Exhibit 10.1
LEASE
BURLINGTON XXXXX OFFICE PARK
0 XXXXXXXXXX XXXXX XXXXX, XXXXXXXXXX, XXXXXXXXXXXXX
Premises: Portion of the Third (3rd) Floor Tenant:
SOUNDBITE COMMUNICATIONS, INC.
TABLE OF CONTENTS
1. BASIC LEASE PROVISIONS............................................ 1
1.1. INTRODUCTION................................................... 1
1.2. BASIC DATA AND DEFINITIONS..................................... 1
2. DEMISING OF PREMISES, TERM, OPTIONS............................... 2
2.1. DEMISE OF PREMISES............................................. 2
2.2. APPURTENANT RIGHTS AND RESERVATIONS............................ 2
2.3. TERM........................................................... 3
2.4. OPTION TO EXTEND THE TERM...................................... 3
2.5. RIGHT OF FIRST OFFER ON CERTAIN ADDITIONAL SPACE............... 4
2.6. POTENTIAL EXPANSION AND MUTUAL NEW LEASE AND TERMINATION....... 5
3. RENT.............................................................. 5
3.1. FIXED RENT..................................................... 5
3.2. FIXED RENT FOR AVAILABLE SPACE AND DURING EXTENSION TERM....... 6
3.3. LATE PAYMENT................................................... 7
4. USE OF PREMISES; ALTERATIONS...................................... 8
4.1. PERMITTED USE.................................................. 8
4.2. ALTERATIONS.................................................... 9
5. ASSIGNMENT AND SUBLETTING......................................... 10
5.1. GENERALLY...................................................... 10
5.2. REIMBURSEMENT, RECAPTURE AND EXCESS RENT....................... 12
5.3. CERTAIN TRANSFERS.............................................. 13
6. CONDITION OF PREMISES AND RESPONSIBILITY FOR REPAIRS.............. 14
6.1. CONDITION OF PREMISES.......................................... 14
6.2. INTENTIONALLY OMITTED.......................................... 15
6.3. REPAIRS TO BE MADE BY LANDLORD................................. 15
6.4. MAINTENANCE AND REPAIRS TO BE MADE BY TENANT................... 15
6.5. FLOOR LOAD - HEAVY MACHINERY; OCCUPANT DENSITY................. 16
7. SERVICES; UTILITY CHARGES......................................... 17
7.1. LANDLORD'S SERVICES............................................ 17
7.2. UTILITY SERVICES AND CHARGES................................... 17
7.3. ELECTRICAL SERVICE AND ELECTRICAL CHARGE....................... 18
8. ADDITIONAL RENT FOR TAXES AND OPERATING EXPENSES.................. 18
8.1. TENANT'S PAYMENT OF ITS SHARE OF REAL ESTATE TAXES............. 18
8.2. TENANT'S PAYMENT OF ITS SHARE OF OPERATING EXPENSES............ 20
Burlington Xxxxx - SOUNDBITE COMMUNICATIONS, INC.
9. INDEMNITY AND INSURANCE........................................... 23
9.1. INDEMNITY...................................................... 23
9.2. INSURANCE...................................................... 23
9.3. TENANT'S RISK.................................................. 24
9.4. INJURY CAUSED BY THIRD PARTIES................................. 25
9.5. LANDLORD'S INSURANCE........................................... 25
10. LANDLORD'S ACCESS TO PREMISES..................................... 25
10.1. LANDLORD'S RIGHT OF ACCESS..................................... 25
10.2. EXHIBITION OF SPACE TO PROSPECTIVE TENANTS..................... 25
10.3. KEYS........................................................... 25
11. FIRE, EMINENT DOMAIN, ETC......................................... 25
11.1. FIRE OR OTHER CASUALTY......................................... 25
11.2. EMINENT DOMAIN................................................. 26
12. DEFAULT........................................................... 27
12.1. TENANT'S DEFAULT............................................... 27
12.2. REMEDIES....................................................... 28
12.3. INTEREST ON LATE PAYMENTS...................................... 29
12.4. LANDLORD'S DEFAULT............................................. 30
12.5. COSTS OF ENFORCEMENT........................................... 30
12.6. BANKRUPTCY AND INSOLVENCY...................................... 30
13. MISCELLANEOUS PROVISIONS.......................................... 31
13.1. EXTRA HAZARDOUS USE............................................ 31
13.2. WAIVER......................................................... 31
13.3. COVENANT OF QUIET ENJOYMENT.................................... 32
13.4. LANDLORD'S LIABILITY........................................... 32
13.5. NOTICE TO MORTGAGEE AND GROUND LESSOR.......................... 32
13.6. ASSIGNMENT OF RENTS............................................ 33
13.7. MECHANIC'S LIENS............................................... 33
13.8. NO BROKERAGE................................................... 33
13.9. INVALIDITY OF PARTICULAR PROVISIONS............................ 34
13.10. PROVISIONS BINDING, ETC........................................ 34
13.11. RECORDING...................................................... 34
13.12. NOTICES........................................................ 34
13.13. WHEN LEASE BECOMES BINDING..................................... 35
13.14. PARAGRAPH HEADINGS............................................. 35
13.15. RIGHTS OF MORTGAGEE............................................ 35
13.16. STATUS REPORT.................................................. 35
13.17. TENANT'S FINANCIAL CONDITION................................... 36
13.18. ADDITIONAL REMEDIES OF LANDLORD; SURVIVAL...................... 36
13.19. WAIVER OF COUNTERCLAIMS........................................ 37
13.20. CONSENTS....................................................... 37
13.21. HOLDING OVER................................................... 37
13.22. NON-SUBROGATION................................................ 37
13.23. ENVIRONMENTAL HAZARDS.......................................... 38
13.24. LETTER OF CREDIT............................................... 39
13.25. GOVERNING LAW.................................................. 39
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Burlington Xxxxx - SOUNDBITE COMMUNICATIONS, INC.
13.26. INTENTIONALLY OMITTED.......................................... 40
13.27. SECURITY MEASURES.............................................. 40
13.28. EASEMENTS...................................................... 40
13.29. CHANGES TO PROPERTY............................................ 40
13.30. INCORPORATION OF PRIOR AGREEMENTS.............................. 41
13.31. AMENDMENTS..................................................... 41
13.32. COVENANTS...................................................... 41
13.33. AUCTIONS....................................................... 41
13.34. MERGER......................................................... 41
13.35. AUTHORITY...................................................... 41
13.36. RELATIONSHIP OF PARTIES........................................ 41
13.37. RIGHT TO LEASE................................................. 42
13.38. CONFIDENTIALITY................................................ 42
13.39. OFAC CERTIFICATION AND INDEMNITY............................... 42
13.40. WAIVER OF JURY TRIAL........................................... 42
iii
LEASE
BURLINGTON XXXXX OFFICE PARK
This Lease, by and between Landlord and the Tenant (as defined below), relates
to the space in the building (the "Building") known as Building No. 2,
Burlington Xxxxx Office Park (which office park, and all improvements therein
from time to time, shall be referred to as the "Office Park"), in Burlington,
Middlesex County, Massachusetts, with an address at Two Burlington Xxxxx Drive,
Burlington, Massachusetts. The term "Lot" shall mean the parcel of land on which
the Building is located; and the term "Property" shall mean the Lot and all
improvements thereon from time to time, including the Building.
The parties to this Lease hereby agree with each other as follows:
1. BASIC LEASE PROVISIONS
1.1. INTRODUCTION.
As further supplemented in the balance of this instrument and its Exhibits, the
following sets forth the basic terms of this Lease and, where appropriate,
constitutes definitions of certain terms used in this Lease.
1.2. BASIC DATA AND DEFINITIONS.
Lease Date: December ___, 2004.
Landlord: BURLINGTON XXXXX OFFICE TRUST NO. 2
Present Mailing Address of c/o Finard & Company, LLC
Landlord: Xxx Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Tenant: SOUNDBITE COMMUNICATIONS, INC.,
a Delaware corporation.
Present Mailing Address of Tenant: Three Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Term or original Term: Three (3) years (plus the partial
month, if any, as set forth in Section
2.3.2 below).
Scheduled Commencement Date: May 1, 2005.
Fixed Rent: Lease Year PSF Annual Fixed Rent Monthly Installment
---------- ------ ----------------- -------------------
1 $17.50 $174,352.50 $14,529.38
2 $18.00 $179,334.00 $14,944.50
3 $18.50 $184,315.50 $15,359.63
FREE RENT: Notwithstanding the stated
Fixed Rent set forth above, provided
Tenant is not in default of any of its
obligations under this Lease, Tenant
shall be entitled to an abatement of
monthly installments of Annual Fixed
Rent, or so-called "free rent" period,
for the first three (3) full calendar
months of the Lease Term.
Electrical Charge: Premises are separately metered.
Option Period: One extension period of three (3) years.
Premises: The portion of the Building (as defined
above) located on the third (3rd)
floor, and shown as outlined on Exhibit
A attached hereto.
Rentable Floor Area of the Premises: Approximately 9,963 square feet.
Rentable Floor Area of the Building: Approximately 26,729 square feet.
Permitted Use: First-class office space, and no other
use.
Burlington Xxxxx - SOUNDBITE COMMUNICATIONS, INC.
Letter of Credit Amount: $35,770.67.
Brokers: Xxxxxxxxx & Xxxx Colliers International
and Xxxxxxxx Xxxxx Xxxxx & Partners,
LLC.
Tax Base: The Taxes for Tax Year 2006 (the fiscal
year ending June 30, 2006), as provided
in Section 8.1.
Base Operating Expenses: The Operating Expenses for Operating
Year 2005 (the calendar year ending
December 31, 2005), as provided in
Section 8.2.
2. DEMISING OF PREMISES, TERM, OPTIONS
2.1. DEMISE OF PREMISES.
2.1.1. Landlord hereby demises and leases to Tenant, and Tenant hereby
accepts from Landlord, the Premises, subject to the terms and conditions of this
Lease.
2.1.2. For the purposes of this Lease, it is agreed that the Rentable Floor
Area of the Premises shall be as stated in Section 1.2 above, and the Rentable
Floor Area of the Building shall be as stated in Section 1.2 above.
2.2. APPURTENANT RIGHTS AND RESERVATIONS.
2.2.1. Tenant shall have, as appurtenant to the Premises, the nonexclusive
right to use and to permit its invitees to use in common with others, public or
common lobbies, hallways, stairways, passenger elevators and sanitary facilities
in the Building necessary for Tenant's use and occupancy of the Premises, any
other common areas and facilities as Landlord may designate from time to time,
and (as provided in the next subsection) the parking facilities serving the
Building (collectively, "common areas"). Such rights shall always be subject to
reasonable rules and regulations from time to time established by Landlord by
suitable notice, and shall be subject to the right of Landlord to designate and
change from time to time areas and facilities to be so used; provided, however,
Landlord shall use commercially reasonable efforts to minimize any material
interference with Tenant's use of or access to the Premises.
2.2.2. Tenant shall also have, as appurtenant to the Premises, the
nonexclusive right to use, and permit its employees and invitees to use, in
common with others, on a first come, first serve basis, the open parking
facilities serving the Building (excepting those spaces now or hereafter
designated by Landlord as being for the exclusive use of others). Such parking
rights shall be subject to the right of Landlord to limit the number of parking
spaces available to Tenant, its employees and invitees, where the use of the
same exceeds, in Landlord's judgment, the ratio of 3.3 spaces per 1,000 square
feet of the Rentable Floor Area of the Building.
2.2.3. Excepted and excluded from the Premises are the roof and all
perimeter walls of the Premises, except the inner surfaces thereof, but the
entry doors to the Premises are not excluded from the Premises and are a part
thereof for all purposes; and Tenant agrees that Landlord shall have the right
to place in the Premises (but in such manner as to reduce to a minimum
interference with Tenant's use of the Premises) utility lines, pipes and the
like to serve premises other than the Premises, and to replace and maintain and
repair such utility lines, pipes and the like in, over and upon the Premises.
2.2.4. During the hours of 8:00 A.M. to 6:00 P.M., Monday through Friday,
legal holidays (both federal and state) in all cases excepted ("Normal Building
Operating Hours"), the Building shall be open and access to the Premises shall
be freely available, subject to interruption due to causes beyond
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Landlord's reasonable control. During periods other than Normal Building
Operating Hours, Landlord shall provide means of access to the Premises, subject
to security restrictions on such access, such as card access systems, and to
Section 13.4.2 below. Access to the Premises during Normal Building Operating
Hours and at other times shall always be subject to reasonable rules and
regulations therefor from time to time established by Landlord by suitable
notice. Tenant acknowledges that, in all events, Tenant is responsible for
providing security to the Premises and its own personnel, and to the maximum
extent permissible by law, Tenant shall indemnify, defend with counsel of
Landlord's selection, and save Landlord harmless from any claim for injury to
person or damage to property asserted by any personnel, employee, guest, invitee
or agent of Tenant which is suffered or occurs in or about the Premises or in or
about the Building by reason of the act of any intruder or any other person in
or about the Premises or the Building.
2.3. TERM.
2.3.1. Subject to the conditions herein stated, Tenant shall hold the
Premises for the Term (as defined in Section 1.2) commencing on the Commencement
Date (as defined below) and expiring at midnight of the last day of the Term,
unless sooner terminated as provided herein.
2.3.2. The Scheduled Commencement Date set forth in Section 1.2 is an
estimated Commencement Date. The actual Commencement Date shall be the date
possession of the Premises is tendered to Tenant in accordance with the
provisions of this Lease; provided, however, that the term of this Lease shall
be computed from the first day of the calendar month following the Commencement
Date if the Commencement Date is not on the first day of the month.
Notwithstanding the Scheduled Commencement Date specified in Section 1.2, if for
any reason Landlord cannot deliver possession of the Premises to Tenant on said
date, Landlord shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Tenant
hereunder; provided, however, in such a case, Tenant shall not be obligated to
pay rent or perform any other obligation of Tenant under this Lease, except as
may be otherwise provided in this Lease, until possession of the Premises is
tendered to Tenant.
2.3.3. Landlord and Tenant agree to execute a supplemental agreement
confirming the actual Commencement Date and expiration date of the Term, once
same are determined.
2.4. OPTION TO EXTEND THE TERM.
The Tenant shall have the option to extend the Term of this Lease for an
additional period equal to the Option Period (the "Extension Term"), provided
that: (i) this Lease is in full force and effect; (ii) Tenant is not in default
of the terms and conditions of this Lease at the time it elects to extend the
Term or at the commencement of the Extension Term; (iii) the original named
Tenant has not assigned this Lease or sublet any portion of the Premises; and
(iv) Tenant has given Landlord written notice of its election to extend the Term
no later than 9 months prior to the expiration date of the original Term of this
Lease. In the event that Tenant shall extend the Term as aforesaid, such
extension shall be upon the same terms and conditions as set forth herein except
that: no further right to extend shall be deemed to be included; and the annual
Fixed Rent payable hereunder shall be adjusted in accordance with the provisions
of Section 3. Should Tenant so extend the Term of this Lease, the term "Term" as
used herein shall mean the original Term together with the Extension Term.
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2.5. RIGHT OF FIRST OFFER ON CERTAIN ADDITIONAL SPACE.
2.5.1. Provided (i) this Lease is then in full force and effect, (ii)
Tenant is not in default of the terms and conditions of this Lease, and (iii)
the original named Tenant shall then occupy all or substantially all of the
Premises, Tenant shall have the right of first offer to lease the entire second
(2nd) floor of the Building (the "Available Space") (but not portions thereof),
which Tenant acknowledges is currently available for occupancy as of date of
this Lease and is being marketed by Landlord to potential tenants and which
Tenant has elected not to lease at this time, subject to and in accordance with
the terms hereof. At any time during the Term of this Lease that the Available
Space is available for occupancy, Tenant, or its broker, may contact Landlord's
managing agent or broker to obtain the status of the Available Space and the
current status of Landlord's marketing efforts in connection therewith and
Landlord shall use good faith efforts to keep Tenant apprised of the status of
Landlord's marketing efforts with regard to the current Available Space;
provided Landlord shall not be required to disclose confidential discussions or
other non-public information relating thereto. Tenant shall have the right to
lease the Available Space, so long as such space is still available for
occupancy, by giving written notice to Landlord of its desire to lease such
space. Tenant acknowledges that time is of the essence in connection with this
Section 2.5.1. If Tenant fails to timely or unequivocally notify Landlord of its
desire to lease the Available Space, Landlord shall be free to lease the
Available Space (or any portion thereof) without restriction, and Tenant,
following such failure and within seven (7) days of Landlord's request therefor,
shall execute and deliver to Landlord a certification, in recordable form,
confirming the Tenant's failure to exercise (or waiver of) such right, and
Tenant's failure to so execute and deliver such certification shall (without in
any way limiting any of Landlord's remedies on account thereof) entitle Landlord
to execute and deliver to any third party, and record, an affidavit confirming
the waiver, which affidavit shall be binding on Tenant and may be conclusively
relied on by third parties. If Tenant so elects to lease the Available Space,
the Available Space shall be leased upon the same terms and conditions contained
in this Lease, except the Fixed Rent for the Available Space shall be equal to
the Fair Market Rent therefor determined in accordance with Section 3.2.2 below
and the Letter of Credit Amount shall be increased proportionately to reflect
the inclusion of the Available Space, and the Available Space shall be and
become part of the Premises hereunder upon the delivery of the Available Space
to Tenant. It is understood and agreed that the Available Space shall be leased
by Tenant in its then "as is" condition, without warranty or representation by
Landlord, and that Landlord shall have no obligation to complete any work to
prepare the Available Space for Tenant's occupancy. To confirm the foregoing,
Landlord shall prepare an Amendment to Lease reflecting the foregoing terms,
which shall be signed by Tenant within ten (10) business days of submission. For
the purposes hereof, the Available Space shall be deemed "available for
occupancy" so long as such space or any portion thereof is not the subject of
any lease or occupancy agreement or letter of intent or proposal, or any such
document has expired or is due to expire within six (6) months, or Landlord has
elected not to renew the lease of the present tenant, and any prior options,
rights or rights to lease with respect to the Available Space have expired or
been waived and/or Landlord is otherwise free to lease such space to third
parties without restriction. In no event, however, shall any actions or
omissions made in good faith by Landlord or any of its agents or representatives
in connection with providing any information on the Available Space give rise to
any right to terminate this Lease or claim of any breach of Landlord hereunder
or any claim for damages at law or equity including injunctive relief.
2.5.2. Tenant understands that its rights under this Section 2.5 are and
shall be subject and subordinate to any options to lease or any rights of first
negotiation, first offer or first refusal to lease granted to other tenants of
the Building prior to the date of execution and delivery of this Lease.
4
2.6. POTENTIAL EXPANSION AND MUTUAL NEW LEASE AND TERMINATION.
Tenant has advised Landlord that Tenant may have a space expansion requirement
during the Term of this Lease. Landlord has advised Tenant that provided (i)
this Lease is then in full force and effect, (ii) Tenant is not in default of
the terms and conditions of this Lease, and (iii) the original named Tenant
shall then occupy all or substantially all of the Premises, Landlord shall use
good faith efforts to reach a mutually satisfactory agreement to accommodate
such requirement within the Building or Office Park, part of which resolution
shall include a termination of this Lease in the event any such expansion
resolution involves substantially larger, contiguous new space elsewhere in the
Building or the Office Park. Notwithstanding the foregoing, however, Tenant
hereby acknowledges and agrees that the foregoing does not, and shall not be
deemed to, create any option, right or other enforceable obligation regarding
any expansion or space within the Building or Office Park (or otherwise), or
give rise to any right to terminate this Lease or any claim of breach of
Landlord hereunder or any claim for damages at law or equity, including
injunctive relief.
3. RENT
3.1. FIXED RENT.
3.1.1. Tenant agrees to pay to Landlord, without offset or deduction and
without previous demand therefor, except as expressly provided herein, annual
Fixed Rent during each Lease Year (as defined below) of the Term. The annual
Fixed Rent during the original Term shall be as provided in Section 1.2 above.
3.1.2. All such annual Fixed Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every calendar month
during the Term, commencing on the Commencement Date, to Landlord, or as
directed by Landlord, at the Present Mailing Address of Landlord (as set forth
in Section 1.2) or at the address from time to time designated by Landlord.
3.1.3. Fixed Rent for any partial month shall be paid by Tenant on a pro
rata basis, and if the Commencement Date, except as otherwise expressly provided
in Section 1.2 above, occurs on a day other than the first day of a calendar
month, the first payment which Tenant shall make shall be a payment equal to a
proportionate part of such monthly Fixed Rent for the partial month from such
date to the first day of the succeeding calendar month, and the monthly Fixed
Rent for such succeeding calendar month.
