Florida or Ohio):
000 XXXXXXXX XXXXXX BUILDING
/s/ XXXXX X. BLEIMEKE Boston, MA
---------------------------------------
000 XXXXXXXX XXXXXX ASSOCIATES
--------------------------------------- TRUSTS, a Massachusetts Business Trust
By:/s/ [illegible]
------------------------------------
Trustee
TENANT:
/s/ [illegible]
--------------------------------------- CORECHANGE LLC
--------------------------------------- By: /s/ Xxx Xxxxxx
-----------------------------------------
-32-
CERTIFICATE
(if Tenant is a Corporation)
I,_________________, Secretary of_________________________ Tenant,
hereby certify that the officer(s) executing the foregoing Lease on behalf of
Tenant was/were duly authorized to act in his/their capacities as and his/their
action(s) are the action of Tenant.
(Corporate Seal)
-----------------------------
Secretary
IF TENANT PAYS FOR ALL ELECTRICITY IN PREMISES, OR FOR SEPARATE HVAC, E.G. BASED
ON SUB-METERS, USE JMB RIDER 112, 112A OR 112B.
-33-
RIDER ONE
RULES
(1) On Saturdays, Sundays and Holidays, and on other days between
the hours of 6:00 P.M. and 8:00 A.M. the following day, or such other hours
as Landlord shall determine from time to time, access to the Property and./or
to the passageways, entrances. exits. shipping areas. halls, corridors,
elevators or stairways and other areas in the Property may be restricted and
access gained by use of a key to the outside doors of the Property, or
pursuant to such security procedures Landlord may from time to time impose.
All such areas, and all roofs, are not for use of the general public and
Landlord shall in all cases retain the right to control and prevent access
thereto by all persons whose presence in the judgment of Landlord shall be
prejudicial to the safety, character, reputation and interests of the
Property and its tenants provided, however, that nothing herein contained
shall be construed to prevent such access to persons with whom Tenant deals
in the normal course of Tenant's business unless such persons are engaged in
activities which are illegal or violate these Rules. No Tenant and no
employee or invitee of Tenant shall enter into areas reserved for the
exclusive use of Landlord, its employees or invitees. Tenant shall keep doors
to corridors and lobbies closed except when persons are entering or leaving.
(2) Tenant shall not paint, display, inscribe, maintain or affix any
sign, placard, picture, advertisement, name, notice, lettering or direction on
any part of the outside or inside of the Property, or on any part of the inside
of the Premises which can be seen from the outside of the Premises, without the
prior consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as may be first approved by
Landlord in writing. Landlord shall prescribe the suite number and
identification sign for the Premises (which shall be prepared and installed by
Landlord at Tenant's expense). Landlord reserves the right to remove at Tenant's
expense all matter not so installed or approved without notice to Tenant.
(3) Tenant shall not in any manner use the name of the Property for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Property, in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material without Landlord's
express consent in writing.
(4) Tenant shall not place anything or allow anything to be placed in
the Premises near the glass of any door, partition, wall or window which may be
unsightly from outside the Premises, and Tenant shall not place or permit to be
placed any article of any kind on any window ledge or on the exterior walls.
Blinds, shades, awnings or other forms of inside or outside window ventilators
or similar devices, shall not be placed in or about the outside windows in the
Premises except to the extent, if any, that the character, shape, color,
material and make thereof is first approved by the Landlord.
(5) Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Property only at times and in the manner
designated by Landlord, and always at the Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use of freight elevators after or
before normal business hours. All damage done to the Property by
-1-
moving or maintaining such furniture, freight or articles shall be repaired by
Landlord at Tenant's expense. Landlord may inspect items brought into the
Property or Premises with respect to weight or dangerous nature. Landlord may
require that all furniture, equipment, cartons and similar articles removed from
the Premises or the Property be listed and a removal permit therefor first be
obtained from Landlord. Tenant shall not take or permit to be taken in or out of
other entrances or elevators of the Property, any item normally taken, or which
Landlord otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Tenant shall not allow anything to remain in or
obstruct in any way, any lobby, corridor, sidewalk, passageway, entrance, exit,
hall, stairway, shipping area, or other such area. Tenant shall move all
supplies, furniture and equipment as soon as received directly to the Premises,
and shall move all such items and waste (other than waste customarily removed by
Property employees) that are at any time being taken from the Premises directly
to the areas designated for disposal. Any hand-carts used at the Property shall
have rubber wheels.
(6) Tenant shall not overload any floor or part thereof in the
Premises, or Property, including any public corridors or elevators therein
bringing in or removing any large or heavy articles, and Landlord may direct and
control the location of safes and all other heavy articles and require
supplementary supports at Tenant's expense of such material and dimensions as
Landlord may deem necessary to properly distribute the weight.
(7) Tenant shall not attach or permit to be attached additional locks
or similar devices to any door or window, change existing locks or the
mechanism thereof, or make or permit to be made any keys for any door other than
those provided by Landlord. If more than two keys or one lock are desired,
Landlord will provide them upon payment therefor by Tenant. Tenant, upon
termination of its tenancy, shall deliver to the Landlord all keys of offices,
rooms and toilet rooms which have been furnished Tenant or which the Tenant
shall have had made, and in the event of loss of any keys so furnished shall pay
Landlord therefor.
(8) If Tenant desires signal, communication, alarm or other utility
or similar service connections installed or changed. Tenant shall not install
or change the same without the prior approval of Landlord, and then only
under Landlord's direction at Tenant's expense. Tenant shall not install in
the Premises any equipment which requires more electric current than Landlord
is required to provide under this Lease, without Landlord's prior approval,
and Tenant shall ascertain from Landlord the maximum amount of load or demand
for or use of electrical current which can safely be permitted in the
Premises, taking into account the capacity of electric wiring in the Property
and the Premises and the needs of tenants of the Property and shall not in
any event connect a greater load than such safe capacity.
(9) Tenant shall not obtain for use upon the Premises ice, drinking
water, towel, janitor and other similar services. except from Persons approved
by the Landlord. Any Person engaged by Tenant to provide janitor or other
services shall be subject to direction by the manager or security personnel of
the Property.
(10) The toilet rooms, urinals, wash bowls and other such apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein and the expense of any breakage, stoppage or damage resulting from the
violation of this Rule shall be borne by the Tenant who, or whose employees or
invitees shall have caused it.
(11) The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets, and other such closets, rooms and
areas shall be used only for the purposes and in the manner designated by
Landlord, and may not be used by tenants, or their contractors, agents,
employees, or other parties without Landlord's prior written consent.
-2-
(12) Landlord reserves the right to exclude or expel from the Property
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of these Rules. Tenant shall not at any time manufacture, sell. use or
give away, any spirituous, fermented, intoxicating or alcoholic liquors on the
Premises, nor permit any of the same to occur (except in connection with
occasional social or business events conducted in the Premises which do not
violate any Laws nor bother or annoy any other tenants). Tenant shall not at any
time sell, purchase or give away, food in any form by or to any of Tenant's
agents or employees or any other parties on the Premises, nor permit any of the
same to occur (other than in lunch rooms or kitchens for employees as may be
permitted or installed by Landlord, which does not violate any Laws or bother or
annoy any other tenant).
(13) Tenant shall not make any room-to-room canvass to solicit business
or information or to distribute any article or material to or from other tenants
or occupants of the Property and shall not exhibit, sell or offer to sell, use,
rent or exchange any products or services in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises specified in the
Lease.
(14) Tenant shall not waste electricity, water, heat or air
conditioning or other utilities or services, and agrees to cooperate fully with
Landlord to assure the most effective and energy efficient operation of the
Property and shall not allow the adjustment (except by Landlord's authorized
Property personnel) of any controls. Tenant shall keep corridor doors closed and
shall not open any windows, except that if the air circulation shall not be in
operation, windows which are openable may be opened with Landlord's consent. As
a condition to claiming any deficiency in the air-conditioning or ventilation
services provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight.
(15) Tenant shall conduct no auction, fire or "going out of business
sale" or Bankruptcy sale in or from the Premises, and such prohibition shall
apply to Tenant's creditors.
(16) Tenant shall cooperate and comply with any reasonable safety or
security programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the Property, or
required by Law. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors or other means of entry to the Premises and shut off all
lights and water faucets in the Premises (except heat to the extent necessary to
prevent the freezing or bursting of pipes).
(17) Tenant will comply with all municipal, county, state, federal or
other government laws, statutes, codes, regulations and other requirements,
including without limitation, environmental, health, safety and police
requirements and regulations respecting the Premises, now or hereinafter in
force, at its sole cost, and will not use the Premises for any immoral purposes.
(18) Tenant shall not (i) carry on any business. activity or service
except those ordinarily embraced within the permitted use of the Premises
specified in the Lease and more particularly, but without limiting the
generality of the foregoing, shall not (ii) install or operate any internal
combustion engine, boilers, machinery, refrigerating, heating or air
conditioning
-3-
equipment in or about the Premises, (iii) use the Premises for housing, lodging
or sleeping purposes or for the washing of clothes, (iv) place any radio or
television antennae other than inside of the Premises. (v) operate or permit to
be operated any musical or sound producing instrument or device which may be
heard outside the Premises, (vi) use any source of power other than electricity,
(vii) operate any electrical or other device from which may emanate electrical
or other waves which may interfere with or impair radio, television, microwave,
or other broadcasting or reception from or in the Property or elsewhere, (viii)
bring or permit any bicycle or other vehicle, or dog (except in the company of a
blind person or except where specifically permitted) or other animal or bird in
the Property, (ix) make or permit objectionable noise or odor to emanate from
the Premises, (x) do anything in or about the Premises tending to create or
maintain a nuisance or do any act tending to injure the reputation of the
Property, (xi) throw or permit to be thrown or drooped any article from any
window or other opening in the Property, (xii) use or permit upon the Premises
anything that will invalidate or increase the rate of insurance on any policies
of insurance now or hereafter carried on the Property or violate the
certificates of occupancy issued for the premises or the Property, (xiii) use
the Premises for any purpose, or permit upon the Premises anything, that may be
dangerous to persons or property (including but not limited to flammable oils.
fluids. paints, chemicals, firearms or any explosive articles or materials) nor
(xiv) do or permit anything to be done upon the Premises in any way tending to
disturb any other tenant at the Property or the occupants of neighboring
property.
(19) If the Property shall now or hereafter contain a building garage,
parking structure or other parking area or facility, the following Rules shall
apply in such areas or facilities:
(i) Parking shall be available in areas designated generally for
tenant parking, for such daily or monthly charges as Landlord may establish
from time to time, or as may be provided in any Parking Agreement attached
hereto (which, when signed by both parties as provided therein, shall
thereupon become effective). In all cases, parking for Tenant and its
employees and visitors shall be on a "first come, first served," unassigned
basis, with Landlord and other tenants at the Property, and their employees
and visitors, and other Persons (as defined in Article 25 of the Lease) to
whom Landlord shall grant the right or who shall otherwise have the right to
use the same, all subject to these Rules. as the same may be amended or
supplemented, and applied on a non-discriminatory basis, all as further
described in Article 6 of the Lease. Notwithstanding the foregoing to the
contrary, Landlord reserves the right to assign specific spaces, and to
reserve spaces for visitors, small cars, handicapped individuals, and other
tenants, visitors of tenants of other Persons, and Tenant and its employees
and visitors shall not park in any such assigned or reserved spaces. Landlord
may restrict or prohibit full size vans and other large vehicles.
(ii) In case of any violation of these provisions, Landlord may
refuse to permit the violator to park, and may remove the vehicle owned or
driven by the violator from the Property without liability whatsoever, at
such violator's risk and expense. Landlord reserves the right to close all or
a portion of the parking areas or facilities in order to make repairs or
perform maintenance services, or to alter, modify, re-stripe or renovate the
same, or if required by casualty, strike, condemnation, act of God, Law or
governmental requirement, or any other reason beyond Landlord's reasonable
control. In the event access is denied for any reason, any monthly parking
charges shall be abated to the extent access is denied, as Tenant's sole
recourse. Tenant acknowledges that such parking areas or facilities may be
operated by an independent contractor
-4-
not affiliated with Landlord, and Tenant acknowledges that in such event,
Landlord shall have no liability for claims arising through acts or omissions of
such independent contractor, it such contractor is reputable.
(iii) Hours shall be 6 A.M. to 8 P.M., Monday through Friday, and
10:00 A.M. to 1:00 P.M. on Saturdays, or such other hours as may be
reasonably established by Landlord or its parking operator from time to time;
cars must be parked entirely within the stall lines. and only small cars may
be parked in areas reserved for small cars; all directional signs and arrows
must be observed; the speed limit shall be 5 miles per hour: spaces reserved
for handicapped parking must be used only by vehicles properly designated;
every xxxxxx is required to park and lock his own car: washing, waxing,
cleaning or servicing of any vehicle is prohibited; parking spaces may be
used only for parking automobiles: parking is prohibited in areas: (a) not
striped or designated for parking, (b) aisles, (c) where "no parking" signs
are posted, (d) on ramps, and (e) loading areas and other specialty
designated areas. Delivery trucks and vehicles shall use only those areas
designated therefor.
-5-
JMB 112B (2/89)
Office Lease Rider
Tenant Pays Full Prorata Share
Of All Electricity in Property
RIDER 2
ELECTRICITY CHARGES
Notwithstanding anything to the contrary contained in the Lease, in
addition to the Base Rent and other charges set forth therein, Tenant shall pay
Landlord an amount equal to Tenant's Prorata Share (as such term is defined in
Article 25 of the Lease) of general use electric utility charges Incurred at the
Property during the Term, as the same may be extended from time to time. All
such charges shall be payable as additional rent, with the installment of Base
Rent with which the same are billed, or if billed separately, shall be due and
payable within twenty (20) days after such billing. Landlord may reasonably
estimate Tenant's electricity charges in advance, on a monthly, quarterly,
semi-annual, or other reasonable basis; in such case Tenant shall pay the
estimated amount with the installment of Base Rent with which the same is
billed, or if billed separately, within twenty (20) days after such billing, and
Tenant shall continue paying Landlord such estimated amount until Landlord shall
adjust such estimate. In such event, periodically, but not less often than once
each twelve months, Landlord shall compare the amounts on an estimated basis
with the actual charges incurred hereunder, and shall xxxx Tenant for any
additional amount due (which Tenant shall pay within twenty (20) days
thereafter) or shall credit Tenant for any over payment. In recognition that
Tenant will be responsible for paying Tenant's Prorata Share of such electric
utility charges pursuant to the foregoing provisions, no electric utility
charges shall be included in Operating Expenses (as defined in Article 25 of the
Lease). However, if the Property is less than 95% occupied during all or a
portion of any calendar year. Landlord may elect to make an appropriate
adjustment to the electricity charges for such year, employing sound accounting
and management principles, to determine the amount of electricity charges that
would have been incurred had the Property been 95% occupied; and the amount so
determined shall be deemed to have been the amount of electricity charges for
such year. In the event of any inconsistency between the Lease and this Rider,
the latter shall govern and control.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx, XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST, a Massachusetts Business Trust
By:/s/ [illegible]
--------------------------------
Trustee
-1-
TENANT:
CORECHANGE LLC
By: /s/ Xxx Xxxxxx
--------------------------------
-2-
Use With JMB
102 Forms
(7/6/90)
RIDER 3
Notwithstanding anything to the contrary contained in the Lease, the
parties agree that Operating Expenses for the Base Expense Year (herein called
"Base Year Expenses") and for any subsequent year (herein called "Subsequent
Year Expenses") shall be subject to further adjustment by Landlord as follows:
(i) Landlord may exclude from Base Year Expenses capital expenditures
otherwise permitted under Article 25 of the Lease (provided, Landlord shall also
exclude any amortization of such expenditures from Subsequent Year Expenses).
(ii) If Landlord eliminates from any Subsequent Year Expenses a
recurring category of expenses previously included in Base Year Expenses,
Landlord may subtract such category from Base Year Expenses commencing with
such subsequent year.
(iii) If Landlord includes a new recurring category of Subsequent
Year Expenses not previously included in Base Year Expenses, Landlord shall
also include an amount (the "Assumed Base Amount") for such category in Base
Year Expenses commencing in such subsequent year.
(iv) The "Assumed Base Amount" under clause (iii), above, shall be
the annualized amount of expenses for such new category in the first year it
is included reduced by an amount determined in Landlord's good faith opinion.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx, XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST, a Massachusetts Business Trust
By: /s/ [illegible]
----------------------------------
Trustee
TENANT:
CORECHANGE LLC
By: /s/ Xxx Xxxxxx
---------------------------------------
-1-
JMB 110A (2/89)
Option to Extend
Prevailing Rate Adjustment
(Arbitration)
RIDER 4
Tenant is hereby granted an option to extend the Term for a single
additional period of five (5) consecutive Lease Years ("Extension Period"), on
the same terms and conditions in effect under the Lease immediately prior to the
Extension Period, except that Tenant shall have no further right to extend, and
monthly Base Rent shall be increased to the Prevailing Rental Rate, and Tenant
shall have no further option to extend. The option to extend may be exercised
only by giving Landlord irrevocable and unconditional written notice thereof no
earlier than one year and no later than six months prior to the commencement of
the Extension Period. Said exercise shall, at Landlord's election, be null and
void if Tenant is in default under the Lease beyond applicable grace or cure
periods at the date of said notice or at any time thereafter and prior to
commencement of the Extension Period. The term "Lease Year" herein means each
twelve month annual period, commencing with the first day of the Extension
Period, without regard to calendar years.
"Prevailing Rental Rate" means the average per square foot rental rate
per month for all renewal leases for renewal periods approximately as long as
the Extension Period, executed by tenants for similar uses and lengths of time
for comparable space in the Building during the six (6) months immediately prior
to the date upon which such Prevailing Rental Rate is to become effective, where
such renewal rates were not set by the terms of such leases, subject to
reasonable adjustments for comparable space on more or less desirable floors or
areas of the Property. If no such comparable space has been renewed during such
six (6) month period, the rental rates used for purposes of this provision shall
be adjusted to the amounts Landlord would have used had leases for such
comparable space been renewed. In all cases, such rates shall be determined
without regard to any free rent periods, improvement allowances, take-over lease
obligations, or other economic incentives; however, any such economic incentives
generally provided by Landlord in such comparable renewal leases shall also be
provided to Tenant. In addition, if such comparable leases include bass years,
stop levels, or other provisions respecting taxes or operating expenses, or
include any other economic provisions, such as but not limited to consumer price
provisions, utility reimbursements, or fixed rent increases, the same shall be
included in Tenant's renewal terms.
If the parties are unable to agree on the Prevailing Rental Rate within
sixty (60) days after the commencement of the Extension Period, either party may
request that the Prevailing Rental Rate be determined by arbitration, under the
Commercial Arbitration Rules of the American Arbitration Association then in
effect. Such determination shall be final and binding upon the parties. In
recognition that the Prevailing Rental Rate may not be determined until after
the commencement of the Extension Period, Tenant shall pay, during the Extension
Period until the Prevailing Rental Rate is determined, 100% of the amount of
Rent then in effect (including Base Rent, and all other charges). If the
Prevailing Rental Rate is determined to be greater than such amount, Tenant
shall pay Landlord, within thirty (30) days after written request therefor, the
-1-
difference between the amount required by such determination of the Prevailing
Rental Rate, and the amount of Rent theretofore paid by Tenant during the
Extension Period.
If Tenant shall fall to exercise the option herein provided, said
option shall terminate, and shall be null and void and of no further force and
effect. Tenant's exercise of said option shall not operate to cure any default
by Tenant of any of the terms or provisions in the Lease, nor to extinguish or
impair any rights or remedies of Landlord arising by virtue of such default. If
the Lease or Tenant's right to possession of the Premises shall terminate in any
manner whatsoever before Tenant shall exercise the option herein provided, then
immediately upon such termination, sublease or assignment, the option herein
granted to extend the Term, shall simultaneously terminate and become null and
void. Time is of the essence of this provision.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx, XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST, a Massachusetts Business Trust
By: /s/ [illegible]
----------------------------------
Trustee
TENANT:
CORECHANGE LLC
By: /s/ Xxx Xxxxxx
----------------------------------------
-2-
RIDER 5
As set forth in the Lease, monthly Base Rent shall be abated for a
period of 15 days after the Commencement Date ("Abatement Period"). If Tenant
shall default under the Lease and fail to cure within the time permitted for
cure thereunder, while Abatement Period is still in effect, the Abatement Period
shall thereupon terminate, and Tenant shall commence paying the Base Rent under
the Lease. In addition, if Tenant shall default under the Lease at any time and
fail to cure within the time permitted for cure thereunder, Tenant shall upon
demand pay Landlord the amount of Base Rent theretofore abated, multiplied by a
fraction, the numerator of which is the number of months then remaining in the
initial Term at the time of the default, and the denominator of which is the
total number of months in the initial Term (without limiting Landlord's other
remedies).
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx, XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST, a Massachusetts Business Trust
By: /s/ [illegible]
----------------------------------
Trustee
TENANT:
CORECHANGE LLC
By: /s/ Xxx Xxxxxx
----------------------------------------
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Declining Amount Security Deposit
RIDER 6
As security for Tenant's obligations under this Lease, Tenant is
simultaneous with the execution of this Lease depositing with Landlord an
irrevocable standby letter of credit (i) in favor of Landlord, (ii) in the
original face amount of $100,000, (iii) issued by a banking institution
reasonably satisfactory to Landlord, and (iv) in a form reasonably satisfactory
to Landlord; provided, however, (a) the face amount of the letter of credit may
be reduced by $20,000 on the date which is the later to occur of (x) the first
anniversary of the Commencement Date, and (y) five (5) business days after the
cure of any and all defaults which occurred prior to such anniversary of the
Commencement Date and which are in fact cured within applicable cure periods and
(b) the then face amount of the letter of credit may be reduced by $20,000 on
(x) each succeeding anniversary of the Commencement Date after the first
anniversary or, if later, (y) five (5) business days after the cure of any and
all defaults which occurred prior to such anniversary of the Commencement Date
and which are in fact cured within applicable cure periods. The letter of credit
shall not be reduced if the conditions for reducing have not been timely met.
The letter of credit shall automatically renew on each anniversary of the
Commencement Date unless not less than forty-five (45) days prior to renewal,
the issuing banking institution notifies Landlord in writing that the letter of
credit will not be renewed, in which event Landlord shall be entitled to draw
the entire face amount of the letter of credit and to hold the amount so drawn
as a security deposit to secure Tenant's performance under the Lease. Landlord
shall have the right from time to time, without prejudice to any other remedy
Landlord may have on account thereof, to draw down under the letter of credit an
amount equal to all or any portion as Landlord may elect of the face amount of
the letter of credit (or to use amounts held as security after being drawn by
reason of failure to renew) to cure any default of Tenant which has continued
beyond applicable periods of notice and grace under the Lease and to reimburse
Landlord for any damages arising from any default under this Lease on the part
of Tenant. Without limiting the generality of the foregoing, such letter of
credit shall provide in all events that Landlord shall have the right to draw
against the face amount thereof as aforesaid upon the submission to the drawee
bank of a written statement of Landlord or Landlord's agent that it is entitled
to draw thereunder pursuant to the provisions of this Lease, and Landlord shall
be entitled by the terms of such letter of credit to draw thereunder on sight.
Tenant shall promptly after any draw by Landlord against a letter of credit
hereunder or a reduction in the amount held as security hereunder by reason of
the application thereof to cure a default by Tenant deposit with Landlord, to be
held as a security deposit an amount equal to the amount drawn under the letter
of credit or applied so as to provide Landlord with an unreduced amount of
security for Tenant's obligations under the Lease. Landlord shall not be
required to keep any amounts held as a security deposit separate from Landlord's
general funds or to pay interest on any security deposit. Tenant acknowledges
and agrees that the delivery of the letter of credit as aforesaid shall be, if
Landlord shall so elect, a condition precedent to the execution of this Lease by
Landlord, or to the performance by Landlord of any and all of Landlord's
obligations under this Lease if Landlord shall execute this Lease prior to the
delivery of the first such letter of credit as aforesaid. Notwithstanding
anything to the contrary herein contained, in the event that Tenant shall fail
to deliver to Landlord the letter of credit required to be so delivered by the
terms hereof or shall fail to deposit with Landlord as additional security for
Tenant's obligations under the Lease an amount equal to any amount drawn by
Landlord under a letter of credit hereunder
-1-
or applied, then Landlord may treat such failure as a material breach of this
Lease and thereupon, without further notice or demand of any kind to Tenant
or any guarantor of any of Tenant's obligations under this Lease or any other
person, Landlord may exercise, at its option, in addition to all other legal
or equitable remedies therefor, any remedies available to Landlord under
Article 23 of this Lease, including, without limitation, the right to
terminate this Lease.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx, XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST, a Massachusetts Business Trust
By: /s/ [illegible]
----------------------------------
Trustee
TENANT:
CORECHANGE LLC
By: /s/ Xxx Xxxxxx
----------------------------------------
-2-
JMB 106 (2/89)
Parking Agreement
RIDER 7
PARKING AGREEMENT
THIS AGREEMENT made as of the _____ day of December, 1996, between 000
Xxxxxxxx Xxxxxx Associates Trust ("Landlord") and Corechange LLC ("Tenant").
1. The parties hereby acknowledge that they have heretofore entered,
or are contemporaneously herewith entering into a certain lease dated
December __, 1996 (the "Lease") for premises known as Suite 1890 (the
"Premises") located in the property known as 000 Xxxxxxxx Xxxxxx (the
"Property"). In the event of any conflict between the Lease and this
Agreement, the latter shall control.
2. Landlord hereby grants to Tenant and persons designated by Tenant a
license to use 2 parking spaces in the Property Garage. The Term of such license
shall commence on the Commencement Date under the Lease and shall continue until
the earlier to occur of the Expiration Date under the Lease, or termination of
the Lease or Tenant's abandonment of the Premises thereunder. During the Term of
this license, Tenant shall pay Landlord the monthly charges established from
time to time by Landlord for parking in the Garage, payable in advance, with
Tenant's payment of monthly Base Rent. The initial charge for such spaces is
$275.00, per space, per month, or a total monthly charge of $550.00 for all such
spaces. No deductions from the monthly charge shall be made for days on which
the Garage is not used by Tenant. However, Tenant may reduce the number of
parking spaces hereunder, at any time, by providing at least thirty (30) days
advance written notice to Landlord, accompanied by any key-card, sticker or
other identification or entrance system provided by Landlord or its parking
contractor; such cancellation shall be irrevocable. Tenant may, from time to
time, request additional parking spaces, and if Landlord shall provide the same,
such spaces shall be provided and used on a month-to-month basis, and otherwise
on the foregoing terms and provisions, and such monthly parking charges as
Landlord shall establish from time to time.
3. Tenant shall at all times comply with all applicable ordinances,
rules, regulations, codes, laws, statutes and requirements of all federal,
state, county and municipal governmental bodies or their subdivisions respecting
the use of the Garage. Landlord reserves the right to adopt, modify and enforce
reasonable Rules governing the use of the Garage from time to time, including
any key-card, sticker or other identification or entrance system, and hours of
operation. The Rules set forth hereinafter are currently in effect. Landlord may
refuse to permit any person who violates such Rules to park in the Garage, and
any violation of the Rules shall subject the car to removal from the Garage.
4. The parking spaces hereunder shall be provided on an unreserved
"first-come, first-served" basis. Tenant acknowledges that Landlord has or may
arrange for the Garage to be operated by an independent contractor, not
affiliated with Landlord. In such event, Tenant acknowledges that Landlord shall
have no liability for claims arising through acts or omissions of such
independent contractor, if such contractor is reputable. Except for intentional
acts or gross
-1-
negligence, Landlord shall have no liability whatsoever for any damage to
property or any other items located in the Garage, nor for any personal
injuries or death arising out of any matter relating to the Garage and in all
events, Tenant agrees to look first to its insurance carrier and to require
that Tenant's employees look first to their respective insurance carriers for
payment of any losses sustained in connection with any use of the Garage.
Tenant hereby waives on behalf of its insurance carriers all rights of
subrogation against Landlord or Landlord's agents. Landlord reserves the
right to assign specific spaces, and to reserve spaces for visitors, small
cars, handicapped persons and for other tenants, guests of tenants or other
parties, and Tenant and persons designated by Tenant hereunder shall not park
in any such assigned or reserved spaces. Landlord also reserves the right to
close all or any portion of the Garage in order to make repairs or perform
maintenance services, or to alter, modify, re-stripe or renovate the Garage,
or if required by casualty, strike, condemnation, act of God, governmental
law or requirement or other reason beyond Landlord's reasonable control. In
such event, Landlord shall refund any prepaid parking rent hereunder,
prorated on a per them basis. If, for any other reason, Tenant or persons
properly designated by Tenant, shall be denied access to the Garage, and
Tenant or such persons shall have complied with this Agreement and this
Agreement shall be in effect, Landlord's liability shall be limited to such
parking charges (excluding tickets for parking violations) incurred by Tenant
or such persons in utilizing alternative parking, which amount Landlord shall
pay upon presentation of documentation supporting Tenant's claims in
connection therewith.
5. If Tenant shall default under this Agreement, Landlord shall have
the right to remove from the Garage any vehicles hereunder which shall have been
involved or shall have been owned or driven by parties involved in causing such
default, without liability therefor whatsoever. In addition, if Tenant shall
default under this Agreement, Landlord shall have the right to cancel this
Agreement on ten days' written notice, unless within such ten day period, Tenant
cures such default. If Tenant defaults with respect to the same term or
condition under this Agreement more than three times during any twelve month
period, and Landlord notifies Tenant thereof promptly after each such default,
the next default of such term or condition during the succeeding twelve month
period, shall, at Landlord's election, constitute an incurable default. Such
cancellation right shall be cumulative and in addition to any other rights or
remedies available to Landlord at law or in equity, or provided under the Lease
(ALL OF WHICH RIGHTS AND REMEDIES UNDER THE LEASE ARE HEREBY INCORPORATED
HEREIN, AS THOUGH FULLY SET FORTH). Any default by Tenant under the Lease shall
be a default under this Agreement, and any default under this Agreement shall be
a default under the Lease.
-2-
EXHIBIT A
(FLOOR PLAN(S) SHOWING PREMISES CROSS-HATCHED)
-1-
FOR USE WHERE WORKING DRAWINGS DONE
JMB 105A (2/89)
Work Agreement
Landlord Performance
Turn-Key Deal
EXHIBIT "B"
WORK AGREEMENT
THIS AGREEMENT made as of the ____ day of December, 1996, between 000
Xxxxxxxx Xxxxxx Associates Trust ("Landlord") and Corechange LLC ("Tenant").
Reference is made to the lease or tenant expansion agreement dated
December, 1996, (the "Lease") for premises known as Suite(s) 1890 (the
"Premises"), located in the property known as 000 Xxxxxxxx Xxxxxx (the
"Property").
I. THE WORK. The "Work" herein shall consist of the improvements shown
on the plans ("Plans") referenced as follows, and any demolition or preparation
work required in connection therewith: Up to maximum of $11.00 per rental square
foot or $64,669.00.
Name of Architect or Space Planner: Xxxx Xxxxx Associates,
Inc./Architect
Address of Architect or Space Planner: 00 Xxxxx Xxxxxx, Xxxxxx, XX
00000
Caption of Plans:
--------------------------------------------------
Number of Sheets:
--------------------------------------------------
Dates of Plans and Revisions:
--------------------------------------
II. BASIC AGREEMENT. On or before the Commencement Date under the
Lease, Landlord shall substantially complete the Work as described above.
However, Landlord shall not be responsible for delays caused by Tenant or
Tenant's contractors, agents or employees and as further described in Section
III below and in Article 4 of the Lease.
Landlord shall bear the cost of the Plans (including any engineering
reports, or other studies or tests in connection therewith, but excluding any
furniture planning) and the cost of the Work (including the cost of building
permits and sales tax) except as provided to the contrary herein.
III. DELAYS IN CONSTRUCTION. Subject to outside date set forth in
Article 4 of the Lease, the Commencement Date under the Lease shall be postponed
for each day that Landlord fails to substantially complete the Work thereby as a
result of strikes, acts of God, shortages of materials or labor, governmental
approvals or requirements, the various causes set forth below, or any
-1-
other causes beyond Landlord's reasonable control. In such case, the
commencement of Rent shall be similarly postponed, except to the extent that
delays occur as a result of one or more of the following, (collectively called
"Tenant Delays");
(a) Tenant's requests for changes to the Work or Change Orders under
Section V, or otherwise,
(b) Tenant's failure to furnish an amount equal to Landlord's
reasonable estimate of Tenant's Cost (if any) within 10 days, as described in
Section XIII (which shall give Landlord the absolute right to postpone the Work
until such amount is furnished to Landlord),
(c) any upgrades, special work or other non-building standard items, or
items not customarily provided by Landlord to office tenants, to the extent that
the same involve longer lead times, installation times, delays or difficulties
in obtaining building permits, requirements for any governmental approval,
permit or action beyond the issuance of normal building permits (as described in
Section IV),
(d) the performance by Tenant or Tenant's contractors, agents or
employees of any work at or about the Premises or Property, or
(e) any act or omission of Tenant or Tenant's contractors, agents or
employees, or any breach by the Tenant of any provisions contained in this
Agreement or in the Lease, or any failure of Tenant to cooperate with Landlord
or otherwise act in good faith in order to cause the Work to be designed and
performed in a timely manner.
IV. GOVERNMENTAL APPROVAL OF PLANS. Landlord shall apply for any normal
building permits required for the Work. If the Plans must be revised in order to
obtain such building permits, Landlord shall promptly notify Tenant. In such
case, Tenant shall promptly arrange for the Plans to be revised to satisfy the
building permit requirements and shall submit the revised Plans to Landlord for
approval as a Change Order under Section V. Landlord shall have no obligation to
apply for any zoning, parking or sign code amendments, approvals, permits or
variances, or any other governmental approval, permit or action (except normal
building permits as described above). If any such other matters are required,
Tenant shall promptly seek to satisfy such requirements or revise the Plans to
eliminate such requirements. Delays in substantially completing the Work by the
Commencement Date as a result of requirements for building permits or other
governmental approvals, permits or actions shall affect the Commencement Date
and commencement of Rent to the extent provided in Section III (except that any
delays in obtaining normal building permits as a result of errors or omissions
of any space planner or architect selected and regularly used by Landlord in
preparing the Plans shall postpone the commencement of Rent to the extent that
substantial completion of the Work is delayed thereby beyond the Commencement
Date, and Tenant shall not be obligated to bear the cost of Plan revisions to
correct he same, notwithstanding anything to the contrary contained in this
Agreement.
V. CHANGES TO PLANS. If Tenant shall desire any changes, alterations,
or additions to the Plans referenced above, Tenant shall submit a detailed
written request or revised Plans (the "Change Order") to Landlord for approval.
If reasonable and practicable and generally
-2-
consistent with the Plans theretofor approved. Landlord shall not unreasonably
withhold approval, but all costs in connection therewith, including without
limitation, construction costs, permit fees, and any additional plans, drawings
and engineering reports or opinions or other studies or tests, or revisions of
such existing terms, shall be paid for by Tenant as a Tenant's Cost under
Section XIII, or as Landlord shall otherwise reasonably require.
VI. COMPLETION.
A. Landlord shall be deemed to have "substantially completed" the Work
for purposes hereof if Landlord has caused all of the Work to be completed
substantially except for so-called "punchlist items," e.g. minor details of
construction or decoration or mechanical adjustments which do not substantially
interfere with Tenant's occupancy of the Premises, or Tenant's ability to
complete any improvements to the Premises to be made by Tenant. If there is any
dispute as to whether Landlord has substantially completed the Work, the good
faith decision of Landlord's Space Planner shall be final and binding on the
parties.
B. If Landlord notifies Tenant in writing that the Work is
substantially completed, and Tenant fails to object thereto in writing within
seven (7) days thereafter specifying in reasonable detail the items of work
needed to be performed in order for substantial completion, Tenant shall be
deemed conclusively to have agreed that the Work is substantially completed,
for purposes of commencing the Commencement Date and Rent under the Lease.
C. Substantial completion shall not prejudice Tenant's rights to
require full completion of any remaining items of Work. However, if Landlord
notifies Tenant in writing that the Work is fully completed, and Tenant fails
to object thereto in writing within fifteen (15) days thereafter specifying
in reasonable detail the items of work needed to be completed and the nature
of work needed to complete said items, (other than items which are seasonal
in nature and latent defects, with respect to which Tenant shall have a
period of one year in which to notify Landlord of any deficiency in the Work
with respect thereto) Tenant shall be deemed conclusively to have accepted
the Work is fully completed (or such portions thereof as to which Tenant has
not so objected).
D. Landlord reserves the right to substitute comparable or better
materials and items for those shown in the Plans, as long as they do not
materially and adversely affect the appearance of the Premises.
VII. WORK PERFORMED BY TENANT. Landlord, at Landlord's discretion,
may permit Tenant and Tenant's agents and contractors to enter the Premises
prior to completion of the Work in order to make the Premises ready for
Tenant's use and occupancy. If Landlord permits such entry prior to
completion of the Work, then such permission is conditioned upon Tenant and
Tenant's agents, contractors, workmen, mechanics, suppliers and invitees
working in harmony and not interfering with Landlord and Landlord's
contractors in doing the Work or with other tenants and occupants of the
Building, at any time such entry shall cause or threaten to cause such
disharmony or interference, Landlord shall have the right to withdraw such
permission upon twenty-four (24) hours oral or written notice to Tenant.
Tenant agrees that any such entry into the Premises shall be deemed to be
under all of the terms, covenants, conditions and provisions of the Lease
including, without limitation, all insurance requirements), except as the
covenant to
-3-
pay Rent thereunder, and further agrees that Landlord shall not be liable in
any way for any injury, loss or damage which may occur to any items of work
instructed by Tenant or to other property of Tenant that may be placed in the
Premises prior to completion of the Work, the same being at Tenant's sole
risk.
VIII. SIGNAGE. Landlord shall cause signage of building standard
material and design to be placed on or adjacent to the door of the Premises
and Tenant shall pay the cost thereof to Landlord upon demand. The amount due
from Tenant therefor shall be deemed "Rent" under the Lease. Tenant shall
promptly advise Landlord in writing of the name or names Tenant wishes for
said signage. The content of all signage shall be subject to Landlord's prior
approval.
IX. LIABILITY. The parties acknowledge that Landlord is not an
architect or engineer, and that the Work will be signed and performed by
independent architects, engineers and contractors. Accordingly, Landlord does
not guarantee or warrant that the Plans will be free from errors or
omissions, nor that the Work will be free from defects, and Landlord shall
have no liability therefor, provided that such architects, engineers and
contractors are licensed and reputable (except as provided in Section IV). In
the event of such errors, omissions, or defects, Landlord shall cooperate in
any action Tenant desires to bring against such parties.
X. DELETED
XI. INCORPORATION INTO LEASE; DEFAULT. THE PARTIES AGREE THAT THE
PROVISIONS OF THIS WORK AGREEMENT ARE HEREBY INCORPORATED BY THIS REFERENCE
INTO THE LEASE FULLY AS THOUGH SET FORTH THEREIN. In the event of any express
inconsistencies between the Lease and this Work Agreement, the latter shall
govern and control. Any default by a party hereunder shall constitute a
default by that party under the Lease and said party shall be subject to the
remedies and other provisions applicable thereto under the Lease.
XII. UPGRADES OR SPECIAL WORK; TENANT'S COST.
The parties acknowledge that Tenant has selected certain items included
in the Work which are high quality or specialized for Tenant's use. Accordingly:
(a) DELETED
(b) Tenant shall pay balance towards the cost of the Work.
Any amounts that Tenant is required to pay under this Section or any
other provision of this Agreement shall be referred to as "Tenant's Cost"
herein. Tenant's Cost shall be deemed additional "Rent" under the Lease.
Landlord may at any time reasonably estimate Tenant's Cost in advance, in which
case, Tenant shall deposit such estimated amount with Landlord within 10 days
after requested by Landlord. If such estimated amount exceeds the actual amount
of Tenant's Cost, Tenant shall receive a refund of the difference, and if the
actual amount shall exceed the estimated amount, Tenant shall pay the difference
to Landlord within 10 days after requested by Landlord.
TENANT:
CORECHANGE LLC
By: /s/ Xxx Xxxxxx
---------------------------------------
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx, XX
-4-
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST, a Massachusetts Business Trust
By: /s/ [illegible]
-------------------------------------
Trustee
-5-
RULES
(i) Garage hours shall be 6 A.M. to 8 P.M. or such other hours as Landlord
shall determine from time to time.
(ii) Cars must be parked entirely within the stall lines painted on the
floor, and only small cars may be parked in areas reserved for small
cars.
(iii) All directional signs and arrows must be observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Spaces reserved for handicapped parking must be used only by vehicles
properly designated.
(vi) Parking is prohibited in all areas not expressly designated for
parking, including without limitation:
(a) areas not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by Landlord shall remain the property
of Landlord. Such devices must be displayed as requested and may not be
mutilated in any manner The serial number of the parking identification
device may not be obliterated. Devices are not transferable and any
device in the possession of an unauthorized holder will be void.
(viii) Monthly fees shall be payable in advance prior to the first day of each
month. Failure to do so will automatically cancel parking privileges
and a charge at the prevailing daily parking rate will be due. No
deductions or allowances from the monthly rate will be made for days on
which the Garage is not used by Tenant or its designees.
(ix) Garage managers or attendants are not authorized to make or allow any
exceptions to these Rules.
(x) Every xxxxxx is required to park and lock his own car.
(xi) Loss or theft of parking identification, key cards or other such
devices must be reported to Landlord or any garage manager immediately.
Any parking devices reported lost or stolen found on any unauthorized
car will be confiscated and the illegal holder will be subject to
prosecution. Lost or stolen devices found by Tenant or its employees
must be reported to the office of the garage immediately.
-1-
(xii) Washing, waxing, cleaning or servicing of any vehicle by the customer
and/or his agents is prohibited. Parking spaces may be used only for
parking automobiles.
(xiii) By signing this Parking Agreement, Tenant agrees to acquaint all
persons to whom Tenant assigns parking space of these Rules.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx, XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST, a Massachusetts Business Trust
By: /s/ [illegible]
----------------------------------
Trustee
TENANT:
CORECHANGE LLC
By:/s/ Xxx Xxxxxx
----------------------------------------
-2-
LEASE AMENDMENT I
TENANT EXPANSION AGREEMENT
THIS AGREEMENT made and entered into as of this 25 day of April 1998,
by and between 260 Franklin, Inc. ("Landlord"), and Corechange LLC ("Tenant").
A. Landlord or its predecessor in interest, and Tenant or its
predecessor in interest, have heretofore entered into that certain lease dated
the 27 day of December, 1996 for premises (the "Premises") described as Suite
1890, initially containing approximately 4,918 square feet, in the property
known as 000 Xxxxxxxx Xxxxxx (the "Property") the address of which is 000
Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, which lease has heretofore been amended or
assigned by instrument dated Notice of Lease 12/27/96. Estoppel Certificate
12/15/97
B. Tenant has requested that additional space in the Property
consisting of approximately 4,918 square feet of rentable space shown on Exhibit
A, attached hereto and incorporated herein (the "Expansion Space") be added to
the Premises, and that the Lease be appropriately amended, and Landlord is
willing to do the same, all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the parties do
hereby agree as follows:
1. EXPANSION. Commencing on the 15 day of April, 1998 (the
"Commencement Date"), the Expansion Space shall be added to and become a part of
the Premises, subject to all of the terms and conditions of the Lease currently
in effect, except as expressly modified herein. Expiration for the Expansion
Space 6/30/99. The Commencement Date shall be subject to adjustment as described
in Paragraph 4, below.
2. RENTALS AND OTHER CHARGES. On the Commencement Date, the minimum or
base monthly rent under the Lease for the Expansion Space shall be $13,114.67.
In addition, on the Commencement Date, all increases in rentals,
additional rent or other charges based or computed on the square footage of the
Premises under the Lease, including without limitation, real estate taxes,
insurance costs, common area maintenance expenses, operating expenses, shall be
adjusted proportionately to reflect the Expansion Space square footage.
The minimum or base rentals and all other charges respecting the
Expansion Space are sometimes herein called the "Expansion Space Rent".
3. Intentionally Omitted.
4. POSSESSION. Tenant has inspected the Expansion Space and agrees to
accept the same "as is" without any agreements, representations, understandings
or obligations on the part of Landlord to perform any alterations, repairs or
improvements except as expressly provided in any separate agreement that may be
signed by the parties in connection herewith. Any construction, alterations or
improvements made to the Expansion Space by Tenant shall be
-1-
subject to Landlord's prior written approval including without limitation,
approval of the plans, specifications, contractors and subcontractors therefor,
and all applicable terms and conditions of the Lease relating to construction,
alterations or improvements of the Premises, and such other reasonable
requirements or conditions as Landlord may impose. During any period that Tenant
shall be permitted to enter the Expansion Space prior to the Commencement Date
other than to occupy the same (e.g., to perform alterations or improvements),
Tenant shall comply with all terms and provisions of the Lease, except those
provisions requiring payment of Expansion Space Rent. If Tenant shall be
permitted to enter the Expansion Space prior to the Commencement Date for the
purpose of occupying the same, Expansion Space Rent shall commence on such date;
if Tenant shall commence occupying only a portion of the Expansion Space prior
to the Commencement Date, such rent and charges shall be prorated based on the
number of rentable square fee occupied by Tenant.
The Commencement Date shall be delayed and Expansion Space Rent shall
be abated to the extent that Landlord fails: (i) to substantially complete any
improvements to the Expansion Space required to be performed by Landlord under
any separate agreement signed by both parties in connection herewith, or (ii) to
deliver possession of the Expansion Space for any other reason, including but
not limited to holding over by prior occupants, except to the extent that
Tenant, its contractors, agents or employees in any way contribute to either
such failures. If Landlord so fails for a ninety (90) day initial grace period,
or such additional time as may be necessary due to strikes, acts of God,
shortages of labor or materials, governmental requirements, acts or omissions of
Tenant, its contractors, agents or employees, or other causes beyond Landlord's
reasonable control, Tenant shall have the right to terminate this Tenant
Expansion Agreement by written notice to Landlord any time hereafter up until
Landlord substantially completes any such improvements and delivers the
Expansion Space to Tenant. Any such delay in the Commencement Date shall not
subject Landlord to any liability for any loss or damage resulting therefrom,
and Tenant's sole remedy with respect thereto shall be the abatement of
Expansion Space Rent and right to terminate this Agreement described above. Upon
any such termination, Landlord and Tenant shall be entirely relieved of their
obligations hereunder, and any Additional Security Deposit and Expansion Space
Rent payments shall be returned to Tenant. If the Commencement Date is delayed,
the Expiration Date under the Lease shall not be similarly extended, unless the
parties expressly agree in writing.
5. WHOLE AGREEMENT. This Agreement sets forth the entire Agreement
between the parties with respect to the matters set forth herein. There have
been no additional oral or written representations or agreements. As amended
herein, the Lease between the parties shall remain in full force and effect.
In case of any inconsistency between the provisions of the Lease and this
Agreement, the latter provisions shall govern and control. Under no
circumstances shall this Agreement be deemed to grant any right to Tenant to
further expand the Premises.
6. GUARANTORS. This Agreement shall be of no force or effect unless
and until accepted by any guarantors of the Lease, who by signing below shall
agree that their guarantee shall apply to the Lease as amended herein, unless
such requirement is waived by Landlord in writing.
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7. NOT AN OFFER. Submission of this Agreement by Landlord is not an
offer to enter this Agreement, but a solicitation for such an offer by Tenant.
Landlord shall not be bound by this Agreement until Landlord has executed and
delivered the same to Tenant.
IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this
Agreement as of the day and year first above written.
WITNESSES; ATTESTATION LANDLORD: 260 Franklin, Inc.
(Two for each signatory mandatory if Property
is in Florida or Ohio):
By:/s/ XXXXXX X. XXXXX
-------------------------- --------------------------
Its: V.P.
-------------------------- --------------------------
TENANT: Corechange LLC
-------------------------- --------------------------
By: /s/ Xxxx Xxxxxxx
-------------------------- --------------------------
Its: CFO/SR V.P.
-------------------------- --------------------------
--------------------------
--------------------------
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SECOND AMENDMENT OF LEASE
SPACE REDUCTION AGREEMENT
THIS AGREEMENT made and entered into as of this _____ day of August,
1998, by and between 260 Franklin, Inc. ("Landlord") and Corechange, Inc.
("Tenant").
A. Landlord or its predecessor in interest, and Tenant or its
predecessor in interest, have heretofore entered into that certain lease dated
the 27th day of December, 1996, for premises described as Space, Store, Suite,
or Unit No. 1890 initially containing approximately 5,879 s.f., increased by
4,918 s.f. by Lease Amendment I square feet (the "Premises"), in the 000
Xxxxxxxx Xxxxxx (the "Building"), the address of which is 000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX 00000, which lease has heretofore been amended or assigned by
instruments dated April 15, 1998 (collectively, the "Lease").
B. Tenant desires to surrender a portion of the Premises to Landlord
consisting of approximately 710 square feet of space added by Lease Amendment I
and shown on Exhibit A, attached hereto and incorporated herein (the "Reduction
Space"), thereby leaving the balance of the Premises consisting of approximately
10,087 square feet as shown on Exhibit B attached hereto and incorporated herein
(the "Remaining Premises"), and Landlord is willing to accept such surrender on
the terms and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the parties do
hereby agree as follows:
1. SPACE REDUCTION. On the Effective Date (as hereinafter defined), the
Reduction Space shall be subtracted from the Premises, and shall be deemed
surrendered by Tenant to Landlord, and the Lease shall be deemed terminated with
respect thereto: provided, if Tenant shall violate any provision hereof, or if
Tenant's representations herein shall be false or materially misleading,
Landlord shall have the right to declare this Agreement null and void, and to
reinstate the Lease with respect to the Reduction Space, in addition to, and not
in lieu of, any other rights or remedies available to Landlord. Tenant shall
fully comply with all obligations under the Lease respecting the Reduction Space
through the Effective Date, including those provisions relating to the condition
of the Reduction Space, and removal of Tenant's personal property therefrom,
upon termination or expiration of the Lease. If Tenant shall holdover in the
Reduction Space beyond the Effective Date, Tenant shall be liable for rentals
and other charges respecting the Reduction Space equal to twice the amount in
effect under the Lease, prorated on a per diem basis, and on a per square foot
basis for the Reduction Space. Such holdover amount shall not be in limitation
of Tenant's liability for consequential or other damages arising from Tenant's
holding over nor as permission for Tenant to hold over in the Reduction
Premises. If Landlord shall install a wall demising off the Reduction Space from
the Remaining Premises, Tenant shall promptly reimburse Landlord's costs in
connection therewith, as additional rent under the Lease.
2. EFFECTIVE DATE. The "Effective Date" herein shall be August 13,
1998.
-1-
3. PAYMENTS. Tenant shall continue to pay all rentals and other charges
under the Lease through the Effective Date. Thereafter, Tenant shall pay minimum
or base monthly rent in the amount of $11,221.33 for the Remaining Premises
added by Lease Amendment I.
In addition, all rentals and any other charges based or computed on the
square footage of the Premises, including without limitation, real estate taxes,
insurance costs and operating expenses, shall be reduced proportionately to
reflect the decrease in square footage to 4,208 square feet of the space added
by Lease Amendment I.
If any charges respecting the Reduction Space have not been determined
by the Effective Date, Tenant shall pay Landlord's reasonable estimate of such
charges, subject to adjustment after the actual charges have been determined. If
the Lease requires payment of so-called "percentage rent", then the so-called
sales base, minimum annual volume, or percentage breakpoint amount shall be
reduced in proportion to the reduction in base or minimum rent hereunder.
4. REPRESENTATIONS. Each party represents to the other that it has full
power and authority to execute this agreement. Tenant represents that it has not
made any assignment, sublease, transfer, conveyance of the Lease or any interest
therein or in the Reduction Space, and further represents that there is not and
will not hereafter be any claim, demand, obligation, liability, action or cause
of action by any other party respecting, relating to or arising out of the
Reduction Space, and agrees to indemnify and hold harmless Landlord and its
partners, agents and affiliates from all liabilities, expenses, claims, demands,
judgments, damages or costs arising from any of the same, including without
limitation attorney's fees. Tenant acknowledges that Landlord will be relying on
this Agreement in entering leases for the Reduction Space with other parties.
5. NO OFFER. This Agreement shall not be binding until executed and
delivered by both parties. This Agreement shall not be relied upon by any other
party, individual, corporation, partnership or other entity as a basis for
reducing its lease obligations with Landlord.
6. WHOLE AGREEMENT. No representations, promises or inducements have
been made by the parties other than as appear in this Agreement. Thus Agreement
may not be amended except in writing signed by both parties. As amended herein,
the Lease shall remain in full force and effect.
7. NO DISCLOSURE. Tenant agrees that it shall not disclose any matters
set forth in this Agreement or disseminate or distribute any information
concerning the terms, details or conditions hereof to any person, firm or entity
without obtaining the express written consent of Landlord.
8. MISCELLANEOUS. Warranties, representations, agreements, and
obligations contained in this Agreement shall survive the execution and delivery
of this Agreement and shall survive any and all performances in accordance with
this Agreement. This Agreement may be executed in any number of counterparts
which together shall constitute this Agreement. If any party obtains a judgment
against any other party by reason of breach of this Agreement,
-2-
reasonable attorney's fees as fixed by the court shall be included in such
judgment. This Agreement and the terms and provisions hereof shall inure to
the benefit of and be binding upon the heirs, successors and assigns of the
parties. This Agreement shall be construed and enforced in accordance with
the laws of the state in which the Property is located.
9. GUARANTORS. This Agreement shall be of no force or effect unless and
until accepted by any guarantors of the Lease, who by signing below shall agree
that their guarantee shall apply to the Lease as amended herein, unless such
requirement is waived by Landlord in writing.
10. CONSENT. This agreement is subject to, and conditioned upon, any
required consent or approval being granted without any fee or charge that is
unacceptable to Landlord, by Landlord's mortgagees and ground lessors.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WITNESS; ATTESTATION LANDLORD: 260 Franklin, Inc.
a Florida corporation
(Two for each signatory required if Property
is in Florida or Ohio):
By:/s/ Xxxxxx X. Xxxxx
-------------------------- --------------------------
Its: Vice President
-------------------------- --------------------------
TENANT: Corechange, Inc.
-------------------------- --------------------------
By: /s/ Xxxx Xxxxxxx
-------------------------- --------------------------
GUARANTORS (and Spouses): Its: CFO/SR V.P.
-------------------------- --------------------------
By:
-------------------------- --------------------------
Its:
-------------------------- --------------------------
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EXHIBIT A
REDUCTION SPACE
-1-
EXHIBIT B
REMAINING SPACE
-1-
JMB 138 (2/89)
Sublease and Consent
SUBLEASE AND CONSENT
THIS SUBLEASE AND CONSENT ("Sublease") is made as of April 15, 1998,
by and between Corechange, Inc. ("Tenant"), having an address at 000 Xxxxxxxx
Xxxxxx, Xxxxxx 0000 and 0000, Xxxxxx, Xxxxxxxxxxxxx and C.A. Atlantic
Securities, Inc. ("Sublessee"), having an address at 000 Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx and 260 Franklin, Inc., c/o COMPASS
Management & Leasing, Inc. ("Landlord"), having an address at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx.
A. Landlord or its predecessor in interest, and Tenant or its
predecessor in interest, have heretofore entered into that certain lease dated
April 15, 1998, for premises (the "Premises") described as Suite(s), or Room(s)
1920 initially containing approximately 4,918 square feet in the property (the
"Building") known as 000 Xxxxxxxx Xxxxxx, located at Boston, Massachusetts which
lease has heretofore been amended or assigned by instruments dated ___________
(collectively, the "Master Lease").
B. Sublessee desires to obtain space in the Building, Tenant desires to
sublease space to Sublessee, and Landlord is willing to approve the same, all on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the parties hereto
agree as follows: See Additional Terms and Conditions attached hereto.
1. Tenant shall sublease to Sublessee and Sublessee shall sublease
from Tenant approximately 776 rentable square feet of the Premises, as more
fully described in Exhibit "A" attached hereto ( the "Sublease Premises").
2. The term of this Sublease shall commence on April 15, 1998, (the
"Commencement Date") and terminate on May 31, 1998, (the "Expiration Date"),
unless sooner terminated, subject to Section 9, below.
3. Sublessee shall pay Tenant as basic rent use of furniture and other
good and valuable consideration, receipt of which is hereby acknowledged
commencing on the first day of each month, on April 15, 1998, and continuing
each month thereafter during the term of this Sublease.
4. DELETED
5. Sublessee shall perform and observe the terms and conditions to be
performed on the part of Tenant under the provisions of the Master Lease, except
for the payment of rent, and shall indemnify Tenant and Landlord against all
claims, damages, costs and expenses arising out of Sublessee's failure to
perform or observe any such terms or conditions, subject however to all the
express terms and conditions of this Sublease. If Subleassee shall default
hereunder and not cure within the time permitted for cure of such default under
the Master Lease, Tenant shall have all remedies against Sublessee provided for
Landlord under the Master Lease, and if such default shall constitute a default
under the Master Lease, Landlord shall have all remedies available to Landlord
thereunder.
-1-
6. This Sublease shall be of no force or effect unless and until
executed and delivered by all parties hereto. No provision of this Sublease may
be amended except in writing signed by all parties hereto or their successors.
By execution hereof, Tenant ratifies the Master Lease and Sublessee acknowledges
that it has received a complete and correct copy of the Master Lease and is
familiar with the terms thereof.
7. Neither the Master Lease, nor this Sublease shall be deemed to grant
Sublessee any rights whatsoever against Landlord. Sublessee hereby acknowledges
and agrees that its sole remedy for any alleged or actual breach of its rights
in connection with the Sublease Premises (as defined in the Sublease) shall be
solely against Tenant.
8. This Sublease shall not release Tenant from any existing or future
duty, obligation or liability to Landlord pursuant to the Master Lease, nor
shall this Sublease change, modify or amend the Master Lease in any manner. In
particular, without prejudice to the generality of the foregoing, this Sublease
shall not absolve Tenant from the requirement set forth in the Master Lease that
Tenant obtain Landlord's prior written approval for any further subleases.
9. (a) In the event of Master Lease Termination (as hereinafter
defined) prior to the termination of this Sublease, at Landlord's option,
Sublessee agrees to attorn to Landlord and to recognize Landlord as Sublessee's
landlord under this Sublease, upon the terms and conditions and at the rental
rate specified in this Sublease, and for the then remaining term of this
Sublease, except that Landlord shall not be bound by any provision of this
Sublease which in any way increases Landlord's duties, obligations or
liabilities to Sublessee beyond those owed to Tenant under the Master Lease.
Sublessee agrees to execute and deliver at any time and from time to time, upon
the request of Landlord, any instruments which may be necessary or appropriate
to evidence such attornment. Landlord shall not (i) be liable to Sublessee for
any act, omission or breach of this Sublease by Tenant, (ii) be subject to any
offsets or defenses which Sublessee might have against Tenant, (iii) be bound by
any rent or additional rent which Sublessee might have paid in advance to
Tenant, or (iv) be bound to honor any rights of Sublessee in any security
deposit made with Tenant except to the extent Tenant has turned over such
security deposit to Landlord. Tenant hereby agrees that in the event of Master
Lease Termination, Tenant shall immediately pay or transfer to Landlord any
security deposits, rent or other sums then held by Tenant.
(b) "Master Lease Termination" means any event, which by voluntary or
involuntary act or by operation of law, might cause or permit the Master Lease
to be terminated, expire, be cancelled, be foreclosed against, or otherwise come
to an end, including but not limited to (1) a default by Tenant under the Master
Lease of any of the terms or provisions thereof; (2) foreclosure proceedings
brought by the holder of any mortgage or trust deed to which the Master Lease is
subject; or (3) the termination of Tenant's leasehold estate by dispossession
proceeding or otherwise.
(c) In the event of attornment hereunder, Landlord's liability shall be
limited to matters arising during Landlord's ownership of the Building, and in
the event that Landlord (or any successor owner) shall convey or dispose of the
Building to another party, such party shall thereupon be and become landlord
hereunder and shall be deemed to have fully assumed and be liable for all
obligations under this Sublease to be performed by Landlord which first arise
after
-2-
the date of conveyance, including the return of any security deposit, and Tenant
shall attorn to such other party, and Landlord (or such successor owner) shall,
from and after the date of conveyance, be free of all liabilities and
obligations hereunder not then incurred. The liability of Landlord to Sublessee
for any default by Landlord under this Sublease after such attornment, or
arising in connection with Landlord's operation, management, leasing, repair,
renovation, alteration, or any other matter relating to the Building or the
Sublease Premises, shall be limited to the interest of the Landlord in the
Building (and proceeds thereof). Under no circumstances shall any present or
future general partner of Landlord (if Landlord is a partnership), or
individual trustee or beneficiary (if Landlord or any partner of Landlord is a
trust) have any liability for the performance of Landlord's obligations under
this Sublease.
10. In addition to Landlord's rights under Section 9 hereof, in the
event Tenant is in default under any of the terms and provisions of the
Master Lease, Landlord may elect to receive directly from Sublessee all sums
due or payable to Tenant by Sublessee pursuant to this Sublease, and upon
receipt of Landlord's notice, Sublessee shall thereafter pay Landlord any
sums becoming due or payable under this Sublease, and Tenant shall receive
from Landlord a corresponding credit for such sums against any and all
payments then due or thereafter becoming due from Tenant. Neither the service
of such written notice nor the receipt of such direct payments shall cause
Landlord to assume any of Tenant's duties, obligations and/or liabilities
under this Sublease, nor shall such event impose upon Landlord the duty or
obligation to honor this Sublease, nor subsequently to accept Sublessee's
attornment pursuant to Section 9 (a) hereof.
11. Sublessee hereby acknowledges that it has read and has knowledge of
all of the terms, provisions, rules and regulations of the Master Lease and
agrees not to do or omit to do anything which would cause Tenant to be in breach
of the Master Lease. Any such act or omission shall also constitute a breach of
this Sublease entitling Landlord to recover any damage, loss, cost, or expense
which it thereby suffers, from Sublessee, whether or not Landlord proceeds
against Tenant. If the Master Lease requires the payment of percentage rent,
based on a percentage of gross sales or other sales in or from the Premises,
Sublessee shall comply with all provisions of the Master Lease respecting the
same, including without limitation, all requirements concerning the keeping of
books, records, and other items, and reporting of gross sales to Landlord. In
such case, Sublessee's sales shall be included in Tenant's gross sales for
purposes of computing Tenant's percentage rent obligations under the Master
Lease.
12. In the event of any litigation between the parties hereto with
respect to the subject matter hereof, the unsuccessful party agrees to pay to
the successful party all costs, expenses and reasonable attorneys' fees incurred
therein by the successful party, which shall be included as a part of a judgment
rendered therein.
13. This Sublease shall be binding upon and inure to the benefit of the
parties' respective successors and assigns, subject at all times, to all
agreements and restrictions contained in the Master Lease, and herein, with
respect to subleasing, assignment, or other transfer. The agreements contained
herein constitute the entire understanding between the parties with respect to
the subject matter hereof, and supersede all prior agreements, written or oral,
inconsistent herewith. This Sublease may be amended only in writing, signed by
all parties hereto.
-3-
14. Notices required or desired to be given hereunder shall be
effective either upon personal delivery or three (3) days after deposit in the
United States mail, by certified mail, return receipt requested, addressed to
the parties at the addresses set forth above. Any party may change its address
for notice by giving notice in the manner hereinabove provided.
15. DELETED
16. Notwithstanding anything to the contrary set forth herein or
elsewhere, if the Master Lease was guaranteed at the time of execution or at any
time prior hereto by any guarantor, then Landlord may at any time hereafter
declare all of its agreements in this Sublease to be null and void and of no
force and effect unless and until Landlord receives a counterpart of this
Sublease indicating the approval thereof by any and all such guarantor(s) and
their spouses.
17. Tenant and Sublessee agree to indemnify and hold Landlord harmless
from and against any loss, cost, expense, damage or liability, including
reasonable attorneys' fees, incurred as a result of a claim by any person or
entity (i) that it is entitled to a commission, finder's fee or like payment in
connection with this Sublease or (ii) relating to or arising out of this
Sublease or any related agreement or dealings.
18. Tenant agrees to hold any and all payments due under this Sublease
as a trust fund to be applied first to the satisfaction of all of Tenant's
obligations under the Master Lease and hereunder, before using any part thereof
for any other purpose.
19. Sublessee has inspected the Sublease Premises and agrees to accept
the same "as is" without any agreements, representations, understandings or
obligations on the part of Tenant to perform any alterations, repairs or
improvements except as expressly provided in any separate agreement that may be
signed by the parties in connection herewith. Any construction, alterations or
improvements made to the Sublease Premises by Sublessee shall be subject to
Tenant's and Landlord's prior written approval including without limitation,
approval of the plans, specifications, contractors and subcontractors therefor,
and all applicable terms and conditions of the Lease relating to construction,
alterations or improvements of the Premises, and such other reasonable
requirements or conditions as Tenant or Landlord may impose. During any period
that Sublessee shall be permitted to enter the Sublease Premises prior to the
Commencement Date other than to occupy the same (e.g., to perform alterations or
improvements), Sublessee shall comply with all terms and provisions of this
Sublease, except those provisions requiring payment of rentals. If Sublessee
shall be permitted to enter the Sublease Premises prior to the Commencement Date
for the purpose of occupying the same, rentals shall commence on such date; if
Sublessee shall commence occupying only a portion of the Sublease Premises prior
to the Commencement Date, rentals shall be prorated based on the number of
rentable square feet occupied by Sublessee.
The Commencement Date shall be delayed and rentals from Sublessee to
Tenant hereunder shall be abated to the extent that Tenant fails: (i) to
substantially complete any improvements to the Sublease Premises required to be
performed by Tenant under any separate agreement signed by both parties and
approved by landlord in connection herewith, or (ii) to deliver possession of
the Sublease Premises for any other reason, including but not limited to holding
over by prior occupants, except to the extent that Subleasee, its contractors,
agents or employees in any way contribute to either such failures. If Tenant so
fails for a ninety (90) day initial grace period, or such additional time as may
be necessary due to strikes, acts of God;
-4-
shortages of labor or materials, governmental requirements, acts or omissions of
Sublessee, its contractors, agents or employees, or other causes beyond Tenant's
reasonable control, Sublessee shall have the right to terminate this Sublease by
written notice to Tenant any time thereafter up until Tenant substantially
completes any such improvements and delivers the Sublease Premises to Sublessee.
Any such delay in the Commencement Date shall not subject Tenant (or Landlord)
to any liability for any loss or damage resulting therefrom, and Sublessee's
sole remedy with respect thereto shall be the abatement of rentals and right to
terminate this Sublease described above. Upon any such termination, Tenant and
Sublessee shall be entirely relieved of their obligations hereunder, and any
Security Deposit and rentals shall be returned to Sublessee. If the Commencement
Date is delayed, the Expiration Date shall not be similarly extended, unless the
parties expressly agree in writing.
IN WITNESS WHEREOF, the following parties have executed this Sublease
as of the date first written above:
WITNESS; ATTESTATION
(Two for each signatory required if Property is
in Florida or Ohio): TENANT: CORECHANGE, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------- --------------------------
Name Typed: Xxxx X. Xxxxxxx
-------------------------- ------------------
Title: Chief Financial Officer
-------------------------- -------------------------
SUBLESSEE: C.A. ATLANTIC
SECURITIES, INC.
By: /s/ Xxxxxxx X. Lovely, Jr.
-------------------------- ---------------------------
Name Typed: Xxxxxxx X. Lovely, Jr.
-------------------------- ----------------------
Title: President
-------------------------- --------------------------
LANDLORD: 260 Franklin, Inc.
By: /s/ Xxxxxx X. Xxxxx
-------------------------- --------------------------
Name Typed: Xxxxxx X. Xxxxx
-------------------------- --------------------------
Title: V.P.
-------------------------- --------------------------
GUARANTOR(S) (and spouses)
--------------------------
--------------------------
-5-
THIS FORM HAS BEEN PROVIDED BY LANDLORD ONLY AS AN EXAMPLE OF A SUBLEASE. THIS
FORM HAS IMPORTANT LEGAL CONSEQUENCES, AND EACH PARTY SHOULD CONSULT ITS
ATTORNEY BEFORE SIGNING. LANDLORD DOES NOT PRACTICE LAW, AND IS PROVING NO
ASSURANCES AS TO THE ADEQUACY OR ENFORCEABILITY OF THIS FORM, OR WHETHER IT IS
FREE OF ERRORS OR OMISSIONS.
-6-
C.A. ATLANTIC SECURITIES, INC.
SUBLEASE AND CONSENT
ADDITIONAL TERMS AND CONDITIONS
1. This Sublease is subject to final approval by the Landlord, 260 Franklin,
Inc. and/or its agent, COMPASS Management & Leasing, Inc.
2. The space to be occupied by C.A. Atlantic Securities, Inc. ("Atlantic") is
described in ATTACHMENT 1 to this Sublease.
3. Atlantic shall vacate the subleased spaced in ATTACHMENT 1 no later than May
31, 1998. Atlantic may leave prior to this date upon thirty (30) days written
notice to Tenant. Atlantic expressly acknowledges that such agreement is a
material consideration to Tenant's entering into this Sublease.
4. Furniture and fixtures listed in ATTACHMENT 2 is the property of Atlantic.
While Tenant shall have use of said property, Tenant expressly acknowledges that
it has no ownership interest or rights thereto under any circumstances.
Furniture and fixtures listed in ATTACHMENT 2 shall remain on the premises until
the termination of this Sublease and Atlantic's departure from the premises,
which shall occur no later than May 31, 1998. Tenant shall surrender use of the
such property at the termination of this Sublease and Atlantic's complete
departure from the premises. Atlantic shall be responsible for removal of all
such property at the time of surrender.
5. Both Tenant and Atlantic expressly acknowledge and agree to cooperate with
one another in the occupancy by the Tenant of office space defined in ATTACHMENT
1 and Atlantic's removal of its property from the premises on or before May 31,
1998.
Access to the premises will be limited to the hours of 8:00 a.m. to 6:00 p.m. on
weekdays, except holidays. Access is not allowed on weekends. The front door
must be locked at all times. Atlantic agrees that it will not have any keys to
the premises, except to their own offices as defined in ATTACHMENT 1. Tenant's
personnel agree to admit Atlantic's personnel to the premises during business
hours.
AGREED:
BY: /s/ Xxxx X. Xxxxxxx 4/7/98
------------------------------------------ ---------
CORECHANGE, INC. (Tenant) Date
BY: /s/ Xxxxxxx X. Lovely, Jr. 4/7/98
------------------------------------------ ----------
C.A. ATLANTIC SECURITIES, INC. (Sublessee) Date
-7-
Updated 03/31/98
Attachment 2
Inventory of furniture and fixtures to be used by tenant as stated in addendum.
--------------------------------------------------- -------------------------
DESCRIPTION QUANTITY
--------------------------------------------------- -------------------------
Wood Credenza 3
--------------------------------------------------- -------------------------
Grey credenza 1
--------------------------------------------------- -------------------------
Grey Desks 8
--------------------------------------------------- -------------------------
Dark Wooden desks 10
--------------------------------------------------- -------------------------
Pine desks 1
--------------------------------------------------- -------------------------
Dark Wood and Black Unit 1
--------------------------------------------------- -------------------------
Reception desk 1
--------------------------------------------------- -------------------------
Pine corner table 1
--------------------------------------------------- -------------------------
Book case with glass cabinet pine 1
--------------------------------------------------- -------------------------
Square end table mahogany 1
--------------------------------------------------- -------------------------
Rectangle mahogany end table (X.X. room) 1
--------------------------------------------------- -------------------------
Book shelf mahogany (X.X. room) 1
--------------------------------------------------- -------------------------
Long mahogany credenza (X.X. room) 1
--------------------------------------------------- -------------------------
Conference table 1
--------------------------------------------------- -------------------------
Mahogany chairs with white cover 3
--------------------------------------------------- -------------------------
Side cabinet with brass handles 1
--------------------------------------------------- -------------------------
Matching Mahogany dresser 1
--------------------------------------------------- -------------------------
Grey all in one unit 1
--------------------------------------------------- -------------------------
Book cases 9 1/2
--------------------------------------------------- -------------------------
Black leather side chair 8
--------------------------------------------------- -------------------------
Black fabric swivel chair 2
--------------------------------------------------- -------------------------
Light xxxx swivel chair 1
--------------------------------------------------- -------------------------
Blue swivel chair 1
--------------------------------------------------- -------------------------
Rose fabric swivel chair 3
--------------------------------------------------- -------------------------
High black leather swivel chair 7
--------------------------------------------------- -------------------------
Rose fabric straight chair 4
--------------------------------------------------- -------------------------
Low black leather swivel chair 8
--------------------------------------------------- -------------------------
Black leather chair not matching 1
--------------------------------------------------- -------------------------
Green leather sofa 1
--------------------------------------------------- -------------------------
Green leather love seat 1
--------------------------------------------------- -------------------------
Red filing cabinets (detachable) 12
--------------------------------------------------- -------------------------
Black leather straight chairs 2
--------------------------------------------------- -------------------------
Wine color straight chair 2
--------------------------------------------------- -------------------------
Cork boards 2
--------------------------------------------------- -------------------------
--------------------------------------------------- -------------------------
--------------------------------------------------- -------------------------
-9-
LEASE AMENDMENT
THIS LEASE AMENDMENT made as of March 30th, 2000 between 260 FRANKLIN,
INC. ("Landlord") and CORECHANGE LLC ("Tenant").
BACKGROUND
Landlord and Tenant are the successor Landlord (the original Landlord
was 000 Xxxxxxxx Xxxxxx Associates Trust) and the Tenant, respectively, under a
Lease dated December 27, 1996, as amended (the "Lease"), covering certain
premises containing approximately 5,879 rentable square feet on the 18th floor
(the "Original Premises") at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. The
parties desire to add space to the Premises under the Lease and to extend the
term of the Lease, as hereinafter set forth. Capitalized terms not defined
herein shall have the meaning ascribed to them in the Lease.
WITNESSETH:
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. Effective as of April 1, 2000, there is hereby added to the Premises
under the Lease the space located on the 18th floor of the Building shown as the
"Additional Premises" on the plan attached hereto as EXHIBIT A (the "Additional
Premises"). The Additional Premises consists of approximately 1,953 rentable
square feet.
2. Except as expressly provided herein, all terms and provisions of the
Lease shall be applicable to the Additional Premises, except:
(a) Tenant shall accept the Additional Premises in its "as is"
condition and Landlord shall have no obligation to construct
any improvements or perform any work therein for Tenant's
occupancy. Notwithstanding the foregoing, Landlord shall
ensure that all systems and controls in the Additional
Premises are in good working order as of commencement of the
term of the Lease for the Additional Premises and shall
deliver the Additional Premises in broom clean condition.
Landlord represents that the Additional Premises is subject to
a currently effective certificate of occupancy.
(b) The term of the Lease for the Additional Premises shall
expire on March 31, 2005. If Tenant does not exercise its
option to extend the term of the Lease for the Original
Premises effective April 1, 2002, the Premises will then
consist solely of the Additional Premises.
(c) Effective as of April 1, 2000, the Premises shall consist
of 7,832 rentable square feet, and, while the Premises
consists of both the Original Premises and the Additional
Premises, Tenant's Pro Rata Share shall be 2.24%, and, if the
Premises shall consist solely of the Additional Premises,
Tenant's Pro Rata share shall be .56%.
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(d) The Base Rent for the Additional Premises shall be
$8,788.50 per month, commencing on April 1, 2000. There shall
be no free rent for the Additional Premises.
(e) The Base Tax Year for the Additional Premises shall be the
tax fiscal year ending June 30, 2000.
(f) The Base Expense Year for the Additional Premises shall be
calendar year 2000.
(g) Landlord will reimburse Tenant up to an aggregate of
$13,671 for the cost of design and construction of
improvements in the Additional Premises performed prior to
December 31, 2000. Landlord shall make such reimbursement upon
delivery to it of receipted bills and lien waivers.
Construction of improvements by Tenant shall comply with all
terms and provisions of the Lease.
3. If Tenant shall have exercised its option to extend the term of the
Lease for the Original Premises for the five year period beginning March 1,
2002, Tenant shall have the option to extend the term of the Lease for the
Additional Premises for one period of one (1) year and eleven (11) months,
provided (i) no default beyond applicable cure periods in the obligations of
Tenant under the Lease shall exist at the time such option is exercised and (ii)
Tenant shall give notice to Landlord of its exercise of such option prior to
March 31, 2004. All of the terms and provisions of the Lease shall be applicable
during such extended term except that (a) Tenant shall have no further option to
extend the term of the Lease for the Additional Premises and (b) Base Rent for
such extended term shall be the greater of (i) the Prevailing Rental Rate,
determined as provided in Rider 4 to the Lease, as of the first day of each such
extended term, or (ii) the Base Rent in effect immediately prior to such
extended term.
3. Each of Landlord and Tenant represents and warrants to the other
that it has dealt with no broker or agent in connection with this Lease
Amendment other than Insignia/ESG and Xxxxx Xxxx LaSalle.
4. Except as expressly amended hereby, the Lease shall continue in full
force and effect as heretofore.
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WITNESS the execution hereof as an instrument under seal as of the date
first above written.
LANDLORD:
260 FRANKLIN, INC.
By: /s/ Xxxxxx X. Xxxx
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Its: V.P.
TENANT:
CORECHANGE LLC
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Its: V.P. Finance and Administration
for Xxx Xxxxxx, President and CEO
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