LEASE
THIS INSTRUMENT IS A LEASE, dated as of January __ 2005, by and between
492 OCP LLC, a Massachusetts limited liability company, as Landlord, and
MOLDFLOW CORPORATION (NASDAQ: MFLO), a Delaware corporation, as Tenant, which
relates to space in the building known as Framingham Corporate Center (the
"BUILDING") located at 000 Xxx Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx. The
parties to this instrument hereby agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. The following terms and provisions set forth basic data and,
where appropriate, constitute definitions of the terms hereinafter listed:
1.2 BASIC DATA.
LANDLORD: 492 OCP, LLC, a Massachusetts limited liability company
LANDLORD'S ADDRESS:
x/x XXXXX Xxx.
Xxxxx X-0
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
TENANT: Moldflow Corporation (NASDAQ: MFLO), a Delaware corporation
TENANT'S ORIGINAL ADDRESS: 000 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: ________________
GUARANTOR: None.
BASIC RENT:
PERIOD BASIC RENT (PER ANNUM) MONTHLY PAYMENT PER R.S.F.
(LEASE YEARS)
1 $393,486.25 $ 32,790.52 $ 21.25
2 $407,374.00 $ 33,947.83 $ 22.00
3 $430,520.25 $ 35,876.69 $ 23.25
4 $444,408.00 $ 37,034.00 $ 24.00
5 $467,554.25 $ 38,962.85 $ 25.25
6 $481,442.00 $ 40,120.17 $ 26.00
7 $504,588.25 $ 42,049.02 $ 27.25
Notwithstanding anything to the contrary contained in this Lease, provided
Tenant is not in default in the performance of its obligations under this Lease,
Basic Rent shall be abated for the first five (5) months of the Initial Term. If
Basic Rent is abated pursuant to Section 4.4 due to a delay in the completion of
Landlord's Work not attributable to Tenant's Delay (as defined in Section 4.4),
said five (5) month period shall commence at the expiration of such abatement.
COMMENCEMENT DATE: April 1, 2005.
TENANT'S ELECTRICAL CHARGE: $1.25 per r.s.f., subject to adjustment as
provided in Exhibit C.
PREMISES RENTABLE AREA: Approximately 18,517 square feet. Said rentable
area is agreed to by the parties and is not subject to further measurement
or computation.
PERMITTED USE: General office purposes, and no other purpose.
ESCALATION FACTOR: 11.61% as computed in accordance with the Escalation
Factor Computation
INITIAL TERM: Seven (7) years, beginning on the Commencement Date.
EXTENSION TERM: One (1) five (5) year period, as provided in Section
14.31.
SECURITY DEPOSIT: $37,254.00, payable by letter of credit as provided in
Section 14.27.
BASE OPERATING EXPENSES: $1,021,371.00
BASE TAXES: $662,375.00
1.3 ADDITIONAL DEFINITIONS.
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MANAGER: Maric, Inc., or any successor management company retained by
Landlord for the purpose of providing management services to the Property.
BUILDING RENTABLE AREA: 159,528 rentable square feet
BUSINESS DAYS: All days except Saturday, Sunday, New Year's Day, Xxxxxx
Xxxxxx Xxxx Day, President's Day, Patriots Day, Memorial Day, Independence
Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas
Day (and the following day when any such day occurs on Sunday).
DEFAULT OF TENANT: As defined in Section 13.1.
ESCALATION CHARGES: The amounts prescribed in Article VIII, Article IX,
Section 14.18 and the Tenant's Electrical Charge.
ESCALATION FACTOR COMPUTATION: Premises Rentable Area divided by the
Building Rentable Area.
FORCE MAJEURE: Collectively and individually, strike or other labor
trouble, fire or other casualty, governmental preemption of priorities or
other controls in connection with a national or other public emergency or
shortages of, or inability to obtain, fuel, supplies or labor resulting
therefrom, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control.
INITIAL PUBLIC LIABILITY INSURANCE: Three Million and No/100ths
($3,000,000.00) Dollars per occurrence (combined single limit) for
property damage, bodily injury or death with an aggregate limit of Five
Million and No/100ths ($5,000,000.00) Dollars.
LAND PARCEL: The parcel of land upon which the Building is located shown
on a certain plan entitled "Plan of Land in Framingham, Mass. owned by
Xxxxxx X. XxXxxxxx" dated February 22, 1982, Scale 1" = 40', prepared by
XxXxxxxx and Xxxxxxxx Engineering, Inc., which plan is recorded with
Middlesex South Registry of Deeds in Book 14550, Page 283.
LEASE YEAR OR LEASE YEAR. Each consecutive 12 calendar month period
commencing on the Commencement Date and each anniversary thereof.
OPERATING EXPENSES: As set forth in Article IX.
OPERATING YEAR. As defined in Section 9.1.
PREMISES: The portion of the floor of the Building shown on Exhibit A
annexed hereto.
PROPERTY: The Building and the Land Parcel.
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TAX YEAR: As defined in Section 8.1.
TAXES: As determined in accordance with Section 8. 1.
TENANTS REMOVABLE PROPERTY: As defined in Section 5.2.
TERM OF THIS LEASE: The Initial Term and any extension thereof in
accordance with the provisions hereof.
EXHIBITS: The following Exhibits are annexed to this Lease and
incorporated herein by this reference:
Exhibit A - Plan Showing Premises
Exhibit B - Landlord's Work
Exhibit C - Building Services
Exhibit D - Operating Expenses
ARTICLE II
PREMISES AND APPURTENANT RIGHTS.
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for the
Term of this Lease and upon the terms and conditions hereinafter set
forth, and Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as appurtenant
to the Premises, the non-exclusive right to use, and permit its invitees
to use in common with others, the common entrances, exits, roads and
walkways on the Land Parcel, public or common lobbies, hallways,
stairways, and elevators and common walkways necessary for access to the
Building, and if the portion of the Premises on any floor includes less
than the entire floor, the common toilets, corridors and elevator lobby of
such floor. In addition, Tenant shall have the non-exclusive right in
common with others from time to time entitled thereto to the use of the
loading docks serving the Building and sixty-five (65) unassigned parking
spaces in common with other tenants and occupants of the Building.
Tenant shall have no other appurtenant rights other than those
specifically set forth in this Section 2.2(a) and all such rights shall
always be subject to reasonable rules and regulations from time to time
established by Landlord pursuant to Section 14.7 and to the right of
Landlord to designate and change from time to time areas and facilities so
to be used.
(b) Excepted and excluded from the Premises are the ceiling, floor,
perimeter walls and exterior windows, except the inner surfaces thereof
and any space or areas in the
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Premises used for shafts, pipes, stacks, conduits, fan rooms ducts,
electricity or other utilities, mechanical rooms or other Building
facilities, but the entry doors (and related glass and finish work) to the
Premises are a part thereof. Tenant agrees that Landlord shall have the
right to place in the Premises interior storm windows, subcontrol devices
(by way of illustration, an electric sub panel, etc.), utility lines,
pipes, equipment and the like, in, over and upon the Premises. Tenant
shall install and maintain, as Landlord may require, proper access panels
in any hung ceilings or walls as may be installed by Tenant in the
Premises to afford access to any facilities above the ceiling or within or
behind the walls.
(c) All automobile parking areas, driveways, entrances and exits thereto,
and other facilities furnished by Landlord in or near the Building,
including employee parking areas, loading docks, if any, sidewalks and
ramps, landscaped areas, exterior stairways, rest rooms and other areas
and improvements provided by Landlord for the general use, in common, of
tenants, their officers, agents, employees, clients and customers shall at
all times be subject to the exclusive control and management of Landlord.
Landlord shall have the right to construct, maintain and operate lighting
facilities on all said areas and improvements, to police same, from time
to time to change the area, level, location and arrangement of parking
areas and other facilities hereinabove referred to, to restrict parking by
tenants, occupants and their respective employees to employee parking
areas, to designate parking spaces for "visitor" or "reserved" parking, to
close all or any portion of said parking areas or facilities to such
extent as may, in the reasonable opinion of Landlord, be legally required
to prevent a dedication thereof or the accrual of any right to any person
or the public therein, to close temporarily all or any portion of the
parking areas or facilities, to discourage parking by persons not having
business in the Building, and to do and perform such other acts in and to
said parking areas and facilities as Landlord shall determine to be
advisable. Landlord will operate and maintain the common facilities
referred to above in a manner consistent with other first class office
buildings in the Natick/Framingham area.
(d) Landlord hereby reserves the right at any time to remodel, refurbish,
make alterations or additions to the Building, provided, however, that
Landlord will make reasonable efforts not to interfere with Tenants
business operations to the extent possible. Tenant agrees that Tenant will
not, through any act or omission on the part of Tenant, in any way hinder,
impede, frustrate the efforts of the Landlord in commencing and/or
completing such alterations, additions, remodeling or refurbishing in a
timely fashion. Landlord further reserves the exclusive right to the roof.
(e) If requested by Landlord, Tenant shall notify Landlord of the license
plate number, year, make and model of the automobiles entitled to use the
parking facilities and if Landlord shall institute a program to control
access to parking area by means of parking stickers, access cards or
similar means, Tenant shall require its employees to participate in such
program.