3.1.4. For the purposes of this Lease, "Lease Year" shall mean each
successive 12-month period included in whole or in part in the Term of this
Lease; the first Lease Year beginning on the Commencement Date and ending at
midnight on the day before the first anniversary of the Commencement Date
(provided that if the Commencement Date is not the first day of a calendar
month, the first Lease Year shall end at midnight on the last day of the
calendar month which includes the first anniversary of the Commencement Date).
If the first Lease Year of the Term shall be greater than one full calendar
year, the annual Fixed Rent for such Lease Year shall be increased
proportionately to the greater length of such Lease Year.
3.1.5. Notwithstanding the fact that the amounts of Fixed Rent set forth in
this Lease were or may have been determined with reference to the floor area of
the Premises, said amounts as set forth above are stipulated to be the amounts
of Fixed Rent due hereunder, whether or not the actual floor area of the
Premises are in fact more or less than the floor area figures used to determine
said Fixed Rent.
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3.2. FIXED RENT FOR AVAILABLE SPACE AND DURING EXTENSION TERM.
3.2.1. For the Available Space leased by Tenant in accordance with Section
2.5 and/or during the Extension Term of this Lease (if Tenant exercises its
option to extend the Term hereof in accordance with Section 2.4), the annual
Fixed Rent to be paid by Tenant for the Available Space and during each Lease
Year of the Extension Term shall be determined as of the first day of the
inclusion of the Available Space into the Premises and Extension Term,
respectively, and shall equal the Fair Market Rental Value.
3.2.2. The "Fair Market Rental Value" shall mean the market rate for the
rental of the Available Space and the Premises for the Extension Term, as the
case may be, including all relevant factors, but in no event less than the Fixed
Rent payable during the last Lease Year of the original Term as to Extension
Term Fixed Rent, or less than the Fixed Rent then being charged under this Lease
as to Available Space. The Fair Market Rental Value shall be determined as
follows:
(a) After the exercise by Tenant of its option to extend the Term,
Landlord shall advise Tenant in writing of Landlord's determination of
the Fair Market Rental Value within twenty (20) business days of
Landlord's receipt of Tenant's exercise notice (but in no event shall
Landlord be required to provide such determination prior to nine (9)
months prior to the expiration of the original Term). Tenant shall be
deemed to have accepted the rental amount contained in Landlord's said
notice, and such rental rate shall be conclusively deemed to be the
Fair Market Rental Value, unless Tenant notifies Landlord in writing,
within 10 business days after Landlord's notice (but in no event shall
Tenant's notice be sent less than eight (8) months prior to the
expiration of the original Term), that Tenant disputes the
aforementioned determination by Landlord and Tenant affirmatively
elects to either (i) rescind its exercise of the extension option, in
which event Tenant's extension option shall be of no further force or
effect, or (ii) that Tenant disputes the aforementioned determination
by Landlord, in which event the parties shall proceed to the Fair
Market Rental Value determination as set forth in Subsection (c)
below.
(b) After the exercise by Tenant of its election to lease the Available
Space, Landlord shall advise Tenant in writing of Landlord's
determination of the Fair Market Rental Value within 30 days of
Landlord's receipt of Tenant's notice exercising its right to such
Available Space. Tenant shall be deemed to have accepted the rental
amount contained in Landlord's said notice, and such rental rate shall
be conclusively deemed to be the Fair Market Rental Value, unless
Tenant notifies Landlord in writing, within 10 business days after
Landlord's notice, that Tenant disputes the aforementioned
determination by Landlord, in which event the parties shall proceed to
the Fair Market Rental Value determination as set forth in Subsection
(c) below.
(c) In the event that Tenant so disputes the determination of the Fair
Market Rental Value by Landlord, and the Landlord and Tenant are
unable to agree on the Fair Market Rental Value within 30 days, the
same shall be determined as follows: Landlord and Tenant each shall,
within thirty (30) days thereafter, appoint an independent appraiser
who shall be instructed to determine independently the Fair Market
Rental Value. If the difference between the amounts so determined by
such appraisers does not exceed ten percent (10%) of the lesser of
such amounts, then the Fair Market Rental Value shall be an amount
equal to fifty percent (50%) of the total of the amounts so
determined. If the difference between the amounts so determined shall
exceed ten percent (10%) of the lesser of such amounts, then such two
(2) appraisers shall have ten (10) days thereafter to appoint a third
appraiser, but if such appraisers fail to do so within such ten (10)
day
6
period, then either Landlord or Tenant may request the Greater Boston
Real Estate Board or any successor organization thereto to appoint an
appraiser within ten (10) days of such request, and both Landlord and
Tenant shall be bound by any appointment so made within such ten (10)
day period. If no such appraiser shall have been appointed within such
ten (10) days either Landlord or Tenant may apply to any court having
jurisdiction to have such appointment made by such court. Any
appraiser appointed by the original appraisers, by the Greater Boston
Real Estate Board or by such court shall be instructed to determine
the Fair Market Rental Value in accordance with the definition of such
term contained herein and within twenty (20) days after its
appointment. If the third appraisal shall exceed the higher of the
first two appraisals, the Fair Market Rental Value shall be the higher
of the first two appraisals; if the third appraisal is less than the
lower of the first two appraisals, the Fair Market Rental Value shall
be the lower of the first two appraisals. In all other cases, the Fair
Market Rental Value shall be equal to the third appraisal.
Notwithstanding the foregoing, if either party shall fail to appoint
its appraiser within the 30 day period specified above (such party
being referred to herein as the "failing party"), the other party may
serve notice on the failing party requiring the failing party to
appoint its appraiser within ten (10) days of the giving of such
notice. If the failing party shall not respond by appointment of its
appraiser within said ten day period, then the appraiser appointed by
the other party shall be the sole appraiser whose determination of the
Fair Market Rental Value shall be binding and conclusive upon Tenant
and Landlord. Each party shall pay for the fees and expenses of the
appraiser appointed by it, but the fees and expenses of the third
appraiser shall be shared equally by the parties. All appraisers
appointed hereunder shall be MAI appraisers, so-called, knowledgeable
in the field of commercial real estate and experienced in the Boston
Metro-West market. The foregoing determination shall be conclusive,
final and binding on the parties and enforceable in any court having
jurisdiction over the parties.
(d) If the parties are unable to agree on the Fair Market Rental Value (or
the arbitration procedure set forth above has not concluded) prior to
the first day of the Extension Term or the date the Available Space is
incorporated into the Premises, Tenant shall make monthly payments on
account of Fixed Rent (in addition to all additional rent and other
payments hereunder) in the amount of Landlord's initial designation of
the Fair Market Rental Value, until the Fair Market Rental Value has
been finally established as herein provided, at which time an
appropriate retroactive Fixed Rent adjustment payment or refund shall
be made, if necessary.
3.2.3. During the Extension Term, Tenant shall continue to pay all
additional rent and other payments as provided in this Lease.
3.3. LATE PAYMENT.
If any Fixed Rent, additional rent or any other payments due hereunder from
Tenant are not paid within 10 days of the due date thereof, Tenant shall be
charged a late fee of $250.00 for each late payment for each month or portion
thereof that said payment remains outstanding. Said late fee shall be payable in
addition to and not in exclusion of any other remedies of Landlord on account of
such late payments, including without limitation the obligation to pay interest
on late payments, as provided in Section 12.3.
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4. USE OF PREMISES; ALTERATIONS
4.1. PERMITTED USE.
4.1.1. Tenant agrees that the Premises shall be used and occupied by Tenant
only for the Permitted Use, as provided in Section 1.2 of this Lease, and for no
other purpose or purposes.
4.1.2. Tenant further covenants and agrees to conform to the following
provisions during the entire Lease Term:
(a) Tenant shall cause all freight (including furniture, fixtures and
equipment used by Tenant in the occupancy of the Premises) to be
delivered to or removed from the Building and the Premises in
accordance with reasonable rules and regulations established by
Landlord therefor and Landlord may require that such deliveries or
removals be undertaken during periods other than Normal Building
Operating Hours.
(b) Tenant shall not place on the exterior of exterior walls (including
both interior and exterior surfaces of windows and doors) or on any
part of the Building outside the Premises, any sign, symbol,
advertisement or the like visible to public view outside of the
Premises except as provided in the next paragraph.
Notwithstanding the foregoing, Tenant may, at Tenant's sole expense,
locate a sign at the entrance door to the Premises of the type
commonly and customarily found in first-class office buildings for the
purpose of identifying and locating the Premises, which sign and
location shall be subject to the prior approval of Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed.
Where Landlord establishes reasonable standards for such signs, Tenant
agrees to conform to the same and to submit for Landlord's prior
approval, such approval not unreasonably to be withheld, conditioned
or delayed, a plan or sketch of the sign to be placed on or about such
entry door and location thereof. Without limitation, lettering on
windows and window displays are expressly prohibited.. Landlord shall
also provide Tenant, and any permitted successor or assign, with a
listing on the Building's main tenant directory.
(c) Tenant shall not perform any act or any practice which may injure the
Premises, or any other part of the Building or the Property, or cause
any offensive odors or loud noise, or constitute a nuisance or a
menace to any other tenant or tenants or other persons in the
Building, or be detrimental to the reputation or appearance of the
Building, and Tenant shall permit no waste with respect to the
Premises or the Property.
(d) Tenant shall conduct Tenant's business in the Premises in such a
manner that Tenant's invitees shall not collect, line up or linger in
the lobby or corridors of the Building, but shall be entirely
accommodated within the Premises.
(e) Tenant shall comply and shall cause all employees to comply with all
rules and regulations from time to time established by Landlord by
suitable notice, including without limitation the current rules and
regulations, a copy of which are attached hereto as Exhibit B.
Landlord shall not, however, be responsible for the noncompliance of
any such rules and regulations by any other tenant or occupant.
(f) Tenant shall, at Tenant's sole expense, promptly comply with all
applicable laws, ordinances, rules, regulations, orders, certificates
of occupancy, conditional use or other
8
permits, variances, covenants and restrictions of record, the
reasonable recommendations of Landlord's engineers or other
consultants, and requirements of any fire insurance underwriters,
rating bureaus or government agencies, now in effect or which may
hereafter come into effect during the Lease Term relating in any
manner to the Premises or the particular occupation or particular use
(as opposed to office use generally, the cost for which shall be part
of Operating Expenses to the extent set forth in Section 8.2) by
Tenant (or any of its employees, visitors or invitees) of the Premises
("Laws and Restrictions").
4.2. ALTERATIONS.
Tenant shall not make any alterations, improvements, additions, utility
installations or repairs (hereinafter collectively referred to as "Alterations")
to the Premises, except in accordance with this Section 4.2 and with the prior
written consent of Landlord, which Landlord agrees not unreasonably to withhold,
condition or delay as to nonstructural Alterations (nonstructural Alterations
being those that do not materially, adversely affect the Building's structure,
roof, exterior or mechanical, electrical, plumbing, life safety or other
Building systems or architectural design, character or use of the Building or
Premises). Without limiting any of the terms hereof, Landlord will not approve
any Alterations requiring unusual expense to readapt the Premises to normal
office use on lease termination or increasing the cost of construction,
insurance or taxes on the Building or of Landlord's services to the Premises,
unless Tenant first gives assurances or security acceptable to Landlord that
such re-adaptation will be made prior to such termination without expense to
Landlord and makes provisions acceptable to Landlord for payment of such
increased cost. All Alterations made by Tenant shall be made in accordance with
plans and specifications which have been approved in writing by the Landlord, in
Landlord's reasonable discretion, pursuant to a duly issued permit, and in
accordance with all Laws and Restrictions, the provisions of this Lease and in a
good and first-class workmanlike manner using new materials of same or better
quality as base building standard materials, free of all liens and encumbrances.
All Alterations shall be performed by a contractor or contractors selected by
Tenant and approved in writing by Landlord, in Landlord's reasonable discretion.
Except for any non-structural Alteration costing less than $10,000.00 (per such
Alteration), Tenant shall pay to Landlord a fee equal to the lesser of (i) five
percent (5%) of the cost of any such Alterations, or (ii) Landlord's actual
costs incurred, to compensate Landlord for the overhead and other costs it
incurs in reviewing the plans therefor and in monitoring the construction of the
Alterations; in the event any non-structural Alteration costing less than
$10,000.00 requires Landlord's specific review or monitoring, Tenant shall pay
the reasonable third party cost therefor incurred by Landlord. If, as a result
of any Alterations made by Tenant, Landlord is obligated to comply with the
Americans With Disabilities Act or any other Laws or Restrictions and such
compliance requires Landlord to make any improvement or Alteration to any
portion of the Building, as a condition to Landlord's consent, Landlord shall
have the right to require Tenant to pay to Landlord prior to the construction of
any Alteration by Tenant, the entire cost of any improvement or alteration
Landlord is obligated to complete by such law or regulation. Tenant agrees to
obtain or cause its contractor(s) to obtain, prior to the commencement of any
work or Alterations, "builder's all risk" insurance in an amount and with such
commercially reasonable coverages approved by Landlord and worker's compensation
insurance in the statutorily required amount(s) and evidence of all such
insurance shall be furnished to Landlord prior to the performance by such
contractor(s) or person(s) of any work in respect of the Premises. Landlord
shall have the right to stop any work not being performed in conformance with
this Lease, and, at its option, but only after notice to Tenant and Tenant fails
to promptly remedy such non-conformance, may repair or remove non-conforming
work at the expense of Tenant. Tenant hereby indemnifies and holds Landlord
harmless from and against any liens, encumbrances and violations of Laws and
Restrictions. The filing of any lien or encumbrance, or the violation of Laws or
Restrictions, shall constitute a default hereunder. The repair and indemnity
obligations of Tenant hereunder, including Tenant's obligations to repay
Landlord the cost
9
of repairing or removing Alterations, shall survive the termination of this
Lease. All Alterations performed by Tenant in the Premises shall remain therein
(unless, at the time of Landlord's consent therefore, Landlord directs Tenant to
remove the same on termination or expiration of this Lease) and, at termination
or expiration, shall be surrendered as a part thereof, except for Tenant's usual
trade fixtures, furniture and equipment installed prior to or during the Lease
term at Tenant's cost, which trade fixtures, furniture and equipment Tenant
shall remove in their entirety prior to the termination or expiration of this
Lease. Tenant agrees to repair any and all damage to the Premises resulting from
such removal (including removal of Tenant's Alterations directed by Landlord)
or, if Tenant fails to do so and Landlord so elects, to pay Landlord for the
cost of any such repairs forthwith after billing therefor.
5. ASSIGNMENT AND SUBLETTING
5.1. GENERALLY.
5.1.1. Notwithstanding any other provisions of this Lease, Tenant covenants
and agrees that it will not assign this Lease or sublet (which term, without
limitation, shall include the granting of any concessions, licenses, occupancy
rights, management arrangements and the like) the whole or any part of the
Premises without, in each instance, having first received the express, written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. A change in Tenant's name shall not constitute an
assignment or sublease hereunder, provided Tenant notifies Landlord in writing
of such name change prior to making such change. Tenant shall not collaterally
assign this Lease (or any portion thereof) or permit any assignment of this
Lease by mortgage, other encumbrance or operation of law.
5.1.2. Without limitation, it shall not be unreasonable for Landlord to
withhold such approval from any assignment or subletting where, in Landlord's
opinion: (i) the proposed assignee or sublessee does not have a financial
standing and credit rating equal to Tenant at the time of this Lease (or at the
time of the proposed assignment or subletting, if greater); (ii) the proposed
assignee or sublessee, in Landlord's reasonable discretion, does not have a good
reputation in the community; (iii) the business in which the proposed assignee
or sublessee is engaged could, in Landlord's reasonable discretion, detract
from, the Building, its value or the costs of ownership thereof; (iv)
Intentionally Deleted; (v) the proposed sublessee or assignee is a current
tenant or a prospective tenant (meaning such tenant has been shown space in the
last six (6) months or has been presented with or has made an offer to lease
space) of the Building or of the Office Park; (vi) the use of the Premises by
any sublessee or assignee (even though a Permitted Use) violates any use
restriction granted by Landlord in any other lease or would otherwise cause
Landlord to be in violation of its obligations under another lease or agreement
to which Landlord is a party; (vii) if such assignment or subleasing is not
approved of by the holder of any mortgage on the Property (if such approval is
required); (viii) a proposed assignee's or subtenant's business will impose a
burden on the Property's parking facilities, elevators, common areas,
facilities, or utilities that is greater than the burden permitted under this
Lease, in Landlord's reasonable judgment; (ix) any guarantor of this Lease
refuses to consent to the proposed transfer or to execute a written agreement
reaffirming the guaranty; (x) Tenant is in default (beyond applicable notice or
cure periods) of any of its obligations under the Lease at the time of the
request or at the time of the proposed assignment or sublease; (xi) if requested
by Landlord, the assignee or subtenant refuses to sign a commercially reasonable
non- disturbance and attornment agreement in favor of Landlord's lender; (xii)
Landlord has sued or been sued by the proposed assignee or subtenant or has
otherwise been involved in a legal dispute with the proposed assignee or
subtenant; (xiii) the assignee or subtenant is involved in a business which is
not in keeping with the then current standards of the Property; (xiv) the
assignment or sublease will result in there being more than two (2) subtenants
of the Premises (e.g., the assignee or subtenant intends to use the Premises as
an executive suite); or (xv) the assignee or subtenant is a governmental or
quasi-governmental entity or
10
an agency, department or instrumentality of a governmental or quasi-governmental
agency. In no event, however, shall Tenant assign this Lease or sublet the whole
or any part of the Premises to a proposed assignee or sublessee which has been
judicially declared bankrupt or insolvent according to law, or with respect to
which an assignment has been made of property for the benefit of creditors, or
with respect to which a receiver, guardian, conservator, trustee in involuntary
bankruptcy or similar officer has been appointed to take charge of all or any
substantial part of the proposed assignee's or sublessee's property by a court
of competent jurisdiction, or with respect to which a petition has been filed
for reorganization under any provisions of the Bankruptcy Code now or hereafter
enacted, or if a proposed assignee or sublessee has filed a petition for such
reorganization, or for arrangements under any provisions of the Bankruptcy Code
now or hereafter enacted and providing a plan for a debtor to settle, satisfy or
extend the time for the payment of debts.
5.1.3. Any request by Tenant for such consent shall set forth or be
accompanied by, in detail reasonably satisfactory to Landlord, the
identification of the proposed assignee or sublessee, its financial condition
and the terms on which the proposed assignment or subletting is to be made,
including, without limitation, a final copy of all assignment and sublease
documents (with copies of such fully executed copies to follow promptly and
Landlord's consent, if granted, shall be expressly conditioned upon receipt
thereof), and clearly stating the rent or any other consideration to be paid in
respect thereto; and such request shall be treated as Tenant's warranty in
respect of the information submitted therewith. Tenant's request shall not be
deemed complete or submitted until all of the foregoing information has been
received by Landlord. Landlord shall respond to such request for consent within
15 business days following Landlord's receipt of all information, documentation
and security required by Landlord with respect to such proposed sublease or
assignment.
5.1.4. The foregoing restrictions shall be binding on any assignee or
sublessee to which Landlord has consented, provided, notwithstanding anything
else contained in this Lease, Landlord's consent to any further assignment,
subleasing or any sub-subleasing by any approved assignee or sublessee may be
withheld by Landlord at Landlord's sole and absolute discretion.
5.1.5. Consent by Landlord to any assignment or subleasing shall not
include consent to the assignment or transferring of any lease renewal,
extension or other option, first offer, first refusal or other rights granted
hereunder, or any special privileges or extra services granted to tenant by
separate agreement (written or oral), or by addendum or amendment of the Lease.
5.1.6. In the case of any assignment of this Lease or subletting of the
Premises, the Tenant named herein shall be and remain fully and primarily liable
for the obligations of Tenant hereunder, notwithstanding such assignment or
subletting, including, without limitation, the obligation to pay the Fixed Rent
and other amounts provided under this Lease, and the Tenant shall be deemed to
have waived all suretyship defenses.
5.1.7. In addition to the foregoing, it shall be a condition of the
validity of any such assignment or subletting that the assignee or sublessee
agrees directly with Landlord, in form satisfactory to Landlord, to be bound by:
(i) with respect to an assignment, all the obligations of Tenant hereunder,
including, without limitation, the obligation to pay Fixed Rent and other
amounts provided for under this Lease, and (ii) with respect to a sublease,
those obligations under the Lease applicable to the subleased premises and/or
incorporated in the sublease; and (iii) with respect to both an assignment and
sublease, the covenant regarding use and the covenant against further assignment
and subletting.
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5.2. REIMBURSEMENT, RECAPTURE AND EXCESS RENT.
5.2.1. Tenant shall, upon demand, reimburse Landlord for the reasonable
fees and expenses (including legal and administrative fees and costs) incurred
by Landlord in processing any request to assign this Lease or to sublet all or
any portion of the Premises, whether or not Landlord agrees thereto, and if
Tenant shall fail promptly so to reimburse Landlord, the same shall be a default
in Tenant's monetary obligations under this Lease subject to the applicable
grace and cure period set forth in Section 12.l(b).
5.2.2. It Tenant requests Landlord's consent to assign this Lease or sublet
all or a portion of the Premises, Landlord shall have the option, exercisable by
written notice to Tenant given within 15 days after Landlord's receipt of
Tenant's completed request, to terminate this Lease as of the date of the
proposed sublease or assignment. In the event of termination in respect of a
portion of the Premises, the portion so eliminated shall be delivered to
Landlord on the date specified in good order and condition in the manner
provided in Section 4.2 at the end of the Term and thereafter, to the extent
necessary in Landlord's judgment, Landlord, at its own cost and expense, may
have access to and may make modification to the Premises (or portion thereof) so
as to make such portion a self-contained rental unit with access to common
areas, elevators and the like. Fixed Rent and the Rentable Floor Area of the
Premises shall be adjusted according to the extent of the Premises for which the
Lease is terminated.
5.2.3. Without limitation of the rights of Landlord hereunder in respect
thereto, if there is any assignment of this Lease by Tenant for consideration or
a subletting of the whole of the Premises by Tenant at a rent which exceeds the
rent payable hereunder by Tenant, or if there is a subletting of a portion of
the Premises by Tenant at a rent in excess of the subleased portion's pro rata
share of the rent payable hereunder by Tenant then Tenant shall pay to Landlord,
as additional rent, forthwith upon Tenant's receipt of, in the case of an
assignment, fifty percent (50%) of all the consideration (or the cash equivalent
thereof) therefor and in the case of a subletting, fifty percent (50%) of all
any such excess rent For the purposes of this subsection the term "rent" or
"consideration" shall mean all Fixed Rent, additional rent or other payments
and/or consideration payable by one party to another for the use and occupancy
of all or a portion of the Premises including, without limitation, key money, or
bonus money paid by the assignee or subtenant to Tenant in connection with such
transaction and any payment in excess of fair market value for services rendered
by Tenant to the assignee or subtenant or for assets, fixtures, inventory,
equipment or furniture transferred by Tenant to the assignee or subtenant in
connection with any such transaction, but shall exclude any separate payments by
Tenant for reasonable attorney's fees, the reasonable cost of any reasonable
Alterations made by Tenant to the Premises (amortized over the Lease Term), and
broker's commissions in connection with such assignment or subletting.
5.2.4. If the Premises or any part thereof are sublet by Tenant, following
the occurrence of a default which has continued beyond the applicable cure
period Landlord, in addition to any other remedies provided hereunder or at law
may at its option collect directly from such sublessee(s) all rents becoming due
to the Tenant under such sublease(s) and apply such rent against any amounts due
Landlord by Tenant under this Lease, and Tenant hereby irrevocably authorizes
and directs such sublessee(s) to so make all such rent payments, if so directed
by Landlord and it is understood that no such election or collection or payment
shall be construed to constitute a novation of this Lease or a release of Tenant
hereunder, or to create any lease or occupancy agreement between the Landlord
and such subtenant or impose any obligations on Landlord or otherwise constitute
the recognition of such sublease by Landlord for any purpose whatsoever.
12
5.2.5. The following terms and conditions shall apply to any subletting by
Tenant of all or any part of the Premises and shall be deemed included in all
subleases under this Lease whether or not expressly incorporated therein:
Tenant hereby absolutely and unconditionally assigns and transfers to
Landlord all of Tenant's interest in all rentals and income arising from any
sublease entered into by Tenant, and Landlord may collect such rent and income
and apply same toward Tenant's obligations under this Lease; provided, however,
that until a default beyond applicable notice and cure periods occurs in the
performance of Tenant's obligations under this Lease, Tenant may receive,
collect and enjoy the rents accruing under such sublease. Landlord shall not, by
reason of this or any other assignment of such rents to Landlord nor by reason
of the collection of the rents from a subtenant, be deemed to have assumed or
recognized any sublease or to be liable to the subtenant for any failure of
Tenant to perform and comply with any of Tenant's obligations to such subtenant
under such sublease, including, but not limited to, Tenant's obligation to
return any security deposit. Tenant hereby irrevocably authorizes and directs
any such subtenant, upon receipt of a written notice from Landlord stating that
a default beyond applicable notice and cure periods exists in the performance of
Tenant's obligations under this Lease, to pay to Landlord the rents due as they
become due under the sublease. Tenant agrees that such subtenant shall have the
right to rely upon any such statement and request from Landlord, and that such
subtenant shall pay such rents to Landlord without any obligation or right to
inquire as to whether such default exists and notwithstanding any notice from or
claim from Tenant to the contrary. In the event Landlord terminates this Lease
by reason of a default of Tenant, Landlord at its option and without any
obligation to do so, may require any subtenant to attorn to Landlord, in which
event Landlord shall undertake the obligations of Tenant under such sublease
from the time of the exercise of said option to the termination of such
sublease; provided, however, Landlord shall not be liable for any prepaid rents
or security deposit paid by such subtenant to Tenant, unless Landlord actually
receives such security deposit, or for any other prior defaults of Tenant under
such sublease.
5.3. CERTAIN TRANSFERS.
5.3.1. If at any time Tenant's interest in this Lease is held by a
corporation, trust, partnership, limited liability company or other entity, the
transfer of a controlling interest in the voting stock, beneficial interests,
partnership interests, membership interests or other ownership interests therein
(whether at one time or in the aggregate) shall be deemed an assignment of this
Lease, and shall require Landlord's prior written consent. The foregoing
provisions shall not be applicable so long as the Tenant is a corporation, the
outstanding voting stock of which is listed on a recognized security exchange,
or if at least 80% of its voting stock is owned by another corporation, the
voting stock of which is so listed. For the purposes hereof, a "controlling
interest" shall mean any transfer that results in the change (whether at one
time or in the aggregate) in the effective control over the management of such
entity.
5.3.2. To enable Landlord to determine the ownership of Tenant, Tenant
agrees to furnish to Landlord, from time to time promptly after Landlord's
reasonable request therefor, (i) if the second to last sentence of subsection
5.3.1 if applicable, proof of listing on a recognized security exchange, or (ii)
if the last sentence of subsection 5.3.1 is not applicable, an accurate and
complete listing of the holders of its stock, beneficial interests, partnership
interests, membership interests or other ownership interests therein as of such
request and as of the date of this Lease. Landlord shall use reasonable efforts
to keep confidential any information received by Landlord pursuant to this
Section 5.3, provided, however, that Landlord shall have the right to disclose
any such information to existing or prospective mortgagees, or prospective
purchasers of the Building.
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5.3.3. Notwithstanding any other provision of this Section, (a)
transactions with an entity (i) into or with which Tenant is merged or
consolidated, (ii) to which all or substantially all of Tenant's assets are
transferred as a going concern, (iii) which controls or is controlled by Tenant
or is under common control with Tenant, or (b) any transfer of stock, equity or
other indicia of ownership of or interest in Tenant resulting from (i) an
initial or subsequent offering, sale transfer or conveyance of such stock,
equity or ownership interest on any recognized securities market, or (ii) the
transfer, exchange, acquisition or conveyance of any stock, equity or other
ownership interest by, to, from any entity providing financing or capitalization
to Tenant, shall not be deemed to be an assignment or subletting within the
meaning of this Section, provided that in any of such events (1) Landlord
receives prior written notice of any such transactions, (2) except in any
instance where Tenant is the surviving entity following any such transaction
described in (a) above, the assignee or subtenant agrees directly with Landlord,
by written instrument in form reasonably satisfactory to Landlord, to be bound
by all the obligations of Tenant hereunder including, without limitation, the
covenant against further assignment and subletting, (3) in no event shall Tenant
be released from its obligations under this Lease, (4) any such transfer or
transaction is for a legitimate, regular business purpose of Tenant other than a
transfer of Tenant's interest in this Lease, and (5) the involvement by Tenant
or its assets in any transaction, or series of transactions (by way of merger,
sale, acquisition, financing, refinancing, transfer, leveraged buy-out or
otherwise) whether or not a formal assignment or hypothecation of this Lease or
Tenant's assets occurs, will not result in a reduction of the "Net Worth" of
Tenant as hereinafter defined as it exists immediately prior to said transaction
or transactions constituting such reduction. "Net Worth" of Tenant for purposes
of this section shall be the net worth of Tenant (excluding any guarantors)
established under generally accepted accounting principles consistently applied.
6. CONDITION OF PREMISES AND RESPONSIBILITY FOR REPAIRS
6.1. CONDITION OF PREMISES.
6.1.1. Subject to Landlord substantially completing Landlord's Work (as
defined below) as set forth herein, Tenant accepts the Premises and the Building
in their present "as is" condition, without representation or warranty, express
or implied, in fact or in law, by Landlord and without recourse to Landlord as
to the nature, condition or usability thereof; and Tenant agrees that except as
expressly set forth in this Section 6.1., Landlord has no work to perform in or
on the Premises to prepare the Premises for Tenant's use and occupancy, and that
any and all work to be done in or on the Premises will be performed by Tenant at
Tenant's sole cost and expense in accordance with the terms of this Lease. It
being understood that Landlord shall deliver the Premises with all electrical,
mechanical, plumbing, HVAC and other systems serving the Premises in good
working order, subject to punchlist items and minor repairs relating thereto
that do not materially interfere with Tenant's use of the Premises and subject
to the terms and conditions of this Lease. Prior to the Commencement Date,
Landlord shall substantially complete the work shown on Exhibit D attached
hereto ("Landlord's Work"). Provided that Tenant does not interfere with or
delay the completion by Landlord or its agents or contractors of Landlord's
Work, Tenant shall have the right to enter the Premises up to fourteen (14) days
prior to the anticipated Commencement Date for the purpose of installing
furniture, trade fixtures, equipment, and similar items. Tenant shall be liable
for any damages or delays caused by Tenant's activities at the Premises.
Provided that Tenant has not begun operating its business from the Premises, and
subject to all of the terms and conditions of the Lease, the foregoing activity
shall not constitute the delivery of possession of the Premises to Tenant and
the Lease term shall not commence as a result of said activities. Prior to
entering the Premises Tenant shall obtain all insurance it is required to obtain
by the Lease and shall provide certificates of said insurance to Landlord.
Tenant shall coordinate such entry with Landlord's building manager, and such
entry shall be made in compliance with all terms and conditions of this Lease
and the Rules and Regulations attached hereto.
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6.2. INTENTIONALLY OMITTED.
6.3. REPAIRS TO BE MADE BY LANDLORD.
6.3.1. Except as otherwise provided in this Lease, Landlord agrees to keep
in good order, condition and repair, the roof, exterior walls, structural
components and common building systems of the Building insofar as they affect or
serve the Premises and the appurtenant common areas of the Building, and to
maintain, repair and replace, in a good working order and condition, the HVAC
(except the supplemental HVAC system and equipment serving Tenant's computer
room as set forth below), plumbing electrical and other mechanical systems and
equipment serving the Premises, unless installed by or for Tenant or exclusively
serving and located within the Premises. Without limitation, Landlord shall in
no event be responsible to Tenant for the condition of glass in and about the
Premises or for the doors leading directly to the Premises, or for any
Alterations installed by or at Tenant's request, or for any condition in the
Premises or, subject to Section 13.22, caused by any act or neglect of Tenant or
any contractor, agent, employee or invitee of Tenant, or anyone claiming by,
through or under Tenant. Landlord also agrees to maintain the parking areas,
roadways and landscaping on the Property surrounding the Building in good order
and repair, including but not limited to providing adequate lighting and snow
removal therefrom. Landlord shall not be responsible to make any improvements or
repairs to the Building or the Premises other than as expressed in this Section
unless expressly otherwise provided in this Lease. All costs incurred by
Landlord in connection with the foregoing obligations shall be included as part
of Operating Expenses, subject to the terms of Section 8.2.
6.3.2. Landlord shall never be liable for any failure to make repairs
which, under the provisions of this Section or elsewhere in this Lease, Landlord
has undertaken to make unless: (a) Tenant, to the extent it has knowledge of any
such defective condition, has given notice to Landlord of the need to make such
repairs as a result of a condition in the Building or in the Premises requiring
any repair for which Landlord is responsible; and (b) Landlord has failed to
commence to make such repairs within a reasonable time after receipt of such
notice if any repairs are, in fact, necessary.
6.4. MAINTENANCE AND REPAIRS TO BE MADE BY TENANT.
6.4.1. Tenant covenants and agrees that Tenant will keep neat and clean and
maintain in good order, condition and repair, the Premises and every part
thereof (and any signs permitted hereunder), and specifically including, without
limitation, the supplemental HVAC system and equipment serving Tenant's computer
room, throughout the Lease Term, excepting only those repairs for which Landlord
is responsible under the terms of this Lease, damage by fire or other casualty
or as a consequence of the exercise of the power of eminent domain and
reasonable wear and tear and Tenant shall surrender the Premises at the end of
the Term in such condition. Without limitation, Tenant shall maintain and use
the Premises in accordance with all Laws and Restrictions and shall, at Tenant's
own expense obtain and maintain in effect all permits, licenses and the like
required by applicable law, all to the extent necessitated by Tenant's (or any
of its employee's, invitee's or customer's) particular use of the Premises, as
opposed to "office use" generally which will be the responsibility of Landlord
and the cost for which shall be included in Operating Expenses, subject to the
terms of Section 8.2. Tenant shall not permit or commit any waste, and Tenant
shall be responsible for the cost of repairs which may be made necessary by
reason of damage to any areas in the Building or Office Park, including the
Premises, by Tenant, Tenant's contractors or Tenant's agents, employees,
invitees, or anyone claiming by, through or under Tenant. Landlord may replace
as needed any bulbs and ballasts in the Premises during the Lease Term at
Tenant's cost and expense, or Landlord may require Tenant to replace the same,
at Tenant's cost and expense. Tenant shall pay Landlord, as additional rent, the
cost of Landlord (or its agents) either performing, or entering into a contract
for, regularly scheduled (monthly or quarterly as reasonably
15
determined by Landlord) preventive maintenance/service for the supplemental HVAC
system and equipment serving Tenant's computer room; provided that during the
first Lease Year, Tenant shall not be required to pay for any repairs or
replacements relating to the supplemental HVAC system, except for such
preventative maintenance/service and/or incidental repairs and replacements
relating thereto (e.g., filters, hoses and other de minimis items).
6.4.2. If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if Tenant
fails, refuses or neglects to commence such repairs and complete the same with
reasonable dispatch after such demand, Landlord may (but shall not be obligated
to) make or cause such repairs to be made and shall not be responsible to Tenant
for any loss or damage that may accrue to Tenant's stock or business by reason
thereof. If Landlord makes or causes such repairs to be made, Tenant agrees that
Tenant will forthwith, on demand, pay to Landlord the reasonable cost thereof,
and if Tenant shall fail to so reimburse Landlord upon demand, Landlord shall
have the remedies provided for the nonpayment of rent or other charges payable
hereunder.
6.5. FLOOR LOAD - HEAVY MACHINERY; OCCUPANT DENSITY.
6.5.1. Tenant shall not place a load upon any floor in the Premises
exceeding the floor load per square foot of area which such floor was designed
to carry and which is allowed by law. Landlord reserves the right to prescribe
the weight and position of all business machines and mechanical equipment,
including safes, which shall be placed so as to distribute the weight. Business
machines and mechanical equipment shall be placed and maintained by Tenant at
Tenant's expense in settings sufficient, in Landlord's judgment, to absorb and
prevent vibration, noise and annoyance. Tenant shall not move any safe, heavy
machinery, heavy equipment, freight, bulky matter or fixtures into or out of the
Building without Landlord's prior consent, which shall not be unreasonably
withheld, conditioned or delayed.
6.5.2. If such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons holding
a Master Rigger's License to do said work, and that all work in connection
therewith shall comply with applicable laws and regulations. Any such moving
shall be at the sole risk and hazard of Tenant and Tenant will exonerate,
indemnify and save Landlord harmless against and from any liability, loss,
injury, claim or suit resulting directly or indirectly from such moving. Tenant
shall schedule such moving at such times as Landlord shall require for the
convenience of the normal operations of the Building.
6.5.3. Tenant shall maintain a ratio of not more than one Occupant (as
defined below) for each two hundred (200) square feet of rentable area in the
Premises. Landlord shall have the right to periodically visit the Premises
without advance notice to Tenant in order to track the number of Occupants
arriving at the Premises, provided, however, Landlord shall use commercially
reasonable effort so as not to materially interfere with Tenant's business
operations during any such visit. For purposes of this section, "Occupants"
include employees, visitors, and contractors, but shall use commercially
reasonable effort so as to not materially include people not employed by Tenant
that deliver or pick up mail or other packages at the Premises, employees of
Landlord or employees of Landlord's agents or contractors. Tenant acknowledges
that increased numbers of Occupants causes additional wear and tear on the
Premises and the Common Areas, additional use of electricity, water and other
utilities, and additional demand for other Building services.
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7. SERVICES; UTILITY CHARGES
7.1. LANDLORD'S SERVICES.
7.1.1. Landlord covenants during the Term:
(a) To furnish, through Landlord's employees or independent contractors,
electricity (for lights, convenience receptacles, and normal office
machines and equipment in the Premises, subject to Section 7.2 below,
and for the common areas and facilities), heat, air conditioning and
ventilation and nightly janitorial and general cleaning services to a
level customarily provided by operators of buildings such as the
Building; it is understood, however, that heat, air conditioning and
ventilation and certain other services shall only be furnished during
Normal Building Operating Hours; and
(b) To furnish, through Landlord's employees or independent contractors,
additional Building operation services upon reasonable advance request
of Tenant at rates from time to time established by Landlord to be
paid by Tenant provided the same may be reasonably and conveniently
provided by Landlord. Tenant hereby agrees to pay to Landlord the cost
of such additional services as additional rent upon demand by
Landlord.
7.1.2. Intentionally Omitted.
7.1.3. All costs incurred by Landlord in connection with foregoing services
shall be included as part of the Operating Expenses.
7.2. UTILITY SERVICES AND CHARGES.
7.2.1. The Tenant shall obtain directly from the supplier or utility
company any services (such as telephone service, or should it be separately
metered and provided as provided in Section 7.3 below, electrical service) not
provided to the Premises by Landlord, and Tenant shall pay all charges therefor
when due. If requested by Landlord, Tenant shall promptly provide Landlord with
evidence of such payment. If such utility company shall have a lien on the
Premises for nonpayment of such charges and Tenant shall fail at any time to
make payment of same, without limitation of Landlord's rights on account of such
failure, Tenant shall thereafter, if requested by Landlord, pay to Landlord,
when monthly Fixed Rent is next due and thereafter on Landlord's demand, an
amount reasonably estimated by Landlord to be sufficient to discharge any such
lien in the event of a further failure of Tenant to pay any such charges when
due. Landlord shall hold the amounts from time to time deposited under this
Section 7.2 as security for payment of such charges and may, without limitation
of remedies on account of Tenant's failure to make any subsequent payment of
such charges, use such amounts for such payments. Such amount or such portion
thereof as shall be unexpended at the expiration of this Lease shall, upon full
performance of all Tenant's obligations hereunder, be repaid to Tenant without
interest.
7.2.2. Tenant shall not introduce to the Premises fixtures or equipment
which (individually or in the aggregate) exceed those used by the average office
tenant or overload the capacity of the electrical, heating, ventilating and air
conditioning, mechanical, plumbing or other utility systems serving the
Premises; such capacities shall be deemed overloaded if such use by Tenant
exceeds, on a square foot basis, the capacity of such systems; and in no event
shall the electrical usage at the Premises exceed 4 xxxxx per square foot. If
Tenant uses the Premises or installs fixtures or equipment in such a manner as
would so overload said systems, as reasonably determined by Landlord, Tenant
shall pay, as additional rent, within 10 days of billing therefor, the cost of
providing and installing any additional equipment,
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facilities or services that may be required as a result thereof, and for any
repairs or damage resulting therefrom. Landlord acknowledges that the current
use by Tenant of the Premises is permitted under this Section.
7.2.3. All costs incurred by Landlord in connection with utility services
provided to the Premises shall be included as part of the Operating Expenses,
subject to the terms of Section 8.2.
7.2.4. Landlord shall not be responsible for any interruption of
electricity, oil, water, sewer, telephone, data or other utility or Building
services supplied to the Premises. Furthermore, Landlord shall not be liable for
loss of property or for injury to, or interference with, Tenant's business,
including, without limitation, loss of profits, however occurring, through or in
connection with or incidental to an interruption of any such services or
utilities. Landlord may comply with voluntary controls or guidelines promulgated
by any governmental entity relating to the use or conservation of energy, water,
gas, light or electricity or the reduction of automobile or other emissions
without creating any liability of Landlord to Tenant under this Lease.
7.3. ELECTRICAL SERVICE AND ELECTRICAL CHARGE.
7.3.1. It is understood that the electrical service for the Premises (for
lights and convenience outlets) is currently separately metered from service
provided to other rentable spaces and common areas of the Building. Accordingly,
(i) Tenant shall make arrangements for such electrical service directly with the
utility supplier, and (ii) Landlord shall have no obligations to Tenant with
respect to electrical service to the Premises.
7.3.2. Nothing in Section 7.3.1 shall relieve Tenant from its obligation to
pay as part of Operating Expenses, Tenant's share of electrical charges relating
to the common areas as set forth in this Lease.
7.3.3. Intentionally Deleted.
8. ADDITIONAL RENT FOR TAXES AND OPERATING EXPENSES
8.1. TENANT'S PAYMENT OF ITS SHARE OF REAL ESTATE TAXES.
8.1.1. For the purposes of this Section, the following terms shall have the
following meaning:
"Tax Year" shall mean the twelve-month period in use in the Town of
Burlington for the purpose of imposing ad valorem taxes upon real property. In
the event that such Town changes the period of its tax year, "Tax Year" shall
mean a twelve-month period commencing on the first day of such new tax year, and
each twelve-month period commencing on the anniversary of such date during the
Term of this Lease.
"Taxes" shall mean all taxes and assessments of every kind and nature
imposed, assessed or levied by a governmental authority on the Property,
including without limitation all real estate taxes, betterments, assessments
(ordinary and extraordinary), water rents, sewer, and other charges. If taxes
upon rentals or otherwise pertaining to the Property (including without
limitation any tax on rentals or income or any value added tax, so called) shall
be substituted, in whole or in part, for the present ad valorem real estate
taxes, or shall be assessed in addition thereto, then the term "Taxes" shall
include such substituted taxes, to the extent to which the same shall be a
substitute for present ad valorem real estate taxes, together with any such
additional taxes. The term "Taxes" shall not include any inheritance or estate
taxes, or any taxes on income to the extent applicable to Landlord's net income.
Landlord
18
acknowledges that the Building and improvements relating thereto are the only
taxable improvements located on the Lot.
8.1.2. In the event that the Taxes imposed with respect to the Property
shall be greater during any Tax Year (and in the event the Town shall first send
estimated tax bills, until a final xxxx is sent [at which time Tenant's share of
real estate taxes shall be recomputed], real estate taxes shall be such taxes as
shown on the estimated tax xxxx) than the Tax Base (as defined in Section 1.2),
Tenant shall pay to Landlord, as additional rent, the amount obtained by
multiplying the amount by which the Taxes exceed the Tax Base by a fraction, the
numerator of which is the Rentable Floor Area of the Premises and the
denominator of which is the Rentable Floor Area of the Building.
8.1.3. Landlord shall submit to Tenant a statement setting forth the amount
of such additional rent, and within 30 days after the delivery of such statement
(whether or not such statement shall be timely), Tenant shall pay to Landlord
the payment under subparagraph 8.1.2 above. So long as the Taxes, or any portion
thereof, shall be payable in installments, Landlord may submit such statements
to Tenant in similar installments. The failure by Landlord to send any statement
required by this subparagraph shall not be deemed to be a waiver of Landlord's
right to receive such additional rent.
8.1.4. If the first day of the Tax Year in such Town of Burlington should
be changed after the Commencement Date so as to change the twelve-month period
comprising the Tax Year, or if the Tax Year shall be a period of time other than
twelve months, in determining the additional rent to be paid by Tenant under
this Section with respect to the Taxes payable by Tenant for any such Tax Year,
including a partial Tax Year, the Tax Amount shall be pro-rated on a per day
basis.
8.1.5. Any betterment assessment, so-called "rent tax" or any other tax
levied or imposed by any governmental authority in addition to, in lieu of or as
a substitute for real estate taxes, shall nevertheless be deemed to be real
estate taxes for the purpose of this Section, provided, however, any such
amounts shall be payable by Tenant as if Landlord had elected to pay over the
longest period permitted by law.
8.1.6. Tenant's obligations to pay additional rent under this Section on
account of Taxes shall commence on the Commencement Date.
8.1.7. If Tenant is obligated to pay any additional rent as aforesaid with
respect to any Tax Year or fraction thereof during the Term then Tenant shall
pay, as additional rent, on the first day of each month of the next ensuing Tax
Year, estimated monthly tax escalation payments equal to 1/12 of the annualized
amount of additional rent payable hereunder for said previous Tax Year (or as
otherwise reasonably estimated by Landlord). Estimated monthly tax escalation
payments for each ensuing Tax Year shall be made retroactively to the first day
of the Tax Year in question.
8.1.8. In the event that Landlord obtains an abatement, reduction or refund
of any Taxes for a Tax Year which Tenant was obligated to pay a share of the
increase in Taxes, then Tenant shall receive as a credit against its payment
obligations under this Section, its proportionate share of the net proceeds of
such abatement, reduction or refund (after deduction of all reasonable costs,
including legal and appraisal fees, incurred by Landlord in obtaining the same)
but only to the extent and not in excess of any payments made by Tenant for such
increase as required under this Section. Landlord shall be under no obligation
to seek such an abatement, reduction or refund. To the extent same are not
credited as aforesaid, any of Landlord's reasonable costs (including legal and
appraisal fees) incurred in attempting to obtain an abatement, reduction or
refund shall be deemed Operating Expenses hereunder. Tenant shall not contest
19
by any proceedings the assessed valuation of Landlord's Property or any part
thereof for purposes of obtaining a reduction of its assessment or of any taxes.
8.1.9. Tenant shall pay prior to delinquency all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Premises or related to Tenant's use of the
Premises. If any of Tenant's personal property shall be assessed with Landlord's
real or personal property, Tenant shall pay to Landlord the taxes attributable
to Tenant within ten (10) days after receipt of a written statement from
Landlord setting forth the taxes applicable to Tenant's property.
8.2. TENANT'S PAYMENT OF ITS SHARE OF OPERATING EXPENSES.
8.2.1. For the purposes of this Section, the following terms shall have the
following meanings:
"Operating Year" shall mean the calendar year, or such other
twelve-month period as Landlord may designate from time to time.
"Operating Expenses" shall mean all expenses incurred by or
attributable to Landlord in operating and maintaining the Building and Lot and
their appurtenances, including but without limitation: premiums for fire,
casualty, liability, rental interruption and such other insurance as Landlord
may from time to time maintain with respect to the Lot and Building; security
expenses; compensation and all fringe benefits, worker's compensation insurance
premiums and payroll taxes paid by Landlord to, for or with respect to all
persons engaged in operating, maintaining, or cleaning of the Building, the
common areas of the Lot on which the Building is located; steam, water, sewer,
electric, gas, telephone and other utility charges not billed directly to
tenants by Landlord or the utility; costs of building and cleaning supplies and
equipment (including rental); cost of maintenance, cleaning and repairs; cost of
snow plowing or removal, or both and care of landscaping and irrigation systems;
the cost of operating, replacing, modifying and/or adding improvements or
equipment mandated by any law, statute, regulation or directive of any
governmental agency and any repairs or removals necessitated thereby; the cost
of installing intrabuilding network cabling ("INC") and maintaining, repairing,
securing and replacing existing INC; payments to independent contractors under
service contracts for cleaning, operating, managing, maintaining and repairing
the Building and said common areas (which payments may be to affiliates of
Landlord, but only at commercially reasonable rates); all other expenses paid in
connection with the operation, cleaning, maintenance and repair of the Building
and said common areas, or either; reasonable reserves for the replacement of
equipment contained in and/or used in connection with the operation of the
Building; the amortized portion (over the useful life of such equipment or
otherwise consistent with generally accepted accounting principles), properly
attributable to the Operating Year in question, of the cost, with interest
thereon at a rate reasonably determined by Landlord, of any capital repairs,
improvements or replacements made to the Building or the Property, by Landlord
which, with respect to capital improvements, are anticipated to result in a
reduction in (or minimize increases in) Operating Expenses or are required under
any governmental law or regulation not applicable to the Building as of the
Commencement Date; and a commercially reasonable management fee based on a
percentage of the gross rentals of the Building. The Operating Expenses shall
also include the Building's share (as reasonably determined and allocated by
Landlord; which determination(s) and/or allocation(s) shall not materially
change during the Term unless the factor(s) on which such determination or
allocation change(s)) of: (i) the costs incurred by Landlord in operating,
maintaining, repairing, insuring and paying real estate taxes upon any common
facilities of the Office Park (including, without limitation, the common
facilities from time to time serving the Lot or Building in common with other
buildings or parcels of land), such as any so-called "loop" access roads,
retention ponds, sewer and other utility lines, amenities and the like; (ii)
shuttle bus service (if and so long as Landlord shall provide the same); (iii)
the
20
actual or imputed cost of the space occupied by on-the-grounds building
attendant(s) and related personnel and the cost of administrative and or service
personnel whose duties are not limited solely to the Building and/or the Lot, as
allocated to the Building and/or Property by Landlord; and (iv) payments made by
Landlord under any easement, license, operating agreement, declaration,
restrictive covenant, or instrument pertaining to the payment or sharing of
costs among Office Park property owners.
Notwithstanding any other provision of this Lease, Operating Expenses
shall not include costs and expenses (including legal or other professional
fees) relating to the following:
(a) Salaries, wages, benefits and other expenses of employment of officers
and executives of Landlord and other employees of Landlord to the
extent such other employees are not directly involved in operation,
repair, maintenance and management of the Property;
(b) Landlord's general overhead.
(c) Depreciation of the Property or the Office Park;
(d) Principal, interest and other charges payable in connection with any
debt;
(e) Rent and other charges payable under any ground lease or other lease
to which this Lease is subordinate;
(f) Charges properly attributable to or payable by a particular tenant or
tenants of the Building or the Office Park or for which Landlord
receives or is entitled to receive reimbursement from insurance
proceeds or from another third party;
(g) Any utility or other service furnished to premises leased to any
tenant or occupant of the Building or the Office Park, if such utility
or service is not furnished to Tenant or if Tenant's use or
consumption of such utility or service is separately metered or
submetered at the Premises;
(h) Vacant spaces except to the extent set forth in Section 8.2.2 below;
(i) Negotiations or disputes with tenants or prospective tenants;
(j) Any judgment, settlement or arbitration award resulting from any tort
liability;
(k) Efforts to lease portions of the Building or the Office Park or to
secure new tenants for the Building or the Office Park, including
advertising expenses, leasing fees or commissions, attorneys' fees and
other professional fees;
(l) Improvements, alterations and additions to the Building or the Office
Park or any leased premises that are not generally beneficial to all
tenants of the Office Park;
(m) Expansion of the rentable area of the Building or the Office Park;
(n) Any breach or violation of a law, lease or other obligation by
Landlord or Landlord's employees, agents or contractors, including
fines, penalties and attorney's fees;
(o) Improvements, alterations, repairs and replacements necessary to bring
the Property or the Office Park into compliance with Laws existing and
of general applicability to the
21
Building as of the Commencement Date, including the Americans with
Disabilities Act of 1990 (42 U.S.C. Section 12101, et. seq., as
amended from time to time) (the "ADA");
(p) Any capital expenditure, except to the extent permitted above
(q) Any repair relating solely to the foundation, structural floor slab,
structural skeleton and structural components of the roof (excluding,
without limitation, the roof membrane) of the Building, not arising
from or relating to other operations of Landlord properly included in
Operating Costs, and specifically excluding windows and window framing
and systems, doors and door framing and systems, Building exterior,
and mechanical, electrical, plumbing, or life safety or other Building
systems; and
(r) costs relating to hazardous clean up on the Lot.
8.2.2. If, during any Operating Year (including the Operating Year used for
determining the Base Operating Expenses), less than 95% of the rentable area of
the Building is occupied, those Operating Expenses, the cost of which vary by
occupancy, shall be equitably adjusted by Landlord, on an item by item basis, as
appropriate, to reflect Operating Expenses based on 95% occupancy.
8.2.3. In determining the Base Operating Expenses, there shall be excluded
from the Operating Expenses for said Operating Year any non-recurring capital
expenditures.
8.2.4. After the expiration of each Operating Year, Landlord shall furnish
Tenant with a statement setting forth, in reasonable detail, the Operating
Expenses for such Operating Year. Such statement shall be accompanied by a
computation of the amount, if any, of the additional rent payable to Landlord
pursuant to this Section.
8.2.5. In the event the Operating Expenses during any Operating Year shall
be greater than the Base Operating Expenses (as defined in Section 1.2), Tenant
shall pay to Landlord, as additional rent, the amount obtained by multiplying
the amount by which the Operating Expenses exceed the Base Operating Expenses by
a fraction, the numerator of which is the Rentable Floor Area of the Premises
and the denominator of which is the Rentable Floor Area of the Building.
8.2.6. Said additional rent shall, with respect to the Operating Years in
which the Commencement Date and end of the Term of this Lease fall, be pro-rated
on a per day basis. If Landlord shall change its Operating Year, appropriate
adjustment shall be made for any Operating Year less than or greater than
twelve-months which may result.
8.2.7. Any additional rent payable by Tenant under this Section shall be
paid within 30 days after Landlord has furnished Tenant with the statement
described above.
8.2.8. Tenant's obligations to pay additional rent under this Section on
account of Operating Expenses shall commence on the Commencement Date.
8.2.9. If with respect to any Operating Year or fraction thereof during the
Term, Tenant is obligated to pay any additional rent as aforesaid, then Tenant
shall pay, as additional rent, on the first day of each month of the next
ensuing Operating Year, estimated monthly operating escalation payments equal to
1/12th of the amount of additional rent payable hereunder for said previous
Operating Year (or as otherwise reasonably estimated by Landlord). Estimated
monthly operating escalation payments for each ensuing Operating Year shall be
made retroactively to the first day of the Operating Year in question.
22
8.2.10. Landlord shall permit Tenant, at Tenant's expense and during normal
business hours, but only one time with respect to any Operating Year, to review
Landlord's invoices and statements relating to the Operating Expenses for the
applicable Operating Year for the purpose of verifying the Operating Expenses
and Tenant's share thereof; provided that notice of Tenant's desire to so review
is given to Landlord not later than 30 days after Tenant receives an annual
statement from Landlord, and provided that such review is thereafter commenced
and prosecuted by Tenant with due diligence. Any Operating Expenses statement or
accounting by Landlord shall be binding and conclusive upon Tenant unless (i)
Tenant duly requests such audit within such 30-day period, and (ii) within 3
months after such audit request, Tenant shall notify Landlord in writing that
Tenant disputes the correctness of such statement, specifying the particular
respects in which the statement is claimed to be incorrect. Tenant shall have no
right to conduct a review or to give Landlord notice that it desires to conduct
a review at any time Tenant is in default under the Lease. The accountant
conducting the review shall be compensated on an hourly basis and shall not be
compensated based upon a percentage of overcharges it discovers. No subtenant
shall have any right to conduct a review, and no assignee shall conduct a review
for any period during which such assignee was not in possession of the Premises.
Tenant agrees that the results of any Operating Expense review shall be kept
strictly confidential by Tenant and shall not be disclosed to any other person
or entity.
9. INDEMNITY AND INSURANCE
9.1. INDEMNITY.
9.1.1. Except for the negligence or willful misconduct of Landlord (or
those for whom Landlord is legally responsible), to the maximum extent this
agreement may be made effective according to law, Tenant shall indemnify and
save harmless Landlord (together with its officers, directors, stockholders,
partners, beneficial owners, trustees, managers, members, employees, agents,
contractors, attorneys, and mortgagees) from and against all claims of whatever
nature arising from: (i) any act, omission or negligence of Tenant, or Tenant's
contractors, licensees, invitees, agents, servants or employees ("Tenant's
Agents"), or any default or failure to perform an obligation (after applicable
notice and cure periods) by Tenant hereunder; or (ii) any accident, injury,
damage or loss whatsoever caused to any person or property during the Term, and
thereafter, so long as Tenant is in occupancy of any part of the Premises, and
occurring in the Premises, or arising out of the use and occupancy of the
Premises by Tenant and Tenant's Agents; or (iii) any accident, injury, damage or
loss occurring outside of the Premises, where such accident, injury, damage or
loss results or is claimed to have resulted from the act, omission or negligence
of Tenant or Tenant's Agents. Tenant's obligations hereunder shall include any
other matters for which Tenant has agreed to indemnify Landlord pursuant to any
other provision of this Lease.
9.1.2. This indemnity and hold harmless agreement shall include indemnity
against all reasonable costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon and providing a
defense, with counsel reasonably satisfactory to Landlord, at Tenant's sole
expense, within ten (10) days after written demand from Landlord, of any claims,
action or proceeding arising out of or relating hereto whether or not litigated
or reduced to judgment and whether or not well founded.
9.2. INSURANCE.
9.2.1. Tenant shall obtain and keep in force and effect during the Term, at
its own cost and expense, commercial general liability and property damage
insurance, on an occurrence basis, including a special form commercial general
liability endorsement, a contractual liability endorsement, and host
23
liquor liability coverage if Tenant serves or allows to be served any alcoholic
beverages on or about the Premises, such insurance to afford protection in an
amount of not less than $5,000,000 for injury, death, property damage or other
loss arising out of any one occurrence, protecting Tenant as insured, and naming
Landlord, Landlord's mortgagees, property managers and managing agents as
additional insureds, against any and all claims for bodily injury, personal
injury, death, property damage or other loss occurring in, upon, adjacent to or
connected with the Premises or any part thereof and contain the "Amendment of
the Pollution Exclusion" for damage caused by heat, smoke or fumes from a
hostile fire. The policy shall not contain any intra-insured exclusions as
between insured persons or organizations, but shall include coverage for
liability assumed under this Lease as an "insured contract" for the performance
of Tenant's indemnity obligations under this Lease. Landlord may from time to
time during the Term increase the coverages required of Tenant hereunder to that
customarily carried in the area in which the Premises are located on property
similar to the Premises.
9.2.2. Tenant further agrees to maintain: (i) workers' compensation and
employers' liability insurance with a limit of liability as required by law to
be maintained; and (ii) so called "Special Form" insurance coverage for all of
its contents, furniture, furnishings, equipment, improvements, fixtures and
personal property located at the Premises providing protection in an amount
equal to one hundred percent (100%) of the replacement cost basis of said items,
containing commercially reasonable deductibles. If this Lease is terminated as
the result of a casualty in accordance with Section 11, the proceeds of said
insurance attributable to the replacement of all tenant improvements installed
at the Premises by Landlord or at Landlord's cost shall be paid to Landlord.
9.2.3. The insurance required hereunder shall be written in form and
substance satisfactory to Landlord by a good and solvent insurance company of
recognized standing, admitted to do business in Massachusetts, with a general
policyholder's rating of not less than A- and financial rating of not less than
Class XIII (as rated in the most current Best's Insurance Reports), which
company shall be reasonably satisfactory to Landlord. Tenant shall procure,
maintain and place such insurance and pay all premiums and charges therefor, and
upon failure to pay all premiums and charges (and without limiting any other
remedies on account thereof), Landlord may, but shall not be obligated to,
procure, maintain and place such insurance or make such payments, and in such
event, Tenant agrees to pay the amount thereof to Landlord on demand, as
additional rent hereunder.
9.2.4. Tenant shall cause to be included in all such insurance policies a
provision to the effect that the same will be non-cancelable except upon 30 days
written notice to Landlord. Prior to the Commencement Date, certificates of
insurance shall be deposited with the Landlord. Any renewals, replacements and
endorsements shall also be deposited with Landlord, in the case of renewals,
same shall be so deposited at least 30 days prior to the expiration of the prior
policy.
9.3. TENANT'S RISK.
To the maximum extent this Agreement may be made effective according to law,
Tenant agrees its use and occupancy of the Premises shall be at Tenant's sole
risk; and Landlord shall have no responsibility or liability for any loss of or
damage to furniture, fixtures, equipment or other personal property of Tenant
for any reason whatsoever; and Landlord shall not be responsible or liable for
any loss or damage resulting to Tenant or those claiming by, through or under
Tenant, or its or their property, from the breaking, bursting, stopping or
leaking of electric cables and wires, water, gas, sewer or steam pipes,
sprinklers, and from roof leaks and the like. The provisions of this Section
shall be applicable from and after the execution of this Lease, and until the
end of the Lease Term, and during such further period as Tenant may use or be in
occupancy of any part of the Premises or of the Building.
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9.4. INJURY CAUSED BY THIRD PARTIES.
To the maximum extent this agreement may be made effective according to law,
Tenant agrees that Landlord shall not be responsible or liable to Tenant, or to
those claiming by, through or under Tenant, for any loss or damage that may be
occasioned by or through the acts or omissions of any third parties, including
without limitation persons occupying adjoining premises or any part of the
premises adjacent to or connecting with the Premises or any part of the
Building, or otherwise.
9.5. LANDLORD'S INSURANCE.
During the Term, Landlord shall secure and carry a policy of insurance covering
the Building for direct risk of physical loss in such coverage amounts and
values as Landlord (or its Lender) shall deem necessary or appropriate in its
sole but reasonable discretion, the cost for which shall be included in
Operating Expenses.
10. LANDLORD'S ACCESS TO PREMISES
10.1. LANDLORD'S RIGHT OF ACCESS.
Upon reasonable advance notice to Tenant (except in case of emergency in which
event no such notice shall be required), Landlord shall have the right to enter
the Premises at all reasonable business hours and after normal business hours
for the purpose of inspecting or making repairs to the same (or to the
Building), and Landlord shall also have the right to make access available at
all reasonable hours to prospective or existing mortgagees or purchasers of any
part of the Building. Any such entry shall be made in a manner so as to minimize
unreasonable interference with Tenant's business operations.
10.2. EXHIBITION OF SPACE TO PROSPECTIVE TENANTS.
For a period of 12 months prior to the expiration of the Lease Term, and during
any period in which Landlord is considering exercising its recapture rights (as
provided in Section 5.2), or after Landlord has exercised same, and upon
reasonable advance notice to Tenant, Landlord may have reasonable access to the
Premises at all reasonable hours for the purpose of exhibiting the same to
prospective tenants, and may post suitable notice on the Premises advertising
the same for rent.
10.3. KEYS.
Landlord shall have the right to retain keys and electric codes or card keys to
the locks and card key access systems and other security systems on the entry
doors to the Premises and all interior doors at the Premises.
11. FIRE, EMINENT DOMAIN, ETC.
11.1. FIRE OR OTHER CASUALTY.
11.1.1. If the Premises or the Building are damaged in whole or in part by
any fire or other casualty (a "casualty"), with respect to the Premises only,
Tenant shall immediately give notice thereof to the Landlord. Unless this Lease
is terminated as provided herein, the Landlord, at its own expense (except for
any insurance deductibles, which shall be deemed Operating Expenses in
accordance with Section 8.2), and proceeding with due diligence and all
reasonable dispatch, but subject to delays beyond the reasonable control of
Landlord, shall repair and reconstruct the same so as to restore the Premises
(but not any alterations or additions made by or for Tenant or any trade
fixtures, equipment or personal
25
property of Tenant) to substantially the same condition they were in prior to
the casualty, subject to zoning and building laws then in effect.
Notwithstanding the foregoing, in no event shall Landlord be obligated either to
repair or rebuild if the damage or destruction results from an uninsured
casualty or if the costs of such repairing or rebuilding exceeds the amount of
the insurance proceeds (net of all costs and expenses incurred in obtaining
same) received by Landlord on account thereof. Landlord shall not be liable for
any inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting from delays in repairing such damage. If such damage or destruction
occurs as a result of the negligence or the intentional acts of Tenant or
Tenant's employees, agents, contractors or invitees, and the proceeds of
insurance which are actually received by Landlord are not sufficient to pay for
the repair of all of the damage, Tenant shall pay, at Tenant's sole cost and
expense, to Landlord upon demand, the difference between the cost of repairing
the damage and the insurance proceeds received by Landlord.
11.1.2. The Landlord shall, within 45 days after the occurrence of a
casualty, provide Tenant with a good faith estimate of the time required to
repair the damage to the Premises or the Building, as provided herein; if such
estimate is for a period of more than 180 days from the occurrence of the
casualty (or during the last 18 months of the Term, for a period of more than 90
days), the Premises shall be deemed "substantially damaged". If the Premises or
the Building are substantially damaged, Landlord may elect to terminate this
Lease by giving Tenant written notice of such termination within 60 days of the
date of such casualty; and if the Premises or the Building are substantially
damaged, and if as a result the Premises are rendered untenantable for the
Permitted Use, or, if, in fact, the Premises are not so repaired within the
estimated time period, then Tenant may terminate this Lease by giving Landlord
written notice of such termination within 60 days of the date of such casualty,
or within 30 days of the expiration of such estimated time period.
11.1.3. For so long as such damage results in material interference with
the operation of Tenant's use of the Premises which material interference causes
Tenant to be unable to use the Premises, the Fixed Rent and additional rent
payable by Tenant shall xxxxx or be reduced proportionately for the period,
commencing on the day following such material interference and continuing until
the Premises has been substantially restored. Notwithstanding the foregoing, if
such casualty was due to the fault or neglect of Tenant or Tenant's employees,
contractors or agents, such abatement or reduction shall be made only if and to
the extent of any proceeds of rental interruption insurance actually received by
Landlord and allocated to the Premises.
11.1.4. If the Premises are damaged by a casualty, and the Lease is not
terminated as provided herein, the Tenant, at its own expense, and proceeding
with all reasonable dispatch, shall repair and reconstruct all of the
improvements, alterations and additions made to the Premises by Tenant, and any
trade fixtures, equipment or personal property of Tenant which shall have been
damaged or destroyed.
11.2. EMINENT DOMAIN.
11.2.1. In the event of any condemnation or taking in any manner for public
or quasi-public use, which shall be deemed to include a voluntary conveyance in
lieu of a taking (a "taking") of the whole of the Property, this Lease shall
forthwith terminate as of the date when Tenant is required to vacate the
Premises.
11.2.2. Unless this Lease is terminated as provided herein, the Landlord,
at its own expense, and proceeding with due diligence and all reasonable
dispatch, but subject to delays beyond the reasonable control of Landlord, shall
restore the remaining portion of the Premises (but, not any alterations or
improvements made by or for Tenant, or any trade fixtures, equipment or personal
property of Tenant) and the necessary portions of the Property as nearly as
practicable to the same condition as it was prior to
26
such taking, subject to zoning and building laws then in effect. Notwithstanding
the foregoing, Landlord's obligation to restore the remaining portion of the
Premises shall be limited to the extent of the condemnation proceeds (net of all
reasonable costs and expenses incurred in connection with same) received by
Landlord on account thereof. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting from delays
in restoring the Premises.
11.2.3. In the event that only a part of the Premises or the Property shall
be taken, then, if such taking is a substantial taking (as hereinafter defined),
either Landlord or Tenant may by delivery of notice in writing to the other
within 60 days following the date on which Landlord's title has been divested by
such authority, terminate this Lease, effective as of the date when Tenant is
required to vacate any portion of the Premises or appurtenant rights. A
"substantial taking" shall mean a taking which: requires restoration and repair
of the remaining portion of the Property that cannot in the ordinary course be
reasonably expected to be repaired within 180 days; results in the loss of
reasonable access to the Premises; results in the loss of more than 25% of the
rentable floor area of the Premises; or results in loss of parking or of
facilities in the Building and Landlord reasonably determines it is not
practical to relocate such parking or relocate and reconnect such facilities
within the remaining Building or Property.
11.2.4. If this Lease is not terminated as aforesaid, then this Lease shall
continue in full force and effect, provided if as a result of which there is
material interference with the operation of Tenant's use of the Premises, then
the Fixed Rent and additional rent payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the loss of
use thereof suffered by Tenant.
11.2.5. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to the
Building, the Lot, and the leasehold interest hereby created (including any
award made for the value of the estate vested by this Lease in Tenant), and to
compensation accrued or hereafter to accrue by reason of such taking, and by way
of confirming the foregoing, Tenant hereby grants and assigns, and covenants
with Landlord to grant and assign, to Landlord all rights to such damages of
compensation. Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceedings a separate claim for the value of
any of Tenant's personal property and for relocation expenses and business
losses, provided that such action shall not affect the amount of compensation
otherwise recoverable by Landlord from the taking authority.
12. DEFAULT
12.1. TENANT'S DEFAULT.
The following shall be deemed to be defaults hereunder:
(a) Tenant's failure to pay Fixed Rent or monthly installments of
additional rent or any other charges for which provision is made
herein, on or before the seventh (7th) day after written notice from
Landlord that such sums are overdue; or
(b) Intentionally omitted; or
(c) Tenant's failure to perform or observe any other covenants, terms or
conditions contained in this Lease, which failure is not cured within
30 days after written notice from Landlord thereof, or if such failure
is of such character that Tenant cannot reasonably effect a cure
within such 30-day period, Tenant shall fail to commence such remedy
promptly and prosecute such remedy to completion with diligence and
continuity within 60 days after the original notice from Landlord; or
27
(d) If the estate hereby created shall be taken on execution or by other
process of law, or if Tenant shall be judicially declared bankrupt or
insolvent according to law, or if any assignment shall be made of the
property of Tenant for the benefit of creditors, or if a receiver,
guardian, conservator, trustee in involuntary bankruptcy or
other-similar officer shall be appointed to take charge of all or any
substantial part of Tenant's property by a court of competent
jurisdiction, or if a petition shall be filed for the reorganization
of Tenant under any provisions of the Bankruptcy Code now or hereafter
enacted or if Tenant shall file a petition for such reorganization or
for arrangements under any provision of the Bankruptcy Code now or
hereafter enacted and providing a plan for a debtor to settle, satisfy
or extend the time for payment of debts (references herein to Tenant
shall include any guarantor of Tenant's obligations hereunder); or
(e) The discovery by Landlord that any financial statement given to
Landlord by Tenant, or by any guarantor of Tenant's obligations
hereunder, was materially false at the time given. Tenant acknowledges
that Landlord has entered into this Lease in material reliance on such
information; or
(f) If Tenant is a corporation or a partnership, the dissolution or
liquidation of Tenant; or
(g) If Tenant's obligations under this Lease are guaranteed: (i) the death
of a guarantor, (ii) the termination of a guarantor's liability with
respect to this Lease other than in accordance with the terms of such
guaranty, (iii) a guarantor's becoming insolvent or the subject of a
bankruptcy filing, (iv) a guarantor's refusal to honor the guaranty,
or (v) a guarantor's breach of its guaranty obligation on an
anticipatory breach basis.
12.2. REMEDIES.
12.2.1. In the event any default shall occur (notwithstanding any license
of a former breach of covenant or waiver of the benefit hereof or consent in a
former instance), Landlord lawfully may, immediately or at any time thereafter,
and without demand or notice, but otherwise in accordance with Law: enter into
and upon the Premises or any part thereof in the name of the whole and repossess
the same as of Landlord's former estate, and expel Tenant and those claiming
through or under Tenant and remove its or their effects without being guilty of
any manner of trespass, and without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach of covenant; and, with
or without making such entry as aforesaid, Landlord shall have the right, by
suitable notice to Tenant, forthwith to terminate this Lease.
12.2.2. Tenant covenants and agrees, notwithstanding any entry or re-entry
by Landlord, whether by summary proceedings or otherwise, and notwithstanding
any such termination, to pay and be liable for, on the days originally fixed
herein for the payment thereof, amounts equal to the several installments of
rent and other charges reserved as they would, under the terms of this Lease,
become due if this Lease had not been terminated or if Landlord had not entered
or re-entered, as aforesaid, and whether the Premises be relet or remain vacant,
in whole or in part, or for a period less than the remainder of the term, and
for the whole thereof. Landlord agrees to use commercially reasonable efforts to
relet the Premises after any such termination so as to mitigate Tenant's damages
hereunder; provided, however, Landlord shall not be liable for, nor shall
Tenant's obligations hereunder be diminished or reduced because of Landlord's
failure to relet the Premises or to collect rent due for such reletting despite
such reasonable efforts and such reletting efforts shall be subject to (a)
through (d) in the following sentence. Tenant acknowledges that Landlord shall
have no obligation to lease the Premises (a) in any particular order while there
is any other vacant space in the Building or other buildings in owned, operated
or managed by Landlord or an
28
affiliated party, (b) to a potential tenant which does not satisfy Landlord's
criteria for a credit worthy tenant, (c) to a potential tenant whose business or
business related activities may violate or conflict with any applicable Laws and
Restrictions or other leases relating to the Building, (d) to a potential tenant
which may have an adverse impact upon the high-grade manner in which the
Building is operated as determined by Landlord in good faith. In the event the
Premises be relet by Landlord, Tenant shall be entitled to a credit in the net
amount of rent and other charges received by Landlord in reletting, after
deduction of all good faith expenses incurred in reletting the premises
(including, without limitation, remodeling and repair costs, brokerage fees,
advertising costs, inspection fees, free rent and rental concessions, tenant
allowances, and attorneys' fees and costs, and the like), and in collecting the
rent in connection therewith, in the following manner:
Amounts received by Landlord after reletting shall first be applied against
such Landlord's expenses, until the same are recovered, and until such
recovery, Tenant shall pay, as of each day when a payment would fall due
under this Lease, the amount which Tenant is obligated to pay under the
terms of this Lease (Tenant's liability prior to any such reletting and
such recovery not in any way to be diminished as a result of the fact that
such reletting might be for a rent higher than the rent provided for in
this Lease); when and if such expenses have been completely recovered, the
amounts received from reletting by Landlord as have not previously been
applied shall be credited against Tenant's obligations as of each day when
a payment would fall due under this Lease, and only the net amount thereof
shall be payable by Tenant. Further, amounts received by Landlord from such
reletting for any period shall be credited only against obligations of
Tenant allocable to such period, and shall not be credited against
obligations of Tenant hereunder accruing subsequent or prior to such
period, nor shall any credit of any kind be due for any period after the
date when the term of this Lease is scheduled to expire according to its
terms.
As an alternative, at the election of Landlord, Tenant will upon such
termination, pay to Landlord, as damages, such a sum as at the time of such
termination represents the amount of the excess, if any, of the then value of
the total rent and other benefits which would have accrued to Landlord under
this Lease for the remainder of the Lease Term if the Lease terms had been fully
complied with by Tenant over and above the then fair market rental value (in
advance) of the Premises for the balance of the term. For the purposes of this
Section, if Landlord elects to require Tenant to pay damages in accordance with
this subsection, the total rent shall be computed by assuming that Tenant's
share of additional rent would be, for the balance of the unexpired term, the
amount thereof (if any) for the immediately preceding annual period payable by
Tenant to Landlord.
12.2.3. Intentionally Omitted.
12.2.4. Without limiting any of Landlord's rights and remedies hereunder,
and in addition to all other amounts Tenant is otherwise obligated to pay, it is
expressly agreed that Landlord shall be entitled to recover from Tenant all good
faith costs and expenses, including reasonable attorney's fees incurred by
Landlord in enforcing this Lease from and after Tenant's default.
12.3. INTEREST ON LATE PAYMENTS.
If any payment of Fixed Rent, additional rent or any other payment payable
hereunder by Tenant to Landlord shall not be paid when due, the same shall bear
interest from the date when the same was payable until the date paid at the
lesser of (a) 12% per annum, compounded monthly, or (b) the highest lawful rate
of interest which Landlord may charge to Tenant without violating any applicable
law. Such interest shall constitute additional rent payable hereunder and be
payable upon demand therefor by Landlord.
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12.4. LANDLORD'S DEFAULT.
Landlord shall in no event be in default in the performance of any of Landlord's
obligations hereunder unless and until Landlord shall have failed to perform
such obligations within 30 days, or such additional time as is reasonably
required to correct any such default, provided Landlord is diligently pursuing
any such correction, after notice by Tenant to Landlord properly specifying
wherein Landlord has failed to perform any such obligation. It is the express
understanding and agreement of the parties and a condition of Landlord's
agreement to execute this Lease that in no event shall Tenant have the right to
terminate this Lease or seek an abatement to or offset from Fixed Rent or
Additional Rent as a result of Landlord's default, but Tenant shall be entitled
to seek all other remedies, at law or equity, as a result of such default.
Tenant hereby waives its right to recover punitive or consequential damages
arising out of a Landlord default. Except for Tenant's monetary obligations,
this Lease and the obligations of either party hereunder shall not be affected
or impaired because the other party is unable to fulfill any of its obligations
hereunder or is delayed in doing so, if such inability or delay is caused by
reason of a Force Majeure Event, and the time for the other party's performance
shall be extended for the period of any such delay. Any claim, demand, right or
defense by Tenant that arises out of this Lease or the negotiations which
preceded this Lease shall be barred unless Tenant commences an action thereon,
or interposes a defense by reason thereof, within six (6) months after the date
of the inaction, omission, event or action that gave rise to such claim, demand,
right or defense. As used herein, a "Force Majeure Event" shall be any delay
caused by or resulting from acts of God, war, civil commotion, fire, flood or
other casualty, labor difficulties, shortages of or inability to obtain labor,
materials or equipment, government regulations, unusually severe weather, or
other causes beyond such party's reasonable control.
12.5. COSTS OF ENFORCEMENT.
Landlord and Tenant shall each pay all reasonable costs and expenses (including
without limitation reasonable attorney's fees) incurred by the other party in
enforcing the other party's obligations or its rights under this Lease, provided
such other party prevails in enforcing such obligations or rights, such costs
not to accrue for the purposes hereof until the expiration of any notice and
cure period with respect to such default.
12.6. BANKRUPTCY AND INSOLVENCY.
If the estate created hereby shall be taken in execution, or by other process of
law, or if Tenant shall be declared bankrupt or insolvent, according to law, or
if any receiver be appointed for the business and property of Tenant, or if any
assignment shall be made of Tenant's property for the benefit of creditors (and
as to such matters involuntarily taken against Tenant, Tenant has not within
sixty (60) days thereof obtained a release or discharge therefrom), then this
Lease may be canceled at the option of Landlord. If, as a matter of law,
Landlord has no right upon the bankruptcy of Tenant to terminate this Lease
then, the rights of Tenant, as debtor, or its trustee, shall be deemed abandoned
or rejected unless Tenant, as debtor, or its trustee, (a) within sixty (60) days
after the date of the order for relief under Chapter 7 of the Bankruptcy Code or
sixty (60) days after the date the petition is filed under Chapter 11 of the
Bankruptcy Code assumes in writing the obligations under this Lease, (b) cures
or adequately assures the cure of all defaults existing under this Lease on
Tenant's part within such sixty (60) days, and (c) furnishes adequate assurance
of future performance of the obligations of Tenant under this Lease. Adequate
assurance of curing defaults means the posting with Landlord of a sum in cash
sufficient to defray the costs of such cure. Adequate assurance of future
performance of the Tenant's obligations under this Lease means
30
increasing the security deposit or letter of credit by an amount equal to six
(6) Monthly Installments of Fixed Rent.
Tenant shall not be permitted to assume and assign this Lease in connection with
any bankruptcy or insolvency proceedings without full and complete compliance
with the following provisions: (a) Landlord is provided with the following
information regarding the party desiring to assume the Lease ("Assumptor") which
Landlord in its sole and absolute discretion deems sufficient (a) organizational
information regarding the Assumptor (2) audited financial statements for the
three (3) most recent fiscal years, and (3) such other information as Landlord
deems appropriate, (b) Landlord determines that the use of the Demised Premises
by the intended Assignee is compatible with the character of the Building, (c)
all existing defaults under this Lease are cured at least ten (10) days prior to
any hearings in connection with Tenant's request to assume and assign the Lease,
(d) the Assumptor at any such hearing provides adequate assurance of its future
performance of the Lease as determined by Landlord in its sole and absolute
discretion, which adequately assurance shall include at least the following: (1)
posting of security deposit or letter of credit equal to six (6) Monthly
Installments of Fixed Rent, if such was not already posted by Tenant, (2) paying
in advance to Landlord the next six (6) Monthly Installments of Fixed Rent, or
posting an irrevocable letter of credit for such amount, (3) establishing with
Landlord an escrow in advance for the full cost of all real estate taxes, and
insurance, as required under the Lease for the next twelve (12) months of the
Lease and thereafter on an annual basis in advance, and (4) providing Landlord
with an unconditional continuing guarantee of the Lease executed by the owners
or officers of the Assumptor as determined by Landlord in its sole and absolute
discretion, and (5) the Assumptor executes a written agreement assuming the
Lease and such Lease amendments as are necessary, which agreements and
amendments are satisfactory to Landlord in its sole and absolute discretion.
13. MISCELLANEOUS PROVISIONS
13.1. EXTRA HAZARDOUS USE.
Tenant covenants and agrees that Tenant will not do or permit anything to be
done in or upon the Premises or the Property, or bring in anything or keep
anything therein which shall increase the rate of insurance on the Premises or
on the Property above the standard rate applicable to premises being occupied
for the use to which Tenant has agreed to devote the Premises; and Tenant
further agrees that in the event that Tenant shall do any of the foregoing,
Tenant will promptly pay to Landlord, on demand, any such increase resulting
therefrom which shall be due and payable as additional rent hereunder.
13.2. WAIVER.
13.2.1. Failure on the part of either party to complain of any action or
nonaction on the part of the other, no matter how long the same may continue,
shall never be a waiver by the first party of any of its rights hereunder.
Further, no waiver at any time of any of the provisions hereof by Landlord shall
be construed as a waiver of any of the other provisions hereof, and, a waiver at
any time of any of the provisions hereof shall not be construed as a waiver at
any subsequent time of the same provisions. The consent or approval of Landlord
to or of any action by Tenant requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's consent or approval to or of
any subsequent similar act by Tenant.
13.2.2. No payment by Tenant or acceptance by Landlord of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account. The acceptance by Landlord of a check for a lesser amount
with an endorsement or statement thereon, or upon any letter accompanying such
check that such lesser amount is payment in full, shall be given no effect, and
31
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant. In no event shall Tenant ever be
entitled to receive interest upon, or any payments on account of earnings or
profits derived from any payments hereunder by Tenant to Landlord.
13.3. COVENANT OF QUIET ENJOYMENT.
Tenant, upon payment of the rent and the observing, keeping and performing all
of the covenants, terms and provisions of this Lease on Tenant's part to be
observed, kept and performed, shall lawfully, peaceably and quietly have, hold,
occupy and enjoy the Premises during the term hereof, without hindrance or
ejection by any persons lawfully claiming under Landlord to have title to the
Premises superior to that of Tenant, subject, however, to the rights of the
holders of mortgages on the Property, and subject to the terms and conditions of
this Lease. The foregoing covenant of quiet enjoyment is in lieu of any other
covenant, expressed or implied.
13.4. LANDLORD'S LIABILITY.
13.4.1. It is understood and agreed that the obligations, covenants or
liabilities of Landlord contained in this Lease shall be binding upon Landlord
and Landlord's successors only with respect to breaches occurring during
Landlord's and Landlord's successors' respective ownership of Landlord's
interest hereunder. Further, Tenant specifically agrees to look solely to
Landlord's then equity interest in the Building at the time owned, or in which
Landlord holds an interest as ground lessee, for recovery of any judgment from
Landlord; it being specifically agreed that Landlord (original or successor and
their respective officers, directors, stockholders, partners, managers, members,
beneficial owners, trustees, employees, agents, contractors, attorneys, and
mortgagees), shall never be personally liable for any such judgment, or for the
payment of any monetary obligation to Tenant. The provision contained in the
foregoing sentence is not intended to, and shall not limit, any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or any action not involving the personal
liability of Landlord (original or successor) or not involving any claim in
monetary damages from Landlord's assets other than a claim limited to Landlord's
equity interest aforesaid in the Building. Notwithstanding any other provision
of this Lease to the contrary, in no event shall either party ever be liable for
any indirect, special or consequential damages suffered by the other or the
other's Agents from any cause whatsoever; provided, however, that the foregoing
limitation on damages shall in no event apply to Tenant's failure to comply
with, or breach of, Sections 13.21 and 13.23, in which event Landlord shall have
recourse to all rights and remedies available under this Lease, at law or equity
with no such limitation on damages.
13.4.2. With respect to any services, including, without limitation,
electric current or water to be furnished by Landlord to Tenant, or obligations
to be performed by Landlord hereunder, Landlord shall in no event be liable for
failure to furnish or perform the same when (and the date for performance of the
same shall be postponed so long as Landlord is) prevented from doing so by
strike, lockout, breakdown, accident, order or regulation of or by any
governmental authority, or failure of supply, or inability by the exercise of
reasonable diligence to obtain supplies, parts or employees necessary to furnish
such services, or perform such obligations or because of war or other emergency,
or for any cause beyond Landlord's reasonable control, or for any cause due to
any act or neglect of Tenant or Tenant's Agents.
13.5. NOTICE TO MORTGAGEE AND GROUND LESSOR.
After receiving notice from any person, firm or other entity that it holds a
mortgage which includes the Premises as part of the mortgaged premises, or that
it is the ground lessor under a lease with Landlord, as ground lessee, which
includes the Premises as part of the demised premises, no default notice from
32
Tenant to Landlord shall be effective unless and until a copy of the same is
given to such holder or ground lessor, and the curing of any of Landlord's
defaults by such holder or ground lessor shall be treated as performance by
Landlord. For the purposes of this Lease, the term "mortgage" includes a
mortgage on a leasehold interest of the Landlord (but not one on Tenant's
leasehold interest).
13.6. ASSIGNMENT OF RENTS.
With reference to any assignment by Landlord of Landlord's interest in this
Lease, or the rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage or ground lease on property which
includes the Premises, Tenant agrees:
(a) that the execution thereof by Landlord, and the acceptance thereof by
the holder of such mortgage, or the ground lessor, shall never be
treated as an assumption by such holder or ground lessor of any of the
obligations of Landlord hereunder, unless such holder or ground lessor
shall, by notice sent to Tenant, specifically otherwise elect; and
(b) that, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only upon
foreclosure of such holder's mortgage and the taking of possession of
the Premises, or in the case of a ground lessor, the assumption of
Landlord's position hereunder by such ground lessor. In no event shall
the acquisition of title to the Building and the land on which the
same is located by a purchaser which, simultaneously therewith, leases
the entire Building or such land back to the seller thereof, be
treated as an assumption by operation of law or otherwise of
Landlord's obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title, for
performance of Landlord's obligations hereunder. In any such event,
this Lease shall be subject and subordinate to the lease to such
seller. For all purposes such seller-lessee, and its successors in
title, shall be the landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
13.7. MECHANIC'S LIENS.
Tenant agrees immediately to discharge (either by payment or by the filing of
the necessary bond, or otherwise) any mechanics', materialmen's or other lien or
encumbrance against the Premises and/or Landlord's interest therein, which liens
may arise out of any payment due for, or purported to be due for, any labor,
services, materials, supplies or equipment alleged to have been furnished to or
for Tenant in, upon or about the Premises. If Tenant shall fail to so discharge
such lien or encumbrance then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge same (either by
payment or by filing of the necessary bond or otherwise) and any amount paid by
Landlord for any of the aforesaid purposes, and all actual and legal and other
expenses of Landlord, including reasonable counsel fees, in or about procuring
the discharge of such lien, together with all necessary disbursements in
connection therewith, and together with interest thereon at the rate set forth
in Section 12.3 from the date of payment, shall be repaid by Tenant to Landlord
on demand, and if unpaid may be treated as additional rent.
13.8. NO BROKERAGE.
Each party warrants and represents that it has not dealt with any broker other
than the Brokers, named in Section 1.2 hereof, in connection with the
consummation of this Lease, and in the event any claim is made against the
Landlord or the Tenant relative to dealings with brokers other than the Brokers,
the party
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breaching such warranty and representation shall defend the claim against the
first party with counsel of the indemnified party's selection and save harmless
and indemnify such party on account of loss, cost or damage which may arise by
reason of any such claim.
13.9. INVALIDITY OF PARTICULAR PROVISIONS.
If any term or provision of this Lease or the application thereof to and person
or circumstance shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
13.10. PROVISIONS BINDING, ETC.
Except as herein otherwise provided, the terms hereof shall be binding upon and
shall inure to the benefit of the successors and assigns, respectively, of
Landlord and Tenant and, if Tenant shall be an individual, upon and to his
heirs, executors, administrators, successors and assigns. If two or more persons
are named as Tenant herein, each of such persons shall be jointly and severally
liable for the obligations of the Tenant hereunder, and Landlord may proceed
against any one without first having commenced proceedings against any other of
them. The reference contained to successors and assigns of Tenant is not
intended to constitute a consent to assignment by Tenant, but has reference only
to those instances in which Landlord may later give consent to a particular
assignment as required by those provisions of Section 5 hereof.
13.11. RECORDING.
Tenant agrees not to record the within Lease, but, if required by applicable law
in order to protect Tenant's interest in the Premises, each party hereto agrees,
on the request of the other, to execute a so-called memorandum of lease or short
form lease in recordable form and complying with applicable law and reasonably
satisfactory to Landlord's attorneys. In no event shall such document set forth
the rent or other charges payable by Tenant under this Lease; and any such
document shall expressly state that it is executed pursuant to the provisions
contained in this Lease and is not intended to vary the terms and conditions of
this Lease.
13.12. NOTICES.
Whenever, by the terms of this Lease, notice shall or may be given either to
Landlord or to Tenant, such notice shall be in writing and shall be deemed duly
given if sent either (i) by registered or certified mail, postage prepaid,
return receipt requested, or (ii) by overnight mail service as provided by the
U.S. mail or by a nationally recognized private common carrier with provisions
for receipt of delivery, or (iii) by hand with a written acknowledgement of
receipt (or refusal thereof), and addressed as follows:
(a) If intended for Landlord, addressed to Landlord at the Present Mailing
Address of Landlord (as set forth in Section 1.2 of this Lease) with a
copy to Sherin and Lodgen LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx (or to such other address or addresses as may
from time to time hereafter be designated by Landlord by like notice).
(b) If intended for Tenant: if given prior to the Commencement Date,
addressed to Tenant at the Present Mailing Address of Tenant (as set
forth in Section 1.2 of this Lease); and if
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given after the Commencement Date, addressed to Tenant at the
Premises, with a copy to Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: Real Estate Department (or to
such other address or addresses as may from time to time hereafter be
designated by Tenant by like notice).
All such notices shall be effective when delivered in hand (or when refused), or
when deposited in the United States mail within the continental United States or
when sent by overnight mail.
13.13. WHEN LEASE BECOMES BINDING.
Employees or agents of Landlord have no authority to make or agree to make a
lease or any other agreement or undertaking in connection herewith. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by written agreement between Landlord
and Tenant, and no act or omission of any employee or agent of Landlord or
Tenant shall alter, change or modify any of the provisions hereof.
13.14. PARAGRAPH HEADINGS.
The section and paragraph headings throughout this instrument are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Lease. This Lease shall be interpreted as
if it was prepared by both parties and ambiguities shall not be resolved in
favor of Tenant because all or a portion of this Lease was prepared by Landlord.
As used in this Lease the words tenant and landlord include the plural as well
as the singular. Words used in the neuter gender include the masculine and
feminine gender.
13.15. RIGHTS OF MORTGAGEE.
This Lease shall be subordinate to any existing mortgage currently encumbering
the Premises and to any and all advances made or to be made thereunder and any
extensions, renewals or modifications thereof, unless the holder of such
mortgage elects to cause the Lease to be superior to such mortgage. This Lease
shall be subordinate to any future mortgages or ground leases from time to time
encumbering the Premises, executed or delivered subsequent to the date of this
Lease and to any and all advances made or to be made thereunder and any
extensions, renewals or modifications thereof (unless the holder or ground
lessor elects to cause the Lease to be superior to such mortgage or ground
lease), provided such mortgagee or ground lessor enters into an agreement (upon
such terms as are customarily required by institutional lenders) recognizing
Tenant under this Lease and providing that in the event of a foreclosure Tenant
shall remain undisturbed under this Lease if Tenant is not in default (after
applicable notice and grace periods) under any of the terms and conditions of
this Lease (a "nondisturbance agreement"). Tenant agrees to execute such
instruments of subordination in confirmation of the foregoing agreement as such
holder may request. Landlord agrees to use reasonable efforts to obtain a
nondisturbance agreement from the holder of the existing mortgage on the
Premises.
13.16. STATUS REPORT.
Recognizing that Landlord may find it necessary to establish to third parties,
such as accountants, banks, mortgagees, purchasers or the like, the then current
status of performance hereunder, Tenant, on the
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request of Landlord made from time to time, will within 10 days of such request
furnish to Landlord, or the holder of any mortgage encumbering the Premises, or
such other party, as the case may be, a statement in form provided by Landlord,
of the status of any matter pertaining to this Lease, to the best of Tenant's
knowledge after due inquiry, including, without limitation:
(a) That the Lease is unmodified and in full force and effect or, if there
has been any modification, that the same is in full force and effect,
as modified and stating any such modification;
(b) Whether or not there are any existing setoffs or defenses against the
enforcement of any of the terms, agreements, covenants and conditions
of this Lease and any modifications thereof on the part of Tenant to
be performed or complied with, and if so, specifying the same;
(c) The date to which Fixed Rent and all additional rent and other charges
have been paid; and
(d) Any other matters reasonably requested by the Landlord or such other
party.
Any statement furnished pursuant to this Section may be relied upon by Landlord,
any mortgagee or ground lessee, any purchaser, or by any other third party
interested in the status of this Lease or the Premises. Landlord agrees to
execute similar estoppel certificates regarding the Lease, to its knowledge,
upon the request of Tenant from time to time.
13.17. TENANT'S FINANCIAL CONDITION.
Tenant warrants and represents that all financial statements furnished to
Landlord or Landlord's representatives in connection with this Lease are true
and correct and properly reflect the same without material adverse change, as of
the date hereof. Upon Landlord's request, which may be made no more often than
annually, Tenant shall furnish to Landlord, at Tenant's sole cost and expense,
then current financial statements of Tenant, audited (if audited statements have
been recently prepared on behalf of Tenant, or otherwise certified as being true
and correct by the chief financial officer of Tenant).
13.18. ADDITIONAL REMEDIES OF LANDLORD; SURVIVAL.
13.18.1. Landlord shall have (Illegible) not be required to do so, to pay
such sums or do any act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of Tenant to
perform any of the provisions of this Lease, and in the event of the exercise of
such right by Landlord, Tenant agrees to pay to Landlord forthwith upon demand
all such sums; and if Tenant shall default in such payment, Landlord shall have
the same rights and remedies as Landlord has hereunder for the failure of Tenant
to pay the Fixed Rent.
13.18.2. Except as otherwise (Illegible) obligations of Tenant as set forth
herein (including, without limitation, rental and other monetary obligations,
repair obligations and obligations to indemnify Landlord), shall survive the
expiration or earlier termination of this Lease (after notice to Tenant and the
expiration of any applicable cure period), and Tenant shall immediately
reimburse Landlord for any expense incurred by Landlord in curing Tenant's
failure to satisfy any such obligation (notwithstanding the fact that such cure
might be effected by Landlord following the expiration or earlier termination of
this Lease).
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13.19. WAIVER OF COUNTERCLAIMS.
If Landlord commences any summary proceeding for nonpayment of Fixed Rent,
additional rent or any other payments due hereunder, Tenant hereby waives the
right to interpose any non-compulsory counterclaim of whatever nature or
description in any such proceeding; provided, however, that Tenant shall have
the right to bring a separate action against Landlord to the extent otherwise
allowed under this Lease as long as Tenant does not attempt to have such action
joined or otherwise consolidated with Landlord's summary proceeding.
13.20. CONSENTS.
Except as otherwise specifically provided in this Lease, any consent or approval
to be given by Landlord under this Lease may be withheld or denied at Landlord's
sole and absolute discretion. Whenever in this Lease the consent or approval of
Landlord is required, and it is specifically provided that such consent or
approval is not to be unreasonably withheld, delayed or conditioned, but
nevertheless Landlord shall refuse or delay or condition such consent or
approval, Tenant shall not be entitled to make any claim, and Tenant hereby
waives any claim, for money damages (nor shall Tenant claim any money damages by
any setoff, counterclaim or defense) based upon any claim or assertion by Tenant
that Landlord unreasonably withheld or delayed or conditioned its consent or
approval; and Tenant's sole remedy in such circumstances shall be an action or
proceeding for specific performance, injunctive relief or declaratory judgment
and the prevailing party in any such proceeding shall be entitled to
reimbursement of its reasonably attorneys' fees and costs from the other.
13.21. HOLDING OVER.
If for any reason Tenant holds over or occupies the Premises beyond the Term,
Tenant shall have no more rights than a tenant by sufferance (or, at Landlord's
sole option, such holding over shall constitute a tenancy from month to month,
terminable by either party upon 30 days prior written notice to the other); and,
in any case, Tenant shall be liable for payment of rent during such period in an
amount equal to two times the rent (including Fixed Rent and all additional
rent) payable hereunder during the final year of the Term prior to such holding
over, for any month, or portion thereof, that Tenant so holds over or occupies
the Premises, with such tenancy otherwise on the same terms and conditions as
set forth in the Lease, as far as applicable. In addition, if Tenant holds over
beyond any such thirty (30) day written notice, Tenant shall save Landlord, its
agents and employees harmless and will exonerate, defend and indemnify Landlord,
its agents and employees from and against any and all damages which Landlord may
suffer on account of such hold over. Nothing in this Section shall be construed
to permit such holding over, or to limit Landlord's other rights and remedies on
account thereof.
13.22. NON-SUBROGATION.
Landlord and Tenant mutually agree that, with respect to any hazard which is
covered by insurance then being carried by them (or insurance that is required
to be carried hereunder), respectively, the one carrying (or required to carry)
such insurance and suffering such loss releases the other of and from any and
all claims with respect to such loss, to the extent of such coverage; and they
further mutually agree that their respective insurance companies shall have no
right of subrogation against the other on account thereof. Such waiver shall be
included in the policy, or such other party shall be named as an additional
insured in such policy, and the other party shall reimburse the party paying
such premium the amount of such extra premium. Each such policy which shall so
name a party hereto as an additional insured shall contain the agreement of the
insurer that the policy will not be canceled without at least 30 days notice to
both insureds and that the act or omission of on insured shall not invalidate
the policy as to the other
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insured. For the purposes of this Section 13.22, the coverage carried by the
Landlord pursuant to Section 9.5 above shall be deemed to equal full replacement
value of the Building with so-called special form coverage.
13.23. ENVIRONMENTAL HAZARDS.
13.23.1. With the understanding (Illegible) has made no environmental site
assessment or inspection of the Premises or Property, Landlord warrants and
represents that it has no knowledge of any Hazardous Matter (as defined below)
in or on the Premises or the Property that violates Environmental Requirements
(as defined below).
13.23.2. Tenant and Tenant's (Illegible) use, maintain, generate, allow or
bring on the Premises or the Property or transport or dispose of, on or from the
Premises or the Property (whether into the ground, into any sewer or septic
system, into the air, by removal off-site or otherwise) any Hazardous Matter (as
hereinafter defined).
13.23.3. Tenant shall promptly (Illegible) copies of any notices, orders or
other communications received from any governmental agency or official affecting
the Premises and concerning alleged violations of the Environmental Requirements
(hereinafter defined).
13.23.4. Tenant shall save (Illegible) with its officers, directors,
stockholders, partners, beneficial owners, trustees, managers, members,
employees, agents, contractors, attorneys, and mortgagees) harmless and
indemnified from and against any and all Environmental Damages (hereinafter
defined) which may be asserted by Tenant, any other person or entity, or
government agency or which the indemnified parties may sustain or be put to on
account of: (1) the presence or release of any Hazardous Matter upon, in or from
the Premises during the Term and during any period when the Tenant, or Tenant's
Agents are occupying the Premises or any part thereof, unless proven to have
been caused by Landlord or Landlord's employees, agents or contractors; (2) the
presence or release of any Hazardous Matter upon, in or from the Property caused
by the act, omission or default of Tenant or Tenant's Agents; (3) the activities
or other action or inaction of Tenant or Tenant's Agents in violation of
Environmental Requirements; and (4) the breach of any of Tenant's obligations
under this Section 13.23.
13.23.5. The provisions of this (Illegible) in addition to any other
obligations and liabilities Tenant may have to Landlord under this Lease or
otherwise at law or in equity, and in the case of conflict between this Section
13.23 and any other provision of this Lease, the provision imposing the most
stringent requirement on Tenant shall control. The obligations of Tenant under
this Section 13.23 shall survive the expiration or termination of this Lease and
the transfer of title to the Premises.
13.23.6. The following terms (Illegible) have the meanings set forth below:
"Hazardous Matter" shall mean any substance: (i) which is or becomes
defined as Hazardous Substance, Hazardous Waste, Hazardous Material or Oil under
The Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq., M.G.L. Chapter 21C, M.G.L. Chapter 21D or M.G.L.
Chapter 21E, and the regulations promulgated thereunder, as same may be amended
from time to time; or (ii) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous to
health or the environment and which is or becomes regulated and the presence of
which requires investigation or remediation pursuant to any applicable law.
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"Environmental Requirements" shall mean all applicable law, the
provisions of any and all approvals, and the terms and conditions of this Lease
insofar as same relate to the release, maintenance, use, keeping in place,
transportation, disposal or generation of Hazardous Matter, including without
limitation those pertaining to reporting, licensing, permitting, health and
safety of persons, investigation, containment, remediation, and disposal.
"Environmental Damages" shall mean all liabilities, injuries, losses,
claims, damages (whether special, consequential or otherwise), settlements,
attorneys' and consultants' fees, fines and penalties, interest and expenses,
and costs of environmental site investigations, reports and cleanup, including
without limitation costs incurred in connection with: any investigation or
assessment of site conditions or of health of persons using the Building or the
Lot; risk assessment and monitoring; any cleanup, remedial, removal or
restoration work required by any governmental agency or recommended by
Landlord's environmental consultant; any decrease in value of Landlord's
Property; any damage caused by loss or restriction of rentable or usable space
in Landlord's Property; or any damage caused by adverse impact on marketing or
financing of Landlord's Property.
13.24. LETTER OF CREDIT.
Prior to the Commencement Date, Tenant shall deliver to Landlord a clean,
irrevocable letter of credit ("Letter of Credit") in the Letter of Credit Amount
(as defined in Section 1.2) satisfactory in form and content to Landlord and
issued by an FDIC insured bank located in Boston reasonably satisfactory to
Landlord in favor of the Landlord. A satisfactory form of Letter of Credit is
attached hereto as Exhibit C. During the Term hereof, and any extensions
thereof, and for 60 days after the expiration of the Term, or for so long
thereafter as Tenant is in possession of the Premises or has unsatisfied
obligations hereunder to Landlord, the Letter of Credit shall be security for
the full and timely performance of Tenant's obligations under this Lease; which
Letter of Credit may be drawn upon by Landlord and applied from time to time
against outstanding obligations of Tenant hereunder without notice or demand.
Tenant shall have no right to require Landlord to so apply the Letter of Credit,
nor shall Tenant be entitled to credit the same against rents or other sums
payable hereunder. During the entire Term hereof, including any extension
thereof, Tenant shall cause said Letter of Credit to be renewed, in identical
form to that delivered herewith, no later than 30 days prior to the date of
expiration of same. Without limiting any other remedies of Landlord, in the
event that Tenant fails to renew any Letter of Credit given hereunder at least
30 days prior to the date of expiration thereof, then Landlord shall have the
right to draw down the entire amount of said Letter of Credit and hold such sums
as a cash deposit If and to the extent that Landlord makes such use of the
Letter of Credit, or any part thereof, the sum so applied by Landlord (from cash
or from a drawing on the letter of credit) shall be restored to the Letter of
Credit by Tenant upon notice from Landlord, and failure to restore same (within
the grace period applicable to Fixed Rent hereunder) shall be a default
hereunder giving rise to all of Landlord's rights and remedies applicable to a
default in the payment of rent. In the event of a change of circumstance
relating to the bank issuing the Letter of Credit, or Landlord otherwise
reasonably believes the financial conditions of the issuing bank has been
degraded, Landlord reserves the right to require Tenant to replace the letter of
credit from time to time with a substitute similar letter of credit issued by
another bank satisfactory to Landlord.
13.25. GOVERNING LAW.
The Lease shall be governed exclusively by the provisions hereof and by the laws
of the Commonwealth of Massachusetts as the same may from time to time exist.
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13.26. INTENTIONALLY OMITTED.
13.27. SECURITY MEASURES.
Tenant acknowledges that Landlord shall have no obligation to provide guard
service or other security measures for the benefit of the Premises or the
Property, and Landlord shall have no liability to Tenant due to its failure to
provide such services. Tenant assumes all responsibility for the protection of
Tenant, its agents, employees, contractors and invitees and the property of
Tenant and of Tenant's agents, employees, contractors and invitees from acts of
third parties. Nothing herein contained shall prevent Landlord, at Landlord's
sole option, from implementing security measures for the Building or any part
thereof, in which event Tenant shall participate in such security measures and
the cost thereof shall be included within the definition of Operating Expenses,
and to the maximum extent permissible by law, Landlord shall have no liability
to Tenant and its agents, employees, contractors and invitees arising out of
Landlord's negligent provision of security measures. Landlord shall have the
right, but not the obligation, to require all persons entering or leaving the
Building to identify themselves to a security guard and to reasonably establish
that such person should be permitted access to the Building.
13.28. EASEMENTS.
Landlord reserves to itself the right, from time to time, to grant such
easements, rights and dedications that Landlord deems necessary or desirable,
and to cause the recordation of parcel maps and restrictions, so long as such
easements, rights, dedications, maps and restrictions do not unreasonably
interfere with the use of the Premises by Tenant. Tenant shall sign any of the
aforementioned documents within ten (10) days after Landlord's request and
Tenant's failure to do so shall constitute a material default by Tenant. The
obstruction of Tenant's view, air, or light by any structure erected in the
vicinity of the Property, whether by Landlord or third parties, shall in no way
affect this Lease or impose any liability upon Landlord.
13.29. CHANGES TO PROPERTY.
Landlord shall have the right, from time to time, to make changes to the size,
shape, location, number and extent of the improvements comprising the Property
and to consent to changes in the Office Park (hereinafter referred to
collectively as "Changes") including, but not limited to, the Building interior
and exterior, the common areas and elements thereof, elevators, escalators,
restrooms, HVAC, electrical systems, communication systems, fire protection and
detection systems, plumbing systems, security systems, parking control systems,
driveways, entrances, parking spaces, parking areas and landscaped areas. In
connection with the Changes, Landlord may, among other things, erect scaffolding
or other necessary structures at the Property, limit or eliminate access to
portions of the Property, including portions of the common areas, or perform
work in the Building, which work may create noise, dust or leave debris in the
Building. Tenant hereby agrees that such Changes and Landlord's actions in
connection with such Changes shall in no way constitute a constructive eviction
of Tenant or entitle Tenant to any abatement of rent. Although Landlord shall
use commercially reasonable efforts to minimize any material interference of
Tenant's use or occupancy of or access to the Premises, Landlord shall have no
responsibility or for any reason be liable to Tenant for any direct or indirect
injury to or interference with Tenant's business arising from the Changes, nor
shall Tenant be entitled to any compensation or damages from Landlord for any
inconvenience or annoyance occasioned by such Changes or Landlord's actions in
connection with such Changes.
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13.30. INCORPORATION OF PRIOR AGREEMENTS.
This Lease and the Exhibits hereto contain all agreements of the parties with
respect to the Lease of the Premises and any other matter mentioned herein. No
prior or contemporaneous agreement or understanding pertaining to any such
matter shall be effective. Except as otherwise stated in this Lease, Tenant
hereby acknowledges that no real estate broker nor Landlord or any employee or
agents of any of said persons has made any oral or written warranties or
representations to Tenant concerning the condition or use by Tenant of the
Premises or the Property or concerning any other matter addressed by this Lease.
13.31. AMENDMENTS.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification.
13.32. COVENANTS.
This Lease shall be construed as though Landlord's covenants contained herein
are independent and not dependent and Tenant hereby waives the benefit of any
statute to the contrary. All provisions of this Lease to be observed or
performed by Tenant are both covenants and conditions.
13.33. AUCTIONS.
Tenant shall not conduct, nor permit (with respect to the Premises only) to be
conducted, either voluntarily or involuntarily, any auction upon the Premises or
the Property. The holding of any auction on the Premises or Common Areas in
violation of this Section 13.33 shall constitute a default hereunder.
13.34. MERGER.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, or a termination by Landlord, shall not result in the
merger of Landlord's and Tenant's estates, and shall, at the option of Landlord,
terminate all or any existing subtenancies or may, at the option of Landlord,
operate as an assignment to Landlord of any or all of such subtenancies.
13.35. AUTHORITY.
If Tenant is a corporation, limited liability corporation, trust, or general or
limited partnership, Tenant represents and warrants that each individual
executing and delivering this Lease on behalf of said entity, that said entity
is duly authorized to enter into this Lease, and that this Lease is enforceable
against said entity in accordance with its terms. If Tenant is a corporation,
trust or partnership, Tenant shall deliver to Landlord upon request evidence of
such authority satisfactory to Landlord.
13.36. RELATIONSHIP OF PARTIES.
Nothing contained in this Lease shall be deemed or construed by the parties
hereto or by any third party to create the relationship of principal and agent,
partnership, joint venturer or any association between Landlord and Tenant.
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13.37. RIGHT TO LEASE.
Landlord reserves the absolute right to effect such other tenancies in the
Property as Landlord in its sole discretion shall determine, and Tenant is not
relying on any representation that any specific tenant or number of tenants will
occupy the Property.
13.38. CONFIDENTIALITY.
Tenant acknowledges and agrees that the terms of this Lease are confidential.
Disclosure of the terms hereof could adversely affect the ability of Landlord to
negotiate other leases with respect to the Building and may impair Landlord's
relationship with other tenants of the Building. Tenant agrees that it and its
partners, officers, directors, employees, brokers, and attorneys, if any, shall
not disclose the terms and conditions of this Lease to any other person or
entity without the prior written consent of Landlord which may be given or
withheld by Landlord, in Landlord's sole discretion, except as required for
financial disclosures, securities filings or to parties involved in transactions
permitted under Section 5.3 above. It is understood and agreed that damages
alone would be an inadequate remedy for the breach of this provision by Tenant,
and Landlord shall also have the right to seek specific performance of this
provision and to seek injunctive relief to prevent its breach or continued
breach.
13.39. OFAC CERTIFICATION AND INDEMNITY.
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001
(the "Executive Order"), and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Public Law 10756, the "Patriot Act") prohibit certain property transfers.
Tenant hereby represents and warrants to Landlord (which representations and
warranties shall be deemed to be continuing and re-made at all times during the
Term) that neither Tenant nor any stockholder, manager, beneficiary, partner, or
principal of Tenant is subject to the Executive Order, that none of them is
listed on the United States Department of the Treasury Office of Foreign Assets
Control ("OFAC") list of "Specially Designated Nationals and Blocked Persons" as
modified from time to time, and that none of them is otherwise subject to the
provisions of the Executive Order or the Patriot Act. The most current list of
"Specially Designated Nationals and Blocked Persons" can be found at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx. Tenant shall from time
to time, within ten days after request by Landlord, deliver to Landlord any
certification or other evidence requested from time to time by Landlord in its
reasonable discretion, confirming Tenant's compliance with these provisions. No
assignment or subletting shall be effective unless and until the assignee or
subtenant thereunder delivers to Landlord written confirmation of such party's
compliance with the provisions of this subsection, in form and content
satisfactory to Landlord. If for any reason the representations and warranties
set forth in this subsection, or any certificate or other evidence of compliance
delivered to Landlord hereunder, is untrue in any respect when made or
delivered, or thereafter becomes untrue in any respect, then an event of default
hereunder shall be deemed to occur immediately, and there shall be no
opportunity to cure. Tenant shall indemnify, defend with counsel reasonably
acceptable to Landlord, and hold Landlord harmless from and against, any and all
liabilities, losses claims, damages, penalties, fines, and costs (including
attorneys' fees and costs) arising from or related to the breach of any of the
foregoing representations, warranties, and duties of Tenant. The provisions of
this subsection shall survive the expiration or earlier termination of this
Sublease for the longest period permitted by law.
13.40. WAIVER OF JURY TRIAL.
LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY OF ANY
CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY
42
ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHER LANDLORD AGAINST TENANT OR
TENANT AGAINST LANDLORD ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S
USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE, OR THE
ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE, OR REGULATION, EMERGENCY OR
OTHERWISE, NOW OR HEREAFTER IN EFFECT.
43
Witness the execution hereof, under seal, in any number of counterparts, each of
which counterparts shall be deemed an original for all purposes, as of the day
and year first above written.
TENANT:
SOUNDBITE COMMUNICATIONS, INC.
By: /s/ Xxxxxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: VP Finance
Hereunto duly authorized
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Hereunto duly authorized
LANDLORD:
BURLINGTON XXXXX OFFICE TRUST NO. 2
By: /s/ Illegible
---------------------------------
(Illegible), as Trustee and
not individually
By: /s/ Illegible
---------------------------------
(Illegible), as Trustee and
not individually
44
EXHIBIT A
THE PREMISES
Exhibit A (Page 1)
(FLOOR PLAN)
EXHIBIT B
CURRENT RULES AND REGULATIONS
1. Tenant will review the non-binding tenant manual provided prior to move-in
at Building and, upon request by Landlord, will provide referenced forms
including emergency contacts, designated tenant representative, and card
access requests and will notify Landlord when changes in information occur.
2. The entrances, vestibules, passages, corridors, halls, elevators and
stairways shall not be encumbered nor obstructed by Tenant, Tenant's
agents, servants, employees, licensees or visitors, or be used by them for
any purpose other than ingress or egress to and from the Premises. Landlord
reserves the right to reasonably restrict and regulate the use of
aforementioned public areas of the Building by Tenant, Tenant's agents,
employees, servants, licensees and visitors and by persons making
deliveries to Tenant.
3. After the conclusion of Tenant's initial move into the Premises, other
movement in or out of the Building of furniture or office equipment which
requires the use of elevators or stairways or the movement through the main
Building entrance shall be restricted to the after business hours
designated by Landlord. All such movement shall be under the supervision of
Landlord and performed in the manner agreed upon between Tenant and
Landlord by pre-arrangement before performance. Such pre-arrangement
initiated by Tenant will include the determination by Landlord and subject
to Landlord's reasonable discretion, relating to the time, method, and
routing of the items' movement, as well as reasonable limitations imposed
by safety, appearance or other reasonable concerns which may include the
prohibition of equipment or any other item from being brought into the
Building, as well as the method of the items' movement through the
Building. Tenant shall assume with its contractors, all risk as to damage
caused by any such movement or property being moved or injury to persons or
public engaged or not engaged in such movement, including equipment,
property, and personnel of Landlord if damaged or injured as a result of
Tenant or its contractor's negligent or willful acts in connection with
such Tenant arranged moving from the time of entering the property to the
completion of work. Landlord shall not be liable for the acts of any person
engaged in, or any damage or loss to any of said property or persons
resulting from any act in connection with such moving performed by Tenant
arrangement, except relating to Landlord's or its agent's or contractor's
negligence or misconduct.
4. After the conclusion of Tenant move-in, all deliveries, inclusive of
packages, office supplies, etc., must be made via the freight elevator
during normal business hours. Landlord's written approval must be obtained
for any delivery made after business hours and Tenant will be responsible
for the expense of the security attendant who monitors access to the
Building during the period of such delivery.
5. Tenant shall not permit the parking or standing of delivery vehicles to
interfere with the use of any driveway, walk, parking area or other common
areas.
6. No hand trucks or delivery dollies, except those equipped with rubber tires
and padded side guards, shall be used in any space, or in public halls of
the building, either by Tenant or by jobbers or others in the delivery or
receipt of merchandise.
7. All deliveries to the Tenant must be accepted by Tenant. The Landlord and
its agents or
Exhibit B (Page 1)
employees will not accept, sign for, or hold Tenant mail, packages, or
deliveries.
8. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises, odors, or vibrations to emanate from premises or otherwise
unreasonably disturb or interfere with the occupancy of the Building
whether by the use of any equipment, musical instrument, radio, television,
talking machine, unmusical noise, whistling, singing, or in any other way.
9. No additional locks, or security devices will be installed without prior
notification and approval by Landlord. New locks or rekeying must be
coordinated with Landlord and keyed on building master system. Upon move-in
all doors with locksets will be keyed to building master system and Tenant
will be given 2 keys by Landlord. Additional keys may be requested in
advance and at an additional charge to Tenant. Upon termination of Lease,
Tenant will return 2 keys to each lock, and further will disclose any
previously approved and installed security devices including combination
locks, punch codes to doors and vaults.
10. After the initial move-in, for which the distribution of access cards will
be provided at no cost to Tenant, Tenant agrees to pay an amount fixed by
Landlord from time to time, for each building access card issued by
Landlord to Tenant for access to Building during non-business hours. Such
expense is presently $10.00 per card.
11. Landlord specifically reserves the right to exclude from the Building
during non-business hours, such as before 8:00 a.m. and after 6:00 p.m. on
weekdays, on Saturdays and Sundays, and Building recognized Holidays, all
persons not permitted entry by utilizing card access, telephone access
system, or previous arrangement with the management office.
12. Tenant shall be responsible for persons it authorizes to have access to the
Building during non-business hours and shall be liable for and shall
coordinate which persons should have access cards issued. Tenant shall keep
access card records current and properly identified by employee name.
13. Landlord will not permit entrance to Tenant's premises or offices by use of
pass keys controlled by Landlord to any person at any time except
Landlord's employees, contractors, or service personnel directly supervised
by Landlord. It is recommended that Tenant inform Tenant employees of these
lockout procedures.
14. All service requests of Tenant required of Landlord shall be administered
through Building management office. Tenants will not contract independently
with employees and agents of Landlord without the coordination of the
management office, nor shall Tenant request employees or agents of Landlord
to receive or carry messages for or to any Tenant or other person.
15. None of the entries, passages, doors, elevators, elevator doors, hallways,
or stairways shall be blocked or obstructed, nor shall any rubbish, litter,
trash, or material of any nature be placed, emptied, or thrown into these
areas, nor shall such areas be used at any time except for ingress and
egress by Tenant, Tenant's agents, employees, or invitees.
16. No boxes, crates, pallets, or other such materials shall be stored in
building hallways or other common areas. When Tenant must dispose of
crates, boxes, etc., it will be the responsibility of Tenant to dispose of
same prior to, or after the hours of 8:00 a.m. and 6:00 p.m., so as to
avoid having such debris visible or being moved in the Common Areas during
normal business hours. If such items are desired to be removed as part of
evening janitorial service, the expense of such will be borne by Tenant.
Exhibit B (Page 2)
17. Each Tenant shall cooperate with Landlord's employees in keeping leased
premises neat and clean.
18. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which whey were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown or placed
therein. Damages or maintenance expense resulting from any misuse of
fixtures or disposal of the above by Tenant, its servants, employees,
agents, visitors, or licensees, shall be borne by Tenant.
19. Unless otherwise provided for in this Lease, Tenant shall not xxxx, paint,
drill into, or in any way deface any part of the Premises or the Building,
except for Tenant's interior design components and furnishings in the
Premises or the approved signage. Other than for initial move-in, no
boring, cutting, or stringing for wires shall be permitted without the
prior written consent of Landlord and as Landlord may direct.
20. Unless otherwise provided in this Lease, neither Tenant, nor its servants,
employees, agents, visitors, or licensees, shall at any time bring or keep
upon the Premises any flammable, combustible, or explosive fluid, chemical
or substance (including Christmas trees and ornaments) except such items as
may be incidentally used, provided Tenant notifies Landlord of the location
thereof and makes adequate provision for safe storage. No space heaters or
fans shall be operated or located in the Premises, other than UL approved
or Landlord installed appliances.
21. No bicycles, vehicles, or animals, except for the disabled, shall be
brought into or kept in or about the Premises or Building.
22. Tenant will not locate furnishings or cabinets adjacent to mechanical or
electrical panels, HVAC equipment or other mechanical equipment so as to
prevent personnel from servicing such units or equipment as routine or
emergency access may require. Cost of moving such furnishings for
Landlord's access will be borne by Tenant.
23. No space in the Premises or Building shall be used for manufacturing, for
lodging, sleeping, storage of money in excess of $300, storage of drugs or
medicine not typically found of quality or quantity in lst Aid supply kits
or for legal purposes.
24. Tenant shall not place, install or operate on the demised premises or in
any part of Building, any engine, stove, or machinery, or conduct
mechanical operations or xxxx thereon or therein except Tenants microwave,
refrigerator, office and communication equipment.
25. Tenant must obtain prior written approval, which shall be at Landlord's
sole discretion, for installation of window shades, blinds, drapes, or any
other window treatment of any kind whatsoever which would be visible from
exterior of building other than Landlord supplied. Landlord will approve
all internal lighting that may be visible from the exterior of the Building
and shall have the right to change any unapproved lighting, without notice
to Tenant, at Tenant's expense.
26. Tenant will coordinate with Landlord all Tenant arranged contractors, and
installation technicians, rendering any construction or installation
service to Tenant before performance of any such service. This provision
shall apply to all work performed in the Building by Tenant arranged
contractors including the installation of telephones, telegraph equipment,
electrical devices and attachments, and the installation of any nature
affecting the floors, walls, woodwork, trim, windows, ceiling, equipment
(other than Tenant's office equipment), or any other physical
Exhibit B (Page 3)
portion of the Building.
27. Tenant shall, at its expense, provide artificial light for the employees of
Landlord while making repairs or providing services in said Premises
regardless of whether occurring during business or non-business hours after
lease commencement date.
28. Smoking is prohibited in common entrances, vestibules, passages, corridors,
halls, elevators, stairways, and toilet rooms of the Building. Tenant is
responsible for informing all of its vendors, service providers, agents,
employees, licensees, and visitors of this policy. Landlord reserves the
right to request that any person(s) engaged in the act of smoking (in the
common areas recited above), at this or her choice, either cease smoking or
leave the common areas of the Building immediately.
29. Canvassing, soliciting, and peddling in the Building and Parking Lot is
prohibited. Landlord and Tenant shall cooperate to prevent same.
30. Tenant shall restrict parking by Tenant, its employees, service providers,
agents, and visitors to parking areas designated by Landlord and shall
comply with reasonable parking rules and regulations as may be posted and
distributed from time to time.
31. Tenant will evacuate the Premises and Building in the event of emergency or
catastrophe notification; whether practice drill, false alarm, or actual
occurrence.
32. Tenant will notify Landlord of any incidents, accidents, injuries, or
hazards which Tenant is aware of, which occur, or are present in Premises
or Building.
33. Tenant will be requested to participate in recycling and other expense
reduction programs offered by Building.
34. Landlord reserves the right to rescind any of these rules and make such
other and further reasonable rules and regulations as in Landlord's
reasonable judgment shall from time to time be needed for the safety,
protection, care and cleanliness of the Building, the operation thereof,
the preservation of good order therein, and the protection and comfort of
its tenants, their agents, employees, and invitees, which rules when made
and notice thereof given to a tenant shall be binding upon Tenant in the
manner as if originally prescribed.
Landlord desires to maintain high standards of environmental comfort and
convenience for the Tenants of Building. It will be appreciated if any
undesirable conditions, lack of courtesy or attention are reported directly to
the management.
Exhibit B (Page 4)
(LOGO) Transfer Form
THIS FORM IS TO BE USED IN THOSE CASES WHERE A LETTER OF CREDIT IS TRANSFERRED
IN ITS ENTIRETY AND NO SUBSTITUTION OF INVOICE IS REQUESTED
International Trade Services Department DATE ___________________
Comerica Bank
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
Re: Credit issued by
Your Advice No. ________________________
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably transfers to:
________________________________________________________________________________
(NAME OF TRANSFEREE)
________________________________________________________________________________
(ADDRESS)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary in such Letter of
Credit are transferred to the transferee and the transferee shall have the sole
rights as beneficiary thereof, including sole rights relating to any amendments,
whether increase or expansions or other amendments and whether now existing or
hereafter made. All amendments are to be advised direct to the transferee
without necessity of any consent of or notice to the undersigned beneficiary.
The advice of such Letter of Credit is returned herewith together with any and
all amendments, and we ask you to enter the transfer on the reverse of the
advice, and forward it direct to the transferee with your customary notice of
transfer.
Enclosed is remittance of $_____________ in payment of your transfer commission
and in addition thereto we agree to pay to you on demand any expenses which may
be incurred by you in connection with this transfer.
SIGNATURE AND LEGAL CAPACITY Very truly yours,
GUARANTEE
------------------------------------- ----------------------------------------
(BANK) (BENEFICIARY)
------------------------------------- ----------------------------------------
(AUTHORIZED SIGNATURE) (SIGNATURES OF BENEFICIARY)
COMERICA BANK HAS PREPARED THIS SPECIMEN UPON REQUEST AND BASED ON INFORMATION
SUPPLIED TO IT. NO REPRESENTATION OR COMMITMENT IS MADE BY THE ISSUING BANK
REGARDING THE ACCURACY OR SUITABILITY OF THIS SPECIMEN FOR ITS INTENDED PURPOSE
OR THE WILLINGNESS OF COMERICA BANK TO ISSUE THIS LETTER OF CREDIT IN THIS OR
ANY OTHER FORM.
APPROVED BY _________________________ DATE ______________
TELEX NO: 160455 CMACALLB COMERICA BANK
FAX NO: 000-000-0000 INTERNATIONAL TRADE SERVICES -MC 4659
SWIFT: MNBDUS6LAX 0000 XXXXXXXXX XXX., 0XX XXXXX
XX XXXXXXX, XX 00000
DATE: ______________
BENEFICIARY:
BURLINGTON XXXXX OFFICE TRUST NO. 2
C/O FINARD & COMPANY, LLC
XXX XXXXXXXXXX XXXXX XXXXX
XXXXXXXXXX, XX 00000
AS "LANDLORD"
APPLICANT:
SOUNDBITE COMMUNICATIONS, INC.
TWO XXXXXXXXXX XXXXX XXXXX
XXXXXXXXXX, XX 00000
AS "TENANT"
LETTER OF CREDIT NO _________
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. ___________ IN
YOUR FAVOR FOR THE ACCOUNT OF SOUNDBITE COMMUNICATIONS, INC., UP TO THE
AGGREGATE AMOUNT OF USD 35,770.67(THIRTY FIVE THOUSAND SEVEN HUNDRED SEVENTY AND
67/100 U.S. DOLLARS ONLY) TO EXPIRE ON JULY 31, 2006 AVAILABLE BY PAYMENT OF
YOUR DRAFT AT SIGHT ON COMERICA BANK WHEN ACCOMPANIED BY THE FOLLOWING
DOCUMENTS:
1. A WRITTEN AND DATED STATEMENT FROM THE BENEFICIARY PURPORTEDLY SIGNED BY THE
BENEFICIARY OR BY AN AUTHORIZED OFFICER OR AGENT INDICATING NAME AND TITLE OF
SIGNER WITH THE FOLLOWING WORDING:
"THE AMOUNT REPRESENTS FUNDS DUE AND OWING TO US FROM APPLICANT PURSUANT TO THAT
CERTAIN LEASE BY AND BETWEEN BENEFICIARY, AS LANDLORD, AND APPLICANT, AS
TENANT."
OR
"WE HEREBY CERTIFY THAT WE HAVE RECEIVED NOTICE FROM COMERICA BANK
PAGE TWO
STANDBY LETTER OF CREDIT NO. ________
THAT LETTER OF CREDIT NO. ___________ WILL NOT BE EXTENDED, AND THAT WE HAVE NOT
RECEIVED A REPLACEMENT OF THIS LETTER OF CREDIT FROM APPLICANT SATISFACTORY TO
US AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION DATE OF THIS LETTER OF
CREDIT."
2. THE ORIGINAL LETTER OF CREDIT AND ANY AMENDMENTS THERETO.
THE LEASE AGREEMENT MENTIONED IN THIS LETTER OF CREDIT IS FOR IDENTIFICATION
PURPOSES ONLY AND IT IS NOT INTENDED THAT SAID LEASE AGREEMENT BE INCORPORATED
HEREIN OR FORM PART OF THIS LETTER OF CREDIT.
SPECIAL CONDITIONS:
PARTIAL DRAWINGS ARE PERMITTED. THIS LETTER OF CREDIT MUST ACCOMPANY ANY
DRAWINGS HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO
THE BENEFICIARY UNLESS IT IS FULLY UTILIZED.
DRAFT(S) AND DOCUMENT(S) MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF
CREDIT.
ALL DRAFT(S) DRAWN UNDER THIS STANDBY LETTER OF CREDIT MUST BE MARKED "DRAWN
UNDER COMERICA BANK STANDBY LETTER OF CREDIT NO. ________________".
IT IS A CONDITION OF THIS STANDBY LETTER OF CREDIT THAT IT SHALL BE
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR AN ADDITIONAL PERIOD(S) OF ONE
YEAR, BUT NOT BEYOND JULY 31, 2008, UNLESS AT LEAST SIXTY(60) DAYS PRIOR TO THE
EXPIRATION DATE, WE NOTIFY YOU BY OVERNIGHT COURIER AT THE ADDRESS INDICATED
ABOVE, UNLESS A CHANGE OF ADDRESS IS OTHERWISE NOTIFIED BY YOU TO US IN WRITING,
THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT.
THIS LETTER OF CREDIT IS TRANSFERABLE SUCCESSIVELY IN ITS ENTIRETY ONLY UP TO
THE THAN AVAILABLE AMOUNT IN FAVOR OF ANY NOMINATED TRANSFEREE THAT IS THE
SUCCESSOR IN INTEREST TO BENEFICIARY OR IS THE NEW OWNER OF CERTAIN STATED
PROPERTY ("TRANSFEREE"), ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE IN
COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATIONS, INCLUDING BUT NOT LIMITED
TO THE REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S. DEPARTMENT OF
COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINAL
AMENDMENT(S), IF ANY, MUST BE SURRENDERED TO US TOGETHER WITH OUR TRANSFER FORM
(ATTACHED) AND PAYMENT OF OUR TRANSFER FEE OF 1/4 OF 1% OF THE TRANSFER AMOUNT
(MINIMUM 250.00 PLUS 25.00 COURIER CHARGE)
IN THE EVENT THIS STANDBY LETTER OF CREDIT IS NO LONGER REQUIRED THE ORIGINAL
LETTER OF CREDIT AND ALL AMENDMENTS THERETO MUST BE SUBMITTED TO COMERICA
PAGE THREE
STANDBY LETTER OF CREDIT NO. ________
BANK TOGETHER WITH A SIGNED LETTER FROM THE BENEFICIARY'S OR ITS AUTHORIZED
OFFICER OR AGENT ADDRESSED TO COMERICA BANK AGREEING TO ITS CANCELLATION.
EXCEPT AS OTHERWISE EXPRESSLY STATED, THIS STANDBY LETTER OF CREDIT IS SUBJECT
TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (UCP) INTERNATIONAL
CHAMBER OF COMMERCE, 1993 REVISION, PUBLICATION 500.
WE HEREBY ENGAGE WITH YOU THAT ALL DOCUMENTS DRAWN UNDER AND IN COMPLIANCE WITH
THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO
COMERICA BANK, INTERNATIONAL DEPT. 000 XXXXXXXX XXX., 24TH FLOOR, XXX XXXXXXX
XXXXXX, XXXXXXX, XX 00000 ON OR BEFORE EXPIRATION DATE OR ANY AUTOMATICALLY
EXTENDED DATE.
-------------------------------------
AUTHORIZED SIGNATURE
EXHIBIT D
LANDLORD'S WORK
Landlord's Work shall consist solely of the following work:
a. Paint and carpet the Premises using building standard finishes;
b. Make all necessary repairs and/or replacements to the ceiling and
lighting fixtures in the "demo room" such that it is generally
consistent with the remainder of the Premises;
c. Rebalance all perimeter stand-alone HVAC units within the Premises;
d. Remove current wall covering from the walls of the Premises;
e. Replace the bulbs and/or ballasts in the ceiling light fixtures within
the Premises, as needed;
f. Touch up the doors in the Premises with stain and/or pain, as needed,
to remove nicks and blemishes;
g. Perform minor upgrade the bathrooms within the Premises to Building
Standard finish;
h. Make all necessary repairs, if any, to the supplemental HVAC unit
serving the computer room in the Premises in order that such unit is
in good working order. (Tenant shall be responsible for all
maintenance and repairs necessary during the Lease Term.)
i. Remove wall as per discussion between Xxxxx Xxxxx and Xxx Xxxxx.
Landlord shall perform and complete Landlord's Word in a good and workmanlike
manner and using building standard finishes and construction materials, to the
extent applicable to such work. To the extent Tenant is required or has the
option to select colors and finishes in connection with Landlord's Work, Tenant
shall promptly make such selections from the building standard selections
offered by Landlord. Tenant shall be responsible for and shall pay directly or
promptly pay to Landlord for, or indemnify and reimburse Landlord for, from and
against, as the case may be, any costs or expenses resulting from Tenant's
upgrades from building standard construction materials or Tenant's upgrades or
changes to any plans or specifications, if any, relating to Landlord's Work.
Exhibit D (Page 1)
FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE is made this ____ day of August, 2005,
between BURLINGTON XXXXX OFFICE TRUST NO. 2, having a mailing address c/o Finard
& Company, LLC, Xxx Xxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
("LANDLORD") and SOUNDBITE COMMUNICATIONS, INC., having a mailing address of Two
Xxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("TENANT").
BACKGROUND:
A. Reference is made to a Lease dated December, __ 2004, between Landlord
and Tenant (the "LEASE") demising approximately 9,963 rentable square feet of
space located on the third (3rd) floor of the Building (the "PREMISES") as more
fully described in the Lease. All capitalized terms used but not defined herein
shall have the same meaning as in the Lease.
B. Landlord and Tenant are the current holders, respectively, of the
lessor's and lessee's interests in the Lease.
C. Landlord and Tenant now desire to amend the Lease as set forth below.
AGREEMENTS:
In consideration of the mutual covenants and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant hereby agree to amend the
Lease as follows:
1. Term. Landlord and Tenant acknowledge and agree that the Term of the
Lease commenced on May 1, 2005 and is hereby extended by one (1) month such that
it shall expire on May 31, 2008 unless the Lease is otherwise terminated as
provided therein.
2. Expansion Space; Effective Date. Upon the Effective Date (as defined
below), approximately 9,703 rentable square feet of space located on the second
(2nd) floor of the Building as shown on Exhibit A-l attached hereto (the
"EXPANSION SPACE") shall be deemed added to and incorporated into the Premises
demised under the Lease. Upon the Effective Date, all references to the Premises
shall include the Expansion Space, and all references to Exhibit A in the Lease
shall be deemed to include and refer to Exhibit A-l, except as specifically set
forth herein. The Expansion Space shall be delivered free of all occupants,
personal property, trade fixtures and equipment and shall be accepted by Tenant
in an "As-Is" condition without any warranty of fitness for use or occupancy,
expressed or implied; provided, however, on or before the Effective Date,
Landlord shall complete the following work in a good and workmanlike manner
using, where applicable, Landlord's building standard design and construction
materials and finishes: (i) rebalance all perimeter stand alone HVAC units
within the Expansion Space; (ii) ensure that the ceiling lighting fixtures
serving the Expansion Space are in good working order; (iii) re-paint the walls,
and re-carpet the floors, of the Expansion Space; (iv) remove one (1) internal
wall and repair the ceiling in the northeast portion of the Expansion Space as
shown on Exhibit A-l; and (v) upgrade the restrooms within the Premises
(collectively, "LANDLORD'S WORK"). Landlord shall pay the costs and expenses
relating to Landlord's Work based on Landlord's building standard design and
construction materials and finishes; provided that Tenant shall be responsible
for and shall pay directly or promptly pay to Landlord for, as appropriate, and
indemnify and reimburse Landlord for, from and against, any costs or expenses
resulting from Tenant's upgrades from building standard construction materials
or finishes or Tenant's upgrades or changes to any plans or specifications
relating to Landlord's Work. To the extent Tenant is required or has the option
to select colors and finishes for Landlord's Work, Tenant shall promptly make
such selections from the building standard selections offered by Landlord.
Landlord shall endeavor to provide Tenant with at least two (2) weeks prior
notice
to the estimated completion of Landlord's Work to give Tenant the right to
install furniture, fixtures and equipment and the conduct of other
non-operational activities in the Expansion Space. Tenant shall be liable for
any damages or delays caused by Tenant's activities at the Expansion Space.
Prior to entering the Premises, Tenant shall obtain all insurance it is required
to obtain by the Lease as to the Expansion Space, if any, and shall provide
certificates of said insurance to Landlord. Tenant shall coordinate such entry
with Landlord's building manager, and such entry shall be made in compliance
with all terms and conditions of the Lease and the rules and regulations in
effect from time to time. The "EFFECTIVE DATE" shall be the earlier of the date
(i) upon which Landlord delivers the Expansion Space to Tenant for Tenant's use
in accordance with the terms and conditions of the Lease, or (ii) Tenant
commences the conduct of business in the Expansion Space. The anticipated
Effective Date is October 1, 2005, subject to delays caused by factors beyond
the reasonable control of Landlord. Landlord shall not be liable to Tenant for
any failure to deliver the Expansion Space on any specified date; provided,
however, Tenant shall not be required to pay rent or any other charges on the
Expansion Space until it has been delivered to Tenant as required hereunder.
Landlord and Tenant agree to execute a supplemental agreement confirming the
actual Effective Date once same is determined. Notwithstanding the foregoing, if
the Effective Date has not occurred on or before December 1, 2005 for any reason
other than any Tenant Delay (as defined below), than Tenant may, terminate this
First Amendment upon fifteen (15) days written notice and upon such fifteenth
(15th) day following such notice this First Amendment shall terminate and be of
no further force or effect unless within such fifteen (15) day period Landlord
completes Landlord's Work and delivers the Expansion Space as required hereunder
in which event Tenant's termination shall be void. In the event Tenant exercises
its termination right hereunder the Lease shall remain in full force and effect
as if this First Amendment had never been executed and delivered and nothing
provided herein shall give Tenant the right to terminate the Lease. As used
herein, the term "Tenant Delay" shall mean any delay caused by: (i) any change
in Landlord's Work requested by Tenant; (ii) Tenant's failure to promptly
approve or make any election relating to Landlord's Work after request therefor;
(iii) any request by Tenant for a delay in the commencement or completion of
Landlord's Work for any reason; or (iv) any other act or omission of Tenant or
its employees, agents or contractors.
3. Basic Lease Provisions. Upon the Effective Date (except as otherwise set
forth), the following changes shall be made to the data set forth in Section 1.2
of the Lease, entitled "Basic Data and Definitions":
a. Fixed Rent. As of the Effective Date, the subsection of Section 1.2
of the Lease entitled "Fixed Rent" is hereby deleted in its entirety and
replaced with the following:
Fixed Rent:
Period PSF Annual Fixed Rent Monthly Installment
------ -------- ----------------- -------------------
May 1, 2005-
Ninety (90) days following
the Effective Date $17.50 $174,352.50 $14,529.38
Ninety first (91st) day
Following the Effective
Date - April 1, 2006 $17.50 & $351,432.25 $29,286.03
$18.25*
May 1,2006-
December 31,2006 $18.00 & $356,413.75 $29,701.15
$18.25*
January 1, 2007-
2
April 1, 2007 $18.00 & $366,116.75 $30,509.73
$19.25*
May 1, 2007-
December 31, 2007 $18.50 & $371,098.25 $30,924.86
$19.25*
January 1, 2008-
May 31, 2008 $18.50 & $380,801.25 $31,733.44
$20.25*
* The rent per rentable square foot (PSF) amount set forth above states the
rent per rentable square foot of the original 9,963 rsf Premises as the
first number and the rent per rentable square foot of the 9,703 rsf
Expansion Premises as the second number per Period.
b. Premises. The subsection of Section 1.2 of the Lease entitled
"Premises" is hereby deleted in its entirety and replaced with the following
text:
"Premises: The portion of the Building (as defined above) located
on the second (2nd) and third (3rd) floors, as shown on
Exhibit A attached hereto and Exhibit A-1 attached to
the First Amendment of Lease."
c. Rentable Floor Area of the Premises. The subsection of Section 1.2
of the Lease entitled "Rentable Floor Area of the Premises" is hereby deleted in
its entirety and replaced with the following text:
"Rentable Floor Area of the Premises: 19,666 square feet."
e. Letter of Credit. The subsection of Section 1.2 of the Lease
entitled "Letter of Credit Amount" is hereby deleted in its entirety and
replaced with the following text:
"Security Deposit: $35,770.67; provided, that on or before the Effective
Date (as defined in the First Amendment of Lease) Tenant
shall cause an additional or replacement Letter of
Credit to be delivered to Landlord such that the
aggregate amount of such Letter(s) of Credit provided on
behalf of and held by Landlord shall be $65,283.97."
4. Termination of Right of First Offer. Section 2.5 of the Lease entitled
"Right of First Offer on Certain Additional Space is hereby deleted in its
entirety and of no further force or effect.
5. Broker. Each party warrants and represents that it has not dealt with
any broker other than Xxxxxxxxx & Xxxx Colliers International and Xxxxxxxx Xxxxx
Xxxxx & Partners, LLC in connection with the consummation of this Amendment, and
in the event any claim is made against the Landlord or the Tenant relative to
dealings with brokers other than the aforesaid brokers, the party breaching such
warranty and representation shall defend the claim against the first party with
counsel of the indemnified party's selection and save harmless and indemnify
such party on account of loss, cost or damage which may arise by reason of any
such claim.
6. Reaffirmation. In all other respects the Lease shall remain unmodified
and shall continue in full force and effect, as amended hereby. The parties
hereby ratify, confirm, and reaffirm all of the terms and conditions of the
Lease, as amended hereby.
3
EXECUTED under seal as of the date first written above.
TENANT:
SOUNDBITE COMMUNICATIONS, INC.
By: /s/ Xxxxxxxxxxx Xxxxx
---------------------------------
Its: CFO
duly authorized
LANDLORD:
BURLINGTON XXXXX OFFICE TRUST #2
By: /s/ Illegible
---------------------------------
Its: AUTH. AGENT
duly authorized
By: /s/ Illegible
---------------------------------
Its: AUTH. AGENT
duly authorized
4
EXHIBIT A-1
PLAN OF EXPANSION SPACE
5
(FLOOR PLAN)