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ARTICLE III
BASIC RENT
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by Landlord,
commencing on the Commencement Date without offset, abatement (except as
otherwise expressly provided in this Lease), deduction or demand, the
Basic Rent and Tenant's Electrical Charge. Such Basic Rent and Tenant's
Electrical Charge shall be payable in equal monthly installments, in
advance, on the first day of each and every calendar month during the Term
of this Lease, at Landlord's Original Address, or at such other place as
Landlord shall from time to time designate by notice to Tenant, in lawful
money of the United States. Until notice of some other designation is
given, Basic Rent, Tenant's Electrical Charge and all other charges for
which provision is herein made shall be paid by remittance payable to
Landlord and addressed to the Manager, x/x Xxxxx, Xxx., X.X. Xxx 000,
Xxxxxx, XX 00000-0000, and all remittances so received as aforesaid, or by
any subsequently designated recipient, shall be treated as a payment to
Landlord. Upon the written request of Tenant, Landlord (or the Manager)
will provide Tenant with information necessary to have payments of Basic
Rent and other charges payable by Tenant hereunder paid by direct wire
transfer to an account specified by Landlord. In the event that any
installment of Basic Rent or Tenant's Electrical Charge is not paid when
due, Tenant shall pay, in addition to any Escalation Charges or other
additional charges due under this Lease, an administrative fee equal to
five percent (5%) of the overdue payment.
(b) Basic Rent and Tenant's Electrical Charge for any partial month shall
be pro-rated on a daily basis, and if the first day on which Tenant must
pay Basic Rent and Tenant's Electrical Charge shall be other than the
first day of a calendar month, the first payment which Tenant shall make
to Landlord shall be equal to a proportionate part of the monthly
installment of Basic Rent and Tenant's Electrical Charge for the partial
month from the first day on which Tenant must pay Basic Rent and Tenant's
Electrical Charge to the last day of the month in which such day occurs,
plus the installment of Basic Rent and Tenant's Electrical Charge for the
succeeding calendar month.
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ARTICLE IV
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. The Commencement Date shall be April 1, 2005.
Notwithstanding the foregoing, if Tenant's personnel shall occupy all or
any part of the Premises for the conduct of its business prior to the
Commencement Date, such date shall for all purposes of this Lease be the
Commencement Date. Tenant shall, upon demand of the Landlord, execute a
certificate confirming the Commencement Date as it is determined in
accordance with the provisions of this Section 4.1.
4.2 EARLY ACCESS. Landlord shall provide Tenant with early access to the
premises seven (7) days prior to the estimated Commencement Date under
this Lease for purposes of installing furniture and equipment in the
Premises provided that Tenant shall not interfere with the timely
completion of Landlord's Work. Such access to the Premises shall in no way
be deemed to be an occupancy or other event triggering the commencement of
this Lease under Section 4.1 of this Lease.
4.3 PREMISES TO BE DELIVERED "AS IS". The Premises are to be delivered by
Landlord vacant and free of other tenants or occupants, and in broom clean
condition, "as is," except for Landlord's Work to be completed as provided
in Section 4.4 below. Tenant acknowledges that it has inspected the
Premises, and that it is not relying on any representations and warranties
by Landlord or any agreements by Landlord not expressly set forth in this
Lease. Landlord represents and warrants that, to the best knowledge of
Landlord, the Building and the Building systems are in compliance with all
Requirements (as defined in Section 7.2).
4.4 LANDLORD'S WORK. Landlord shall cause to be performed at Landlord's sole
cost and expense the work required by Exhibit B ("LANDLORD'S WORK") to be
substantially complete prior to the Commencement Date. All such work shall
be done in a good and workmanlike manner employing building standard
methods and materials, and so as to conform to all applicable building and
zoning laws. Tenant agrees that Landlord may make any immaterial changes
in such work which may become reasonably necessary or advisable, without
approval of Tenant; and Landlord may make material changes in such work
but only with the prior approval of Tenant or if required by any
applicable law or regulation. Tenant agrees to review and approve or
disapprove plans or specifications or proposed changes to Landlord Work
for which Tenant's approval is required within five (5) business days of
submittal to Tenant. If Tenant does not so respond, such plans or
specifications shall be deemed approved. The term "substantially
complete," as used herein, shall mean that Landlord's Work to be performed
pursuant to Exhibit B has been completed with the exception of minor items
which can be fully completed without material interference with Tenant's
use and occupancy and other items which because of the season or weather
or the nature of the item are not practicable to do at the time, provided
that none of said items is necessary to make the Premises tenantable for
the Permitted Uses. Tenant opening for business and operating in the
Premises shall
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be deemed conclusive evidence of substantial completion of Landlord's
Work. A certificate of completion by a licensed architect or professional
engineer shall be conclusive evidence that Landlord's Work has been
substantially completed. In the event that Landlord's Work has not been
substantially completed on or before the Commencement Date for causes
other than Tenant's Delay (hereinafter defined), Tenant's obligation to
pay Basic Rent and/or Tenant's Electrical Charge shall be abated until
Landlord's Work is substantially complete. In the event that Landlord's
Work is not substantially complete for reasons other than Force Majeure on
or before August 1, 2005, Tenant may, as its sole remedy, by notice to
Landlord given prior to substantial completion of Landlord's Work, and in
any event prior to August 31, 2005, terminate this Lease, whereupon
Landlord shall return the Security Deposit, and neither party shall have
any further obligation to the other hereunder.
Tenant shall, within two (2) business days of request thereof, respond to
any request of Landlord, Landlord's architect or engineer for information
in connection with Landlord's Work. Any change orders, modifications,
and/or amendments proposed by Tenant to the Landlord's Work shall be
prepared by the Landlord and shall be submitted to Tenant for its prior
approval, which approval will not be unreasonably withheld, conditioned or
delayed. Tenant shall respond promptly after receipt thereof and shall
approve or disapprove the same within two (2) business days after receipt.
Tenant shall pay to Landlord all costs and expenses resulting from change
orders, modifications and/or amendments requested by Tenant and agreed to
by Landlord within fifteen (15) days of receipt of an invoice for such
costs.
As used herein, "TENANT'S DELAY" shall mean any delay in the substantial
completion of Landlord's Work as a result of: (i) Tenant's failure to
timely respond or to approve any change orders relating to Landlord's
Work, or (ii) any other reason for which Tenant is responsible.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
occupied by Tenant only for the Permitted Use and for no other purpose.
(b) Tenant agrees to conform to the following provisions during the Term
of this Lease:
(i) Tenant shall cause all freight to be delivered to or removed
from the Building and the Premises in accordance with reasonable rules and
regulations established by Landlord therefor;
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(ii) Tenant will not place on any part of the Building outside the
Premises (including both interior and exterior surfaces of doors and
interior surfaces of windows) any signs, symbol, advertisements or the
like visible to public view outside of the Premises;
(iii) In order to promote an attractive, uniform exterior appearance
Tenant shall comply with Landlord's requirements as to building standard
exterior window treatments;
(iv) Tenant shall not perform any act or carry on any practice which
may injure the Premises, or any other part of the Building, or cause
offensive odors or loud noise or constitute a nuisance or menace to any
other tenant or tenants or other persons in the Building; and
(v) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and regulations
including, without limitation, the Americans With Disabilities Act of
1990, as amended and any regulations promulgated thereunder.
5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions (including, for the purposes hereof, wall-to-wall
carpeting), or improvements in or to the Premises without Landlord's prior
written consent, which consent shall not be unreasonably withheld,
conditioned or delayed provided that such alterations (i) do not adversely
impact the quiet enjoyment of other tenants, (ii) equal or exceed the
current construction standards for the Building, and (iii) do not involve
a structural change to the Building or materially adversely impact base
Building systems (including, without limitation, mechanical, electrical,
plumbing, fire, life safety and security systems). Any such alterations,
additions or improvements shall (i) be in accordance with complete plans
and specifications prepared by Tenant and approved in advance by Landlord;
(ii) be performed in a good and workmanlike manner and in compliance with
all applicable laws including, without limitation, the Americans with
Disabilities Act of 1990, as amended and any regulations promulgated
thereunder; (iii) be performed and completed in the manner required in
Section 5.2(d) hereof; (iv) be made at Tenant's sole expense and at such
times as Landlord may from time to time designate; and (v) become a part
of the Premises and the property of Landlord.
(b) All articles of personal property and all machinery, equipment and
furniture owned or installed by Tenant solely at its expense in the
Premises ("TENANT'S REMOVABLE PROPERTY") shall remain the property of
Tenant and may be removed by Tenant at any time prior to the expiration of
this Lease, provided that Tenant, at its expense, shall repair any damage
to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any labor
or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for any such labor or materials shall attach
to or affect the reversion or other estate or interest of Landlord in and
to the Premises. Whenever and as often as any mechanic's lien
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shall have been filed against the Premises based upon any act or interest
of Tenant or of anyone claiming through Tenant, Tenant shall forthwith
take such actions by bonding, deposit or payment as will remove or satisfy
the lien.
(d) All of the Tenant's alterations, additions and installation of
furnishings shall be coordinated with any work being performed by Landlord
and in such manner as to maintain harmonious labor relations and not
damage the Property or interfere with Building construction or operation
and, except for installation of furnishings, shall be performed by
contractors or workmen first approved by Landlord. Installation and moving
of furnishings, equipment and the like shall be performed only with labor
compatible with that being employed by Landlord for work in or to the
Building and not to employ or permit the use of any labor or otherwise
take any action which might result in a labor dispute involving personnel
providing services in the Building. Except for work by Landlord's general
contractor, Tenant, before its work is started shall: secure all licenses
and permits necessary therefor; deliver to Landlord a statement of the
names of all its contractors and subcontractors and the estimated cost of
all labor and material to be furnished by each of them; and cause each
contractor to carry workmen's compensation insurance in statutory amounts
covering all the contractor's and subcontractor's employees and
comprehensive public liability insurance and property damage insurance
with such limits as Landlord may reasonably require but in no event less
than a combined single limit of Two Million and No/100ths ($2,000,000.00)
Dollars (all such insurance to be written in companies approved by
Landlord and insuring Landlord and Tenant as well as the contractors), and
to deliver to Landlord certificates of all such insurance. Tenant agrees
to pay promptly when due the entire cost of any work done on the Premises
by Tenant, its agents, employees, or independent contractors, and not to
cause or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Premises or the Property and
immediately to discharge any such liens which may so attach and, at the
request of Landlord to deliver to Landlord security satisfactory to
Landlord against liens arising out of the furnishing of such labor and
material. Upon completion of any work done on the Premises by Tenant, its
agents, employees, or independent contractors, Tenant shall promptly
deliver to Landlord original lien releases and waivers executed by each
contractor, subcontractor, supplier, materialmen, architect, engineer or
other party which furnished labor, materials or other services in
connection with such work and pursuant to which all liens, claims and
other rights of such party with respect to labor, material or services
furnished in connection with such work are unconditionally released and
waived. Tenant shall pay within fourteen (14) days after being billed
therefor by Landlord, as an additional charge hereunder, one hundred
percent (100%) of any increase in real estate taxes on the Property not
otherwise billed to Tenant which shall result from any alteration,
addition or improvement to the Premises made by or on behalf of Tenant
(excluding Tenant's initial build out and other alterations consistent
with building standard improvements).
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ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise, neither this Lease nor
the term and estate hereby granted, nor any interest herein or therein,
will be assigned, mortgaged, pledged, encumbered or otherwise transferred
and that neither the Premises nor any part thereof will be encumbered in
any manner by reason of any act or omission on the part of Tenant, or used
or occupied, by anyone other than Tenant, or for any use or purpose other
than a Permitted Use, or be sublet (which term, without limitation, shall
include granting of concessions, licenses and the like) in whole or in
part, or be offered or advertised for assignment or subletting.
(b) The provisions of paragraph (a) of this Section shall apply to a
transfer (by one or more transfers) of a majority of the stock or
partnership interests, or other evidences of ownership of Tenant as if
such transfer were an assignment of this Lease; but such provisions shall
not apply to transactions with an entity into or with which Tenant is
merged or consolidated or to which substantially all of Tenant's assets
are transferred or to any entity which controls or is controlled by Tenant
or is under common control with Tenant, provided that in any of such
events (i) the successor to Tenant has a net worth computed in accordance
with generally accepted accounting principles which Landlord determines,
in the exercise of commercially reasonable discretion, is sufficient to
support the obligations of Tenant under this Lease, as evidenced by proof
of such net worth satisfactory to Landlord in the exercise of commercially
reasonable discretion delivered to Landlord at least fifteen (15) business
days prior to the effective date of any such transaction, and (ii) the
assignee agrees directly with Landlord, by written instrument in form
satisfactory to Landlord in the exercise of commercially reasonable
discretion, to be bound by all the obligations of Tenant hereunder
including, without limitation, the covenant against further assignment or
subletting.
(c) If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may, at any time
and from time to time, collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to the rent and
other charges herein reserved, but no such assignment, subletting,
occupancy, collection or modification of any provisions of this Lease
shall be deemed a waiver of the foregoing covenant, or the acceptance of
the assignee, subtenant or occupant as a tenant or a release of the
original named Tenant from the further performance by the original named
Tenant hereunder. No assignment or subletting hereunder shall relieve
Tenant from its obligations hereunder and Tenant shall remain fully and
primarily liable therefor. No assignment or subletting, or occupancy shall
affect the Permitted Uses.
(d) If Tenant shall request Landlord to consent to an assignment of this
Lease or a subletting (a "REQUEST"), Tenant shall submit to Landlord in
writing: (i) the name of the
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proposed assignee or subtenant, (ii) such information as to its financial
responsibility and standing as Landlord may reasonably require, and (iii)
all terms and provisions upon which the proposed assignment or subletting
is to be made. Upon receipt from Tenant of such Request and information,
Landlord shall have an option (hereinafter referred to as the "TAKE BACK
OPTION") to be exercised in writing within thirty (30) days after its
receipt from Tenant of such Request and information, if the Request is to
assign the Lease or to sublet all of the Premises, to cancel or terminate
this Lease, or, if the Request is to sublet a portion of the Premises
only, to cancel and terminate this Lease with respect to such portion, in
each case, as of the date set forth in Landlord's notice (the "TAKE BACK
NOTICE") of exercise of such Take Back Option, which date shall be not
less than sixty (60) nor more than one hundred twenty (120) days following
the giving of such notice.
In the event Landlord shall exercise the Take Back Option by the giving of
a Take Back Notice, Tenant shall have the right to revoke its Request to
assign this lease or sublet the portion of the Premises as specified in
the applicable Request by written notice (a "REVOCATION NOTICE") to
Landlord given no later than 10 days after the date of the Take Back
Notice, whereupon Tenant's Request to the applicable assignment or
subletting shall be deemed revoked and Landlord's exercise of the Take
Back Option in the instance of the applicable Request shall be of no force
or effect.
In the event Landlord shall exercise the Take Back Option and Tenant shall
not timely deliver Landlord a Revocation Notice as specified above, then
Tenant shall surrender possession of the entire Premises, or the portion
which is the subject of the Take Back Option, as the case may be, on the
date set forth in such notice in accordance with the provisions of this
Lease relating to surrender of the Premises at the expiration of the Term.
If this Lease shall be cancelled as to a portion of the Premises only,
Basic Rent and Escalation Charges shall thereafter be abated
proportionately according to the ratio the number of square feet of the
portion of the space surrendered bears to the Premises Rentable Area. As
additional rent, Tenant shall reimburse Landlord promptly for all
reasonable legal and other expenses incurred by Landlord in connection
with any Request by Tenant for consent to an assignment or subletting.
If Landlord shall not exercise the Take Back Option pursuant to the
foregoing provisions, Landlord will not unreasonably delay or withhold its
consent to the assignment or subletting to the party referred in Tenant's
notice to Landlord upon the terms and provisions set forth in Tenant's
notice, provided that the terms and provisions of such assignment or
subletting shall specifically make applicable to the assignee or sublessee
all of the provisions of Article VI of the Lease so that Landlord shall
have against the assignee or sublessee all rights with respect to any
further assignment or subletting which are set forth in Article VI of the
Lease, except that no such assignee or sublessee shall have any right to
further assign this Lease or sublet the Premises or any portion thereof.
(e) In any case where Landlord consents to an assignment or subletting,
Landlord shall be entitled to receive fifty percent (50%) of all amounts
(the "OVERAGES") received by Tenant in excess of Basic Rent, Escalation
Charges and other items of additional rent
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reserved under this Lease attributable to the space sublet or assigned
including, without limitation, all lump sum payments made in connection
therewith. Payments of Overages shall be made by Tenant to Landlord as
additional rent within five (5) days of receipt thereof by Tenant.
(f) Landlord shall never be deemed unreasonable in denying its consent to
an assignment of this Lease or a subletting of all or any portion of the
Premises: (i) in the event that Landlord, in its reasonable judgment,
shall determine that the net worth or financial capability of such
proposed subtenant or assignee is insufficient to perform its obligations
as an assignee or subtenant; or (ii) if such subletting would result in
more than two (2) occupants of the Premises; or (iii) if such assignment
or subletting would require the Premises be used for other than the
Permitted Use or require alterations to the Premises inconsistent with the
Permitted Use, or would require a use in conflict with an exclusive
granted to another tenant in the Building; or (iv) if such assignment or
subletting is to an existing tenant or occupant of the Building; or (v) if
there is a vacancy in the Building, if the terms and conditions of the
assignment or subletting are less favorable than those conditions on which
Landlord is then offering to lease such vacant space for a comparable term
(or, if Landlord is not then offering space in the Building for lease,
those terms and conditions which, in Landlord's reasonable opinion,
Landlord would offer to lease space in the Building).
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease, Landlord
agrees to keep in good order, condition and repair the roof, public areas
(including loading dock areas, exterior landscaping and parking areas on
the Land Parcel), exterior walls (including exterior glass) and structure
of the Building and Building systems (including, without limitation,
mechanical, electrical, plumbing, fire, life safety and security systems
installed by Landlord or in place as of the Commencement Date, but
excluding any systems installed specifically for Tenant's benefit), all
insofar as they affect the Premises, except that Landlord shall in no
event be responsible to Tenant for the condition of glass in the Premises
or for the doors (or related glass and finish work) leading to the
Premises, or for any condition in the Premises or the Building caused by
any act or neglect of Tenant, its agents, employees, invitees or
contractors. The fact that Landlord is responsible for the foregoing
described repairs shall not be construed to prohibit the costs thereof
from being included in Operating Expenses. Except to the extent required
to be performed by Tenant pursuant to Section 7.2 below, Landlord shall
maintain the Property in compliance with all Requirements. Landlord shall
not be responsible to make any improvements or repairs to the Building
other than as expressly in this Section 7.1 provided, unless expressly
provided otherwise in this Lease.
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(b) Landlord shall never be liable for any failure to make repairs which
Landlord has undertaken to make under the provisions of this Section 7.1
or elsewhere in this Lease; unless Tenant has given notice to Landlord of
the need to make such repairs, and Landlord has failed to commence to make
such repairs within a reasonable time after receipt of such notice, or
fails to proceed with reasonable diligence to complete such repairs.
(c) Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option be furnished from time
to time, in whole or in part, by employees of Landlord or by the Manager
of the Property or by one or more third persons.
7.2 TENANT'S AGREEMENT. (a) Tenant will keep neat and clean and maintain in
good order, condition and repair the Premises and every part thereof,
excepting only those repairs for which Landlord is responsible under the
terms of this Lease, reasonable wear and tear of the Premises, and damage
by fire or other casualty and as a consequence of the exercise of the
power of eminent domain, and Tenant shall surrender the Premises, at the
end of the Term, in such condition. Without limitation, Tenant shall
continually during the Term of this Lease maintain the Premises in
accordance with all laws, codes and ordinances from time to time in effect
and all directions, rules and regulations of the proper officers of
governmental agencies having jurisdiction, and of the applicable Board of
Fire Underwriters, and shall, at Tenant's own expense, obtain all permits,
licenses and the like required by applicable law. Notwithstanding the
foregoing or any of the other provisions of this Article VII, Tenant shall
be responsible for the cost of repairs which may be necessary by reason of
damage to the Property caused by any act or neglect of Tenant or its
agents, employees, contractors or invitees (including any damage by fire
or any other casualty arising therefrom).
Without limitation of the foregoing, Tenant shall not do or perform, and
shall not permit its agents, servants, employees, contractors or invitees
to do or perform any act or thing in or upon the Property which will
invalidate or be in conflict with the certificate of occupancy for the
Premises or the Building or violate any statute, law, rule, by-law or
ordinance of any governmental entity having jurisdiction over the Property
(the "REQUIREMENTS"). Tenant shall, at Tenant's sole cost and expenses,
take all action, including the making of any improvements or alterations
necessary to comply with all Requirements (including, but not limited to
the Americans With Disabilities Act of 1990 (the "ADA"), as modified and
supplemented from time to time) which shall, with respect to the Premises
or with respect to any abatement of nuisance, impose any violation, order
or duty upon Landlord or Tenant arising from, or in connection with the
Premises, Tenant's occupancy, use or manner of use of the Premises
(including, without limitation, any occupancy, use or manner of use that
constitutes a "place of public accommodation" under the ADA), or any
installations in the Premises, or required by reason of a breach of any of
Tenant's covenants or agreements under this Lease, whether or not such
Requirements shall now be in effect or hereafter enacted or issued, and
whether or not any work required shall be ordinary or extraordinary or
foreseen or unforeseen at the date
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hereof. Notwithstanding the preceding sentence, Tenant shall not be
obligated to perform any alterations necessary to comply with any
Requirements, unless compliance shall be required by reason of (i) any
cause or condition arising out of any alterations or installations in the
Premises (whether made by Tenant or by Landlord on behalf of Tenant), (ii)
Tenant's particular use, manner of use or occupancy of the Premises (as
opposed to mere use as executive, general and administrative offices),
(iii) any breach of any of Tenant's covenants or agreements under this
Lease, or (iv) any wrongful act or omission by Tenant or Tenant's agents,
servants, employees, contractors or invitees, or (v) Tenant's use or
manner of use or occupancy of the Premises as a "place of public
accommodation" within the meaning of the ADA.
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the same
with reasonable dispatch after such demand, Landlord may (but shall not be
required to do so) make or cause such repairs to be made (the provisions
of Section 14.18 being applicable to the costs thereof) and shall not be
responsible to Tenant for any loss or damage that may accrue to Tenant's
stock or business by reason thereof. Notwithstanding the foregoing,
Landlord may elect to take action hereunder immediately and without notice
to Tenant if Landlord reasonably believes an emergency to exist.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) 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.
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 of a type
or degree which would (i) cause damage to the Premises or the Building or
(ii) constitute a nuisance or annoyance for other tenants of the Building.
(b) 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 such 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.
7.4 BUILDING SERVICES. Subject to the terms and provisions of Exhibit C,
Landlord shall provide the Building Services described in same Exhibit C.
Tenant will pay to the Landlord a reasonable charge for any extra cleaning
of the Premises required because of the carelessness or indifference of
Tenant and for any Additional Services rendered at the request of Tenant.
If the cost of cleaning the Premises shall be increased due to the
installation in the Premises, at Tenant's request, of any unique or
special materials, finish or equipment, Tenant shall pay to Landlord an
amount equal to such increase in cost. All charges for additional services
shall be due and payable within ten (10) days of the date on which they
are billed.
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7.5 SIGNAGE. Landlord shall provide Tenant with building standard entryway
graphics and identity signage (i) on the main building directories in the
first and second floor lobbies and (ii) on the main entry to the Premises
(either on the door or on the wall immediately adjacent to the main entry
to the Premises, consistent with building standard practices).
7.6 EXERCISE ROOM. The exercise room on the first floor of the Building is
provided as an amenity for tenants of the Building and is for use only by
Tenant, its employees and the employees of other tenants in the Building.
The exercise room shall be open for use on weekdays only during the hours
posted. Access shall be provided through the use of a pass key which
Landlord shall make available only to eligible users of the exercise room.
Eligible users of the exercise room will receive a pass key only upon
submission to Landlord of a properly executed waiver of responsibility
(more fully described below). Tenant shall be responsible for ensuring
that all exercise room pass keys are returned to Landlord upon expiration
of the Lease. Landlord shall have no obligation to continue to operate the
exercise room, and may terminate such operation at any time without notice
to Tenant.
Landlord shall provide cleaning and janitorial services for the exercise
and locker rooms and shall maintain the equipment in accordance with the
manufacturer's specifications. Landlord shall not provide an attendant in
the exercise room, instruction in the use of equipment, nor shall Landlord
be responsible for screening of users to ascertain their health, physical
fitness or ability to use the equipment, and Tenant shall so advise any of
its employees prior to their use of the exercise room. Landlord shall post
rules and regulations in the exercise room but shall not be responsible
for their enforcement.
Tenant hereby waives any claim against Landlord for injury caused by its
use of the exercise room and equipment, and agrees to have executed by all
persons prior to making use of the exercise room such waivers of
responsibility as Landlord may require from time to time. Tenant
acknowledges that a properly executed waiver of responsibility in the form
promulgated by Landlord from time to time must be submitted to Landlord by
each eligible user of the exercise room prior to that user receiving a
pass key. Tenant agrees to indemnify and hold Landlord harmless from and
against any and all claims, loss, liability and expense (including
reasonable attorneys' fees) arising from injury to any persons gaining
access to the exercise room through Tenant resulting from such person's
use of the exercise room.
7.7 CAFETERIA. The cafeteria in the Building is operated by an independent
contractor unrelated to Landlord pursuant to an agreement with Landlord,
and is for use only by Tenant, its employees and invitees and the
employees and invitees of other tenants and occupants in the Building.
Landlord shall have no responsibility or liability to Tenant, its
employees or invitees arising from the operation of the cafeteria, and
Landlord makes no representation that the cafeteria will be in operation
throughout the Term of this Lease. The operator of the cafeteria from time
to time may modify the hours of operation, the menu or the method of
service.
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ARTICLE VIII
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this
Article, the term "TAX YEAR" shall mean each calendar year in which any
part of the Term of this Lease shall fall; and the term "Taxes" shall mean
real estate taxes and special or general betterment assessments assessed
with respect to the Property for any Tax Year.
(b) In the event that, for any reason, Taxes shall be greater during any
Tax Year than Base Taxes, Tenant shall pay to Landlord, as an Escalation
Charge, an amount equal to the excess of Taxes over Base Taxes, multiplied
by (ii) the Escalation Factor, such amount to be apportioned for any
fraction of a Tax Year in which the Commencement Date falls or the Term of
this Lease ends. Upon the written request of Tenant, Landlord shall
provide Tenant with copies of applicable tax bills in connection with each
respective request for payment of amounts payable by Tenant pursuant to
this Section 8.1(b) and in connection with adjustments of the estimated
monthly amounts payable by Tenant pursuant to Section 8.1(c) hereof.
(c) Estimated payments by Tenant on account of Taxes shall be made
monthly and at the time and in the fashion herein provided for the payment
of Basic Rent. The monthly amount so to be paid to Landlord shall be
sufficient to provide Landlord by the time real estate tax payments are
due a sum equal to Tenant's required payments, as reasonably estimated by
Landlord from time to time, on account of Taxes for the then current Tax
Year. Promptly after receipt by Landlord of bills for such Taxes, Landlord
shall advise Tenant of the amount thereof and the computation of Tenant's
payment on account thereof. Landlord shall not adjust the estimated
amounts required to be paid by Tenant more than two (2) times with respect
to any Tax Year and if requested by Tenant, Landlord shall provide Tenant
with copies of the applicable tax bills upon which such adjustments are
made. If estimated payments theretofore made by Tenant for the Tax Year
covered by such bills exceed the required payments on account thereof for
such Tax Year, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant on account of Taxes (or refund such
overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord); but if the required payments on account thereof
for such Tax Year are greater than estimated payments theretofore made on
account thereof for such Tax Year, Tenant shall make payment to Landlord
within 30 days after being so advised by Landlord. Landlord shall have the
same rights and remedies for the non-payment by Tenant of any payments due
on account of Taxes as Landlord has hereunder for the failure of Tenant to
pay Basic Rent.
8.2 ABATEMENT. If Landlord shall receive any tax refund or reimbursement of
Taxes or sum in lieu thereof with respect to any Tax Year [which is not
due to vacancies in the Building], then out of any balance remaining
thereof after deducting Landlord's expenses
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reasonably incurred in obtaining such refund, Landlord shall pay to
Tenant, provided there does not then exist a Default of Tenant, an amount
equal to such refund or reimbursement or sum in lieu thereof (exclusive of
any interest) multiplied by the Escalation Factor; provided, that in no
event shall Tenant be entitled to receive more than the payments made by
Tenant on account of real estate tax increases for such Year pursuant to
paragraph (b) of Section 8.1 or to receive any payments or abatement of
Basic Rent if Taxes for any Year are less than Base Taxes or Base Taxes
are abated.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall replace the
current method of assessment of real estate taxes in whole or in part, or
the type thereof, or if additional types of taxes are imposed upon the
Property or Landlord relating to the Property, Tenant agrees that Tenant
shall pay a proportionate share of the same as an additional charge
computed in a fashion consistent with the method of computation herein
provided; to the end that Tenant's share thereof shall be, to the maximum
extent practicable, comparable to that which Tenant would bear under the
foregoing provisions.
(b) If a tax (other than Federal or State net income tax) is assessed on
account of the rents or other charges payable by Tenant to Landlord under
this Lease, Tenant agrees to pay the same as an additional charge within
ten (10) days after billing therefor, unless applicable law prohibits the
payment of such tax by Tenant.
ARTICLE IX
OPERATING EXPENSES
9.1 DEFINITIONS. For the purposes of this Article, the following terms shall
have the following respective meanings:
(i) OPERATING YEAR: Each calendar year in which any part of the Term of
this Lease shall fall.
(ii) OPERATING EXPENSES: The aggregate costs or expenses incurred by
Landlord with respect to the operation, administration, cleaning, repair,
maintenance and management of the Property including, without limitation
those matters set forth in Exhibit D annexed hereto, provided that, if
during any portion of the Operating Year for which Operating Expenses are
being computed, less than all of Building Rentable Area was occupied by
tenants or if Landlord is not supplying all tenants with the services
being supplied hereunder, actual Operating Expenses incurred shall be
reasonably extrapolated by Landlord on an item by item basis to the
estimated Operating Expenses that would have been incurred if the Building
were fully occupied for such Operating Year and such services were being
supplied to all tenants, and such extrapolated amount shall, for the
purposes hereof, be deemed to be the Operating Expenses for such Operating
Year.
9.2 TENANT'S PAYMENTS. (a) In the event that for any Operating Year Operating
Expenses shall exceed Base Operating Expenses, Tenant shall pay to
Landlord, as an
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Escalation Charge, an amount equal to (i) such excess Operating Expenses
multiplied by (ii) the Escalation Factor, such amount to be apportioned
for any partial Operating Year in which the Commencement Date falls or the
Term of this Lease ends.
(b) Estimated payments by Tenant on account of Operating Expenses shall
be made monthly and at the time and in the fashion herein provided for the
payment of Basic Rent. The monthly amount so to be paid to Landlord shall
be sufficient to provide Landlord by the end of each Operating Year a sum
equal to Tenant's required payments, as reasonably estimated by Landlord
from time to time during each Operating Year, on account of Operating
Expenses for such Operating Year. After the end of each Operating Year,
Landlord shall submit to Tenant a reasonably detailed accounting of
Operating Expenses for such Operating Year, and Landlord shall certify to
the accuracy thereof. If estimated payments theretofore made for such
Operating Year by Tenant exceed Tenant's required payment on account
thereof for such Operating Year, according to such statement, Landlord
shall credit the amount of overpayment against subsequent obligations of
Tenant with respect to Operating Expenses (or refund such overpayment if
the Term of this Lease has ended and Tenant has no further obligation to
Landlord), but, if the required payments on account thereof for such
Operating Year are greater than the estimated payments (if any)
theretofore made on account thereof for such Operating Year, Tenant shall
make payment to Landlord within thirty (30) days after being so advised by
Landlord. Landlord shall have the same rights and remedies for the
nonpayment by Tenant of any payments due on account of Operating Expenses
as Landlord has hereunder for the failure of Tenant to pay Basic Rent.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to defend, indemnify and save
harmless Landlord from and against all claims, loss, liability, costs and
damages of whatever nature arising from any default by Tenant under this
Lease and the following: (i) from any accident, injury, death or damage
whatsoever to any person, or to the property of any person, occurring in
or about the Premises after the Commencement Date; (ii) from any accident,
injury, death or damage occurring outside of the Premises but on the
Property, where such accident, damage or injury results or is claimed to
have resulted from the negligence or willful misconduct on the part of
Tenant or Tenant's agents, employees, invitees or independent contractors;
or (iii) in connection with the conduct or management of the Premises or
of any business therein, or any thing or work whatsoever done, or any
condition created (other than by Landlord) in or about the Premises; and,
in any case, occurring after the date of this Lease, until the end of the
Term of this Lease, and thereafter so long as Tenant is in occupancy of
the Premises. This indemnity and hold harmless agreement shall include
indemnity against all costs, expenses and liabilities incurred in, or in
connection with, any such claim or proceeding brought thereon, and the
defense thereof, including, without limitation, reasonable attorneys' fees
and costs at both
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the trial and appellate levels. Nothing contained in this Section 10.1
shall be deemed or construed to exculpate Landlord from its own
negligence. The provisions of this Section 10.1 shall survive the
expiration or any earlier termination of this Lease.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force from
the date upon which Tenant first enters the Premises for any reason,
throughout the Term of this Lease, and thereafter so long as Tenant is in
occupancy of any part of the Premises, a policy of general liability and
property damage insurance (including broad form contractual liability,
independent contractor's hazard and completed operations coverage) under
which Landlord, Manager (and such other persons as are in privity of
estate with Landlord as may be set out in notice from Landlord to Tenant
from time to time) are named as additional insureds. Tenant's Insurance
shall include coverage for the contractual liability of Tenant to
indemnify Landlord pursuant to Section 10.1 above. In addition, Tenant
shall maintain throughout the Term of this Lease so-called umbrella
coverage covering its operations in the Premises (and other locations
where Tenant does business) sufficient that all layers of coverage
available to Tenant shall aggregate not less than Ten Million and No/
100ths ($10,000,000.00) Dollars. Each such policy shall be non cancelable
and non-amendable with respect to Landlord, Manager and Landlord's said
designees without twenty (20) days' prior notice to Landlord and shall be
in at least the amounts of the Initial Public Liability Insurance
specified in Section 1.3 or such greater amounts as Landlord shall from
time to time reasonably request, and a duplicate original or certificate
thereof shall be delivered to Landlord.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made effective
according to law, Tenant agrees to use and occupy the Premises and to use
such other portions of the Property as Tenant is herein given the right to
use at Tenant's own risk. Neither Landlord nor Manager shall have any
responsibility or liability for any loss of or damage to Tenant's
Removable Property or for any inconvenience, annoyance, interruption or
injury to business arising from Landlord or Manager making any repairs or
changes which Landlord is permitted by this Lease or required by law to
make in or to any portion of the Premises or other sections of the
Property, or in or to the fixtures, equipment or appurtenances thereof.
Tenant shall carry "all-risk" property insurance on a "replacement cost"
basis (including so-called improvements and betterments), and provide a
waiver of subrogation as required in Section 14.20. The provisions of this
Section 10.3 shall be applicable from and after the execution of this
Lease and until the end of the Term of this Lease, and during such further
period as Tenant may use or be in occupancy of any part of the Premises or
of the Building. The provisions of this Section 10.3 shall survive any
expiration or earlier termination of the Term of this Lease.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement may
be made effective according to law, Tenant agrees that neither Landlord
nor Manager shall 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 persons occupying adjoining
premises or any part of the premises adjacent to or
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connecting with the Premises or any part of the Property, or otherwise.
The provisions of this Section 10.4 shall survive the expiration or any
earlier termination of this Lease.
10.5 LANDLORD'S INSURANCE. Landlord shall maintain and keep in effect
throughout the term of this Lease (a) insurance against loss or damage to
the Building by fire or other casualty as may be included within either
fire and extended coverage insurance or "all-risk" insurance in an amount
equal to the full replacement cost of the Building (exclusive of
foundations) and (b) commercial general liability insurance in amounts
reasonably determined by Landlord. Such coverage may be effected directly
and/or through the use of blanket insurance coverage covering more than
one location and may contain such deductibles as Landlord may elect.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. In addition to any other rights provided for herein,
Landlord reserves the following rights, exercisable without liability to
Tenant for damage or injury to property, person or business and without
effecting an eviction, constructive or actual, or disturbance of Tenant's
use or possession or giving rise to any claim:
(1) To name the Building and to change the name or street
address of the Building;
(2) To install and maintain all signs on the exterior and
interior of the Building (but not within the interior of the Premises);
(3) To designate all sources furnishing sign painting or
lettering for use in the Building (but not within the interior of the
Premises);
(4) During the last ninety (90) days of the Term, if Tenant
has vacated the Premises, to decorate, remodel, repair, alter or otherwise
prepare the Premises for occupancy without affecting Tenant's obligation
to pay rent for the Premises;
(5) To have pass keys to the Premises and all doors therein,
excluding Tenant's vaults and safes;
(6) Upon reasonable advance oral or written notice to
Tenant, except in the case of emergency, where no notice shall be
required, to enter the Premises accompanied by a representative of Tenant
(except that no representative of Tenant shall be required in case of
emergency) at all reasonable hours for the purpose of inspecting or making
repairs to the same, and Landlord shall also have the right to make access
available at all reasonable hours to prospective or existing mortgagees,
purchasers or tenants of any part of the Property. In exercising its
rights pursuant to this subsection,
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Landlord shall use good faith efforts to avoid unreasonable interference
with Tenant's use of the Premises as set forth in subsection (7) below.
(7) To take any and all measures in accordance with the
terms of subsection (6) above, including entering the Premises for the
purpose of making inspections, repairs, alterations, additions and
improvements to the Premises or to the Building (including for the purpose
of checking, calibrating, adjusting and balancing controls and other parts
of the Building systems), as may be necessary or desirable for the
operation, improvement, safety, protection or preservation of the Premises
or the Building, or in order to comply with all laws, orders and
requirements of governmental or other authority, or as may otherwise be
permitted or required by this Lease; provided, however, that during the
progress of any work on the Premises or at the Building, Landlord will
attempt not to inconvenience Tenant, but shall not be liable for
inconvenience, annoyance, disturbance, loss of business, or other damage
to Tenant by reason of performing any work or by bringing or storing
materials, supplies, tools or equipment in the Building or Premises during
the performance of any work, and the obligations of Tenant under this
Lease shall not thereby be affected in any manner whatsoever;
(8) To relocate various facilities within the Building and
on the land of which the Building is part if Landlord shall determine such
relocation to be in the best interest of the development of the Building
and Property, provided that such relocation shall not materially restrict
access to the Premises; and
(9) To install vending machines of all kinds in the Building
and to receive all of the revenue derived therefrom, provided, however,
than no vending machines shall be installed by Landlord in the Premises
unless Tenant so requests.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or casualty,
Basic Rent and Escalation Charges payable by Tenant shall xxxxx
proportionately for the period in which, by reason of such damage, there
is substantial interference with Tenant's use of the Premises, having
regard to the extent to which Tenant may be required to discontinue
Tenant's use of all or a portion of the Premises, but such abatement or
reduction shall end if and when Landlord shall have substantially restored
the Premises (excluding any alterations, additions or improvements made by
Tenant pursuant to Section 5.2) to the condition in which they were prior
to such damage. If the Premises shall be affected by any exercise of the
power of eminent domain, Basic Rent and Escalation Charges 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. In no
event shall Landlord have any liability for damages to Tenant for
inconvenience, annoyance, or interruption of business arising from such
fire, casualty or eminent domain.
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12.2 RIGHT OF TERMINATION. If (a) the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially
damaged" meaning damage of such a character that the same cannot, in the
ordinary course, reasonably be expected to be repaired within one hundred
twenty (120) days from the time the repair work would commence), or (b)
any mortgagee then holding a mortgage on the Property or any interest of
Landlord therein, should require that insurance proceeds payable as a
result of a fire, casualty or action by taking authority be applied to the
mortgage debt or (c) if any part of the Building is taken by any exercise
of the right of eminent domain, then, in the case of (a), (b), or (c)
above, Landlord shall have the right to terminate this Lease (even if
Landlord's entire interest in the Premises may have been divested) by
giving notice of Landlord's election so to do within sixty (60) days after
the occurrence of such casualty or the effective date of such taking,
whereupon this Lease shall terminate thirty (30) days after the date of
such notice with the same force and effect as if such date were the date
originally established as the expiration date hereof.
12.3 RESTORATION: TENANT'S RIGHT OF TERMINATION. If the Premises is damaged by
fire or casualty or as a result of a taking and if this Lease shall not be
terminated pursuant to Section 12.2, Landlord shall thereafter use due
diligence to restore the Premises to substantially its conditions prior to
such fire or casualty, (exclusive of any alterations, additions, or
improvements made by Tenant). If Landlord is then carrying insurance to
the extent required under Section 10.5 of this Lease, Landlord's
obligation to restore shall be limited to the amount of insurance proceeds
actually made available to the Landlord for the purpose of restoration
plus any deductible amount carried by Landlord, or the condemnation awards
actually made available to Landlord therefor and provided, further, that
Landlord shall have no obligation to restore the Premises or the Building
as and to the extent the same cannot be lawfully restored under then
applicable zoning and building laws. If, for any reason, restoration of
the Premises to the condition required hereby shall not be substantially
completed as aforesaid within 270 days after the expiration of the sixty
(60) day period referred to in Section 12.2 (which 270 day period may be
extended for such periods of time as Landlord is prevented from proceeding
with or completing such restoration for any cause beyond Landlord's
reasonable control, plus the period of any delay caused by Tenant), Tenant
shall have the right to terminate this Lease by giving notice to Landlord
thereof within (30) days after the expiration of such period (as so
extended). Landlord agrees to give notice to Tenant prior to claiming any
extension of time under the preceding sentence. Upon the giving of such
notice, this Lease shall (effective as of a date set forth in such notice
which date shall not be sooner than 30 nor later than 60 days after the
giving of such notice) cease and come to an end without further liability
or obligation on the part of either party unless, within such 30-day
period, Landlord substantially completes such restoration. Such right of
termination shall be Tenant's sole and exclusive remedy at law or in
equity for Landlord's failure to complete such restoration.
Landlord shall not be liable for any inconvenience or annoyance to Tenant
or injury to the business of Tenant resulting in any way from damage from
fire or other casualty or the
23
repair thereof, but Tenant shall be entitled to an abatement of Basic Rent
and Escalation Charges as and to the extent expressly provided in this
Lease. Tenant understands that Landlord will not carry insurance of any
kind on improvements or alterations made by Tenant or on furniture or
furnishings or on any fixtures or equipment removable by Tenant under the
provisions of the Lease, and that Landlord shall not be obligated to
repair any damage thereto or replace the same. If Tenant desires any other
or additional repairs for restoration and if Landlord consents thereto,
the same shall be done at Tenant's expense. Tenant acknowledges that
Landlord shall be entitled to the full proceeds of any insurance coverage,
carried by Landlord, for damage to the premises and any alterations
therein.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages
to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, and by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and assign
to Landlord, all rights to such damages or compensation. Nothing contained
herein shall be construed to prevent Tenant from, at its sole cost and
expense, prosecuting a separate condemnation proceeding with respect to a
claim for the value of any of Tenant's Removable Property installed in the
Premises by Tenant at Tenant's expense and for relocation expenses,
provided that such action shall not affect the amount of compensation
otherwise recoverable by Landlord from the taking authority.
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this Lease
any one or more of the following events (herein referred to as a
"DEFAULT") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Tenant's Electrical
Charge, Escalation Charges or other sums payable as additional charges
hereunder and such failure shall continue for five (5) days after written
notice from Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or observed, or
Tenant shall desert or abandon the Premises (regardless whether the keys
shall have been surrendered or the rent and all other sums due shall have
been paid), and Tenant shall fail to remedy the same within twenty (20)
days after notice to Tenant specifying such neglect or failure, or if such
failure is of such a nature that Tenant cannot reasonably remedy the same
within such twenty (20) day period, Tenant shall fail to commence promptly
to remedy the same and to prosecute such remedy to completion with
diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
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(iv) Tenant shall make an assignment for the benefit of creditors
or shall file a voluntary petition in bankruptcy or shall be adjudicated
bankrupt or insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future
Federal, State or other statute, law or regulation for the relief of
debtors, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or of all or any substantial
part of its properties, or shall admit in writing its inability to pay its
debts generally as they become due; or
(v) A petition shall be filed against Tenant in bankruptcy or
under any other law seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any
present or future Federal, State or other statute, law or regulation and
shall remain undismissed or unstayed for an aggregate of sixty (60) days
(whether or not consecutive), or if any debtor in possession (whether or
not Tenant) trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties or of the Premises shall be appointed
without the consent or acquiescence of Tenant and such appointment shall
remain unvacated or unstayed for, an aggregate of sixty (60) days (whether
or not consecutive); or
(vi) If a Default of the kind set forth in clauses (i) or (ii)
above shall occur and if either (a) Tenant shall cure such Default within
the applicable grace period, if any, or (b) Landlord shall, in its sole
discretion, permit Tenant to cure such Default after the applicable grace
period has expired, and an event which would constitute a similar Default
if not cured within the applicable grace period shall occur more than once
within the next 365 days, whether or not such event is cured within the
applicable grace period; then in any such case (1) if such Default shall
occur prior to the Commencement Date, this Lease shall ipso facto, and
without further act on the part of Landlord, terminate, and (2) if such
Default shall occur after the Commencement Date, Landlord may terminate
this Lease by notice to Tenant, and thereupon this Lease shall come to an
end as fully and completely as if such date, were the date herein
originally fixed for the expiration of the Term of this Lease (Tenant
hereby waiving any rights of redemption) and Tenant will then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
(b) If this Lease shall be terminated as provided in this Article, or if
any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may, without notice, re-enter the
Premises, either by force, summary proceedings, ejectment or otherwise,
and remove and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end.
(c) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of such
termination, and
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thereafter Tenant, until the end of what would have been the Term of this
Lease in the absence of such termination, and whether or not the Premises
shall have been relet, shall be liable to Landlord for, and shall pay to
Landlord, as liquidated current damages, the Basic Rent, Escalation
Charges and other sums which would be payable hereunder if such
termination had not occurred, less the net proceeds, if any, of any
reletting of the Premises, after deducting all expenses in connection with
such reletting, including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees, advertising,
expenses of employees, alteration costs and expenses of preparation for
such reletting Tenant shall pay such current damages to Landlord monthly
on the days which the Basic Rent would have been payable hereunder if this
Lease had not been terminated.
(d) At any time after such termination, whether or not Landlord shall
have collected any such current damages, as liquidated final damages and
in lieu of all such current damages beyond the date of such demand, at
Landlord's election, Tenant shall pay to Landlord an amount equal to the
excess, if any, of the Basic Rent, Escalation Charges and other sums as
hereinbefore provided which would be payable hereunder from the date of
such demand (assuming that, for the purposes of this paragraph, annual
payments by Tenant on account of Taxes and Operating Expenses would be the
same as the payments required for the immediately preceding Operating Year
or Tax Year) for what would be the then unexpired Term of this Lease if
the same had remained in effect, over the then fair net rental value of
the Premises for the same period.
(e) In the case of any Default, re-entry, expiration and dispossession
by summary proceeding or otherwise, Landlord may (i) relet the Premises or
any part or parts thereof, either in the name of Landlord or otherwise,
for a term or terms which may at Landlord's option be equal to or less
than or exceed the period which would otherwise have constituted the
balance of the Term of this Lease and may grant concessions or free rent
to the extent that Landlord considers advisable and reasonably necessary
to re-let the same and (ii) may make such reasonable alterations, repairs
and decorations in the Premises as Landlord in its sole judgment considers
advisable and necessary for the purpose of reletting the Premises; and the
making of such alterations, repairs and decorations shall not operate or
be construed to release Tenant from liability hereunder as aforesaid.
Landlord shall use commercially reasonable efforts to relet the Premises.
Marketing of the Premises in a manner similar to the manner in which
Landlord markets other premises in the Building shall be deemed to have
satisfied Landlord's obligation to use "commercially reasonable efforts."
In no event shall Landlord be required to (I) solicit or entertain
negotiations with any other prospective tenants for the Premises until
Landlord obtains full and complete possession of the Premises, including,
without limitation, the final and unappealable legal right to re-let the
Premises free of any claim of tenant, (ii) give preference to reletting
the Premises over leasing other vacant space in the Building, or (iii)
lease the Premises, if in Landlord's bona fide business judgment, the
proposed rent is less than the then current market rental value of the
Premises.
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Landlord shall in no event be liable in any way whatsoever for failure to
re-let the Premises, or, in the event that the Premises are re-let, for
failure to collect the rent under such re-letting. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed, or in
the event of Landlord obtaining possession of the Premises, by reason of
the violation by Tenant of any of the covenants and conditions of this
Lease.
(f) If a Guarantor of this Lease is named in Section 1.2, the happening
of any of the events described in paragraphs (a)(iv) or (a)(v) of this
Section 13.1 with respect to the Guarantor shall constitute a Default of
Tenant hereunder.
(g) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled to lawfully, and Landlord may invoke
any remedy (including the remedy of specific performance) allowed at law
or in equity as if specific remedies were not herein provided for. All
costs and expenses incurred by or on behalf of Landlord (including,
without limitation, attorneys' fees and expenses) in enforcing its rights
hereunder and/or occasioned by any Default of Tenant shall be paid by
Tenant.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default of the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have unreasonably failed to perform such obligation within
a period of time reasonably required to correct any such default, after
notice by Tenant to Landlord specifying wherein Landlord has failed to
perform any such obligations.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do
or permit anything to be done in or upon the Premises or in or upon the
Property, or bring in anything or keep anything therein, which shall
increase the rate of property or liability insurance on the Premises or on
the Property above the standard rate applicable to premises being occupied
for Permitted Uses; 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 an additional charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long the same
may continue, shall never be a waiver by Tenant or Landlord, respectively,
of any of the other's rights hereunder. Further, no waiver at any time of
any of the provisions hereof by Landlord or Tenant 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
27
subsequent time of the same provisions. The consent or approval of
Landlord or Tenant to or of any action by the other requiring such consent
or approval shall not be construed to waive or render unnecessary
Landlord's or Tenant's consent or approval to or of any subsequent similar
act by the other.
(b) 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 of the earliest installment of any payment due
from Tenant under the provisions hereof. 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 Landlord may accept such
check without prejudice to any other, rights or remedies which Landlord
may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT. Subject to the terms and provisions of this
Lease, on payment of the Basic Rent and Escalation Charges and observing,
keeping and performing all of the other terms and provisions of this Lease
on Tenant's part to be observed, kept and performed, Tenant 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
Tenant. The foregoing covenant of quiet enjoyment is in lieu of any other
covenant, express or implied.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically agreed that
Landlord (original or successor) shall never be personally liable for any
such judgment, or for the payment of any monetary obligation to Tenant.
The foregoing sentence is not intended to, and shall not, limit any right
that Tenant may otherwise have to obtain injunctive relief against
Landlord or any successor of Landlord, or to take any action not involving
the personal liability of Landlord or any successor of Landlord to respond
in monetary damages from Landlord's assets other than Landlord's equity
interest in the Property.
(b) With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to
furnish the same when prevented from doing so by Force Majeure, 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 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 servants, agents, employees,
licensees or any person claiming by, through or under Tenant; nor shall
any such failure give rise to any claim in Tenant's favor that Tenant has
been evicted, either constructively or actually, partially or wholly.
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(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by Tenant
from whatever cause.
(d) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same may be made during normal
business hours and Landlord shall have no liability for damages to Tenant
for inconvenience, annoyance of interruption of business arising
therefrom. In exercising its rights hereunder, Landlord shall use good
faith efforts to avoid unreasonable interference with Tenant's use of the
Premises.
(e) In no event shall Landlord be liable for any breach of any term,
condition or covenant during the Term unless the same shall occur during
and within the period of time that it is the owner of and in possession of
the Building. In no event and under no circumstances shall Landlord be
liable to Tenant for any consequential or special damages in connection
with any act of Landlord, its agents, employees, invitees or independent
contractors, or otherwise.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving written notice from
any person, firm or other entity that it holds a mortgage or a ground
lease which includes the Premises, no notice from Tenant to Landlord
alleging any default by Landlord shall be effective unless and until a
copy of the same is given to such holder or ground lessor (provided Tenant
shall have been furnished with the name and address of 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.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) 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 on property which includes the Premises,
Tenant agrees that the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage, shall never be treated as an
assumption by such holder of any of the obligations of Landlord hereunder
unless such holder shall, by notice sent to Tenant, specifically otherwise
elect and that, except as aforesaid, such holder shall be treated as
having assumed Landlord's obligations hereunder only upon (i) foreclosure
of such holder's mortgage (but only if such holder shall purchase such
property at foreclosure), or (ii) the entry and taking of possession of
the Property by such holder (but only as to matters which shall accrue or
arise during the period of possession by such holder).
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases Landlord's
entire interest in the Property 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 purchaser. For all purposes, such
seller-lessee, and its successors in title,
29
shall be the Landlord hereunder unless and until Landlord's position shall
have been assumed by such purchaser lessor.
(c) Except as provided in paragraph (b) of this Section, in the event of
any transfer of title to the Property by Landlord, Landlord shall
thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder which are to be
performed or observed from and after the date of such transfer.
14.7 RULES AND REGULATIONS. Tenant shall abide by rules and regulations from
time to time established by Landlord, it being agreed that such rules and
regulations will be established and applied by Landlord in a
non-discriminatory fashion, such that all rules and regulations shall be
generally applicable to other tenants of the Building of similar nature to
the Tenant named herein. Landlord agrees to use reasonable efforts to
insure that any such rules and regulations are uniformly enforced, but
Landlord shall not be liable to Tenant for violation of the same by any
other tenant or occupant of the Building, or persons having business with
them. In the event that there shall be any conflict between such rules and
regulations and the provisions of this Lease, the provisions of this Lease
shall control. The rules and regulations shall not be amended or modified
in any manner adversely affecting Tenant's ability to use and occupy the
Premises for the Permitted Use.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay within fifteen (15) days
of an invoice or notice from Landlord any sums under this Lease designated
or payable as an additional charge, Landlord shall have the same rights
and remedies as Landlord has hereunder for failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
14.10 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. Each term and each provision of
this Lease to be performed by Tenant shall be construed to be both a
covenant and a condition. 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 Article VI hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but each party hereto
agrees, on the request of the other, to execute a so-called notice of
lease in form recordable and
30
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.
14.12 NOTICES. Whenever, by the terms of this Lease, notices, consents or
approvals shall or may by given either to Landlord or to Tenant, such
notices, consents or approvals shall be in writing and shall be sent by
(i) registered or certified mail, return receipt requested, postage and
handling prepaid or (ii) reputable overnight courier with evidence of
receipt, postage and handling prepaid or (iii) by hand delivery with
acknowledgement of receipt:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address with a copy addressed to Xxxxxxxxx Xxxxxxxxxx & Xxxx LLP,
Prudential Tower, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 Attn: Xxxxxx X.
Xxxxxxx, Esq. (or to such other address or addresses within the
continental United States as may from time to time hereafter by designated
by Landlord by like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original Address
until the Commencement Date and thereafter to the Premises (or to such
other address or addresses within the continental United States as may
from time to time hereafter be designated by Tenant by like notice.)
All such notices shall be effective upon receipt thereof by the Addressee
provided that the same are received in ordinary course at the address to
which the same were sent. Provided further however that rejection or
refusal to accept or inability to deliver because of change of address
(without proper notice of such change of notice address as required
hereunder) shall be deemed receipt of the notice sent as of the first day
of refusal or rejection or the first date of attempted delivery to the
address specified herein in the case of a change of notice address without
proper notice of such change of address as aforesaid.
14.13 WHEN LEASE BECOMES BINDING. 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 this Lease expressly supersedes any proposals or
other written documents relating hereto. This Lease 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 shall alter, change or
modify any of the provisions hereof.
14.14 PARAGRAPH HEADINGS. The 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.
31
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate to
any mortgage or ground lease from time to time encumbering the Premises,
whether executed and delivered prior to or subsequent to the date of this
Lease, if the holder of such mortgage or ground lease shall so elect. If
this Lease is subordinate to any mortgage or ground lease and the holder
thereof (or successor) shall succeed to the interest of Landlord, at the
election of such holder (or successor) Tenant shall attorn to such holder
and this Lease shall continue in full force and effect between such holder
(or successor) and Tenant. Tenant agrees to execute such instruments of
subordination or attornment in confirmation of the foregoing agreement as
such holder may request. Landlord agrees to use reasonable efforts to
obtain a so-called non-disturbance agreement from the current holder of
the financing encumbering the Property on such holder's standard form and
to obtain such an agreement from the holders of any subsequent financing
encumbering the Property.
14.16 STATUS REPORT. Recognizing that Landlord may find it necessary to
establish to third parties, such as accountants, banks, mortgagees, ground
lessors, or the like, the then current status of performance of Tenant or
Landlord hereunder, Tenant on the request of Landlord made from time to
time, will within ten (10) days of any such request promptly furnish to
Landlord, or the holder of any mortgage or ground lease encumbering the
Premises, or to any other third party designated by Landlord, as the case
may be, a statement of the status of any matter pertaining to this Lease,
including, without limitation, acknowledgment that (or the extent to
which) each party is in compliance with its obligations under the terms of
this Lease. Landlord, within ten (10) days after written request from
Tenant, shall furnish a similar statement to Tenant or any third party
designated by Tenant.
14.17 SECURITY DEPOSIT. Landlord shall hold the Security Deposit set forth in
Section 1.2 throughout the Term of this Lease (and beyond such expiration
as hereafter set forth) as security for the performance by Tenant of all
obligations on the part of Tenant hereunder. Landlord shall have the right
from time to time without prejudice to any other remedy Landlord may have
on account thereof, to apply such deposit, or any part thereof, to
Landlord's damages arising from, or to cure, any Default. If Landlord
shall so apply any or all of such deposit, Tenant shall immediately
deposit with Landlord the amount so applied to be held as security
hereunder. If there is no the existing default, Landlord shall return the
deposit, or so much thereof as shall theretofore not have been applied in
accordance with the terms of this Section 14.17, to Tenant on the date
which is 45 days after the last to occur of (i) expiration or earlier
termination of the Term of this Lease or (ii) surrender of possession of
the Premises by Tenant to Landlord in the condition referenced under this
Lease or (iii) satisfaction of all of Tenant's obligations to Landlord
under this Lease. While Landlord holds such deposit, Landlord shall have
no obligation to pay interest on the same and shall have the right to
commingle the same with Landlord's other funds. If Landlord conveys
Landlord's interest under this Lease, the deposit, or any part thereof not
previously applied, may be turned over by Landlord to Landlord's grantee,
and, if so turned over, Tenant agrees to look solely to such grantee for
proper application
32
of the deposit in accordance with the terms of this Section 14.17, and the
return thereof in accordance herewith. The holder of a mortgage shall not
be responsible to Tenant for the return or application of any such
deposit, whether or not it succeeds to the position of Landlord hereunder,
unless such deposit shall have been, received in hand by such holder.
Tenant shall deposit the Security Deposit with Landlord in the form of a
Letter of Credit issued by a bank approved by Landlord, in the amount of
the Security Deposit. Such Letter of Credit shall be in form and substance
satisfactory to Landlord. Without limiting the generality of the foregoing
sentence, such Letter of Credit shall name Landlord as its beneficiary,
permit a transfer of the Letter of Credit without payment in connection
with a transfer or collateral assignment of Landlord's interest in this
Lease, have a term of not less than one (1) year, and permit drawing in
whole or in part upon a Default by Tenant or in the event a substitute
Letter of Credit complying with this Section 14.17 has not been deposited
with Landlord not less than thirty (30) days prior to the expiration
thereof. In the event Landlord shall draw on the Letter of Credit in whole
or in part, the proceeds of such drawing shall be treated in the manner
provided in this Section 14.17.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
required, to pay such sums or to 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, together with
interest thereon at a rate equal to 3% over the prime rate in effect from
time to time at Citizens Bank of Massachusetts (but in no event greater
than 18% per annum) as an additional charge. Any payment of Basic Rent,
Escalation Charges or other sums payable hereunder not paid when due
shall, at the option of Landlord, bear interest at a rate equal to 3% over
the prime rate in effect from time to time at Citizen's Bank of
Massachusetts (but in no event greater than 18% per annum ) from the due
date thereof and shall be payable forthwith on demand by Landlord, as an
additional charge.
14.19 HOLDING OVER. Any holding over by Tenant after the expiration or earlier
termination of the Term of this Lease shall be treated as a daily tenancy
at sufferance at a rate equal to twice the then fair rental value of the
Premises but in no event less than twice the sum of (i) Basic Rent and
(ii) Escalation Charges in effect on the date immediately preceding such
expiration or earlier termination date. Tenant shall also pay to Landlord
all damages, direct and/or indirect (including any loss of a tenant or
rental income) sustained by reason of any such holding over. Otherwise,
such holding over shall be on the terms and conditions set forth in this
Lease as far as applicable (except there shall be no options to extend the
Term if any be contained in this Lease). If such holding over by Tenant
continues for sixty (60) days or more, the Landlord may, but shall not be
required to, and only on written notice to Tenant after the expiration of
the Term hereof, elect to treat such holding over as an extension of the
Term of this Lease for a period of up to one (1) year, as designated by
Landlord, such extension to be on the terms and conditions set forth in
this Section 14.19.
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14.20 WAIVER OF SUBROGATION. Landlord and Tenant mutually agree that any
property damage insurance carried by either shall provide for the waiver
by the insurance carrier of any right of subrogation against the other,
and they further mutually agree that, with respect to any damage to
property, the loss from which is covered by insurance then being carried
by them, respectively, or required to be carried under this Lease, the one
carrying such insurance and suffering such loss releases the other of and
from any and all claims with respect to such loss to the extent of the
insurance proceeds actually paid with respect thereto.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of the
Term of this Lease, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition and
repair, together with all alterations, additions and improvements which
may have been made or installed in, on or to the Premises prior to or
during the Term of this Lease, excepting only ordinary wear and use and
damage by fire, other casualty or as the result of eminent domain
proceedings for which, under other provisions of this Lease, Tenant has no
responsibility of repair and restoration. Tenant shall remove all of
Tenant's Removable Property and, to the extent specified by Landlord as a
condition to Landlord's consent to an alteration or addition, all
alterations and additions made by Tenant and all partitions wholly within
the Premises; and shall repair any damage to the Premises or the Building
caused by such removal. Any Tenant's Removable Property which shall remain
in the Building or on the Premises after the expiration or termination of
the Term of this Lease shall be deemed conclusively to have been
abandoned, and either may be retained by Landlord as its property or may
be disposed of in such manner as Landlord may see fit, at Tenant's sole
cost and expense.
14.22 APPROVALS. Tenant shall reimburse Landlord, as additional rent, promptly
on demand, and in all events within thirty (30) days of notice of demand
for all reasonable out-of-pocket expenses, including but not limited to
legal, engineering or other professional services or expenses incurred by
Landlord in connection with any request(s) by Tenant for consents or
approvals hereunder.
14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
broker in connection with the consummation of this Lease other than
Xxxxxxxx Xxxx Company and Xxxxxxx X. Xxxx of Equis Corporation (the
"BROKERS"), and in the event of any brokerage claims against Landlord
predicated upon prior dealings with Tenant, Tenant agrees to defend the
same and indemnify Manager and Landlord against any such claim (except any
claim by the Brokers which shall be paid by Landlord pursuant to its
separate arrangements with Xxxxxxxx Xxxx Company). Landlord warrants and
represents that Landlord has dealt with no broker in connection with the
consummation of this Lease other than the Brokers, and, in the event of
any brokerage claims against Tenant predicated upon prior dealings with
Landlord, Landlord agrees to defend the same and indemnify Tenant against
any such claim (including any claim by the Brokers).
14.24 SPECIAL TAXATION PROVISIONS. Landlord shall have the right at any time and
from time to time, to unilaterally amend the provisions of this Lease if
Landlord is
34
advised by its counsel that all or any portion of the monies paid by
Tenant to Landlord hereunder are, or may be deemed to be, unrelated
business income within the meaning of the United States Internal Revenue
Code, or regulation issued thereunder, and Tenant agrees that it will
execute all documents or instruments necessary to effect such amendment or
amendments, provided that no such amendment shall result in Tenant having
to pay in the aggregate more money on account of its occupancy of the
demised premises under the provisions of this Lease as so amended and
provided further, that no such amendment or amendments shall result in
Tenant receiving under the provisions of this Lease less services than it
is entitled to receive nor services of a lesser quality.
Anything contained in the foregoing provisions of this Lease (including,
without limitation, Article VI hereof) to the contrary notwithstanding,
neither Tenant nor any other person having an interest in the possession,
use, occupancy or utilization of the Premises shall enter into any lease,
sublease, license, concession or other agreement for use, occupancy or
utilization of space in the Premises which provides for rental or other
payment for such use, occupancy or utilization based, in whole or in part,
on the net income or profits derived by any person from the premises
leased, used, occupied or utilized (other than an amount based on a fixed
percentage or percentages of receipts or sales), and any other agreements
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part of
the Premises.
14.25 HAZARDOUS MATERIALS. Tenant shall not (either with or without negligence)
cause or permit the escape, disposal, release or threat of release of any
biologically or chemically active or other Hazardous Materials (as said
term is hereafter defined) on, in, upon or under the Property or the
Premises. Tenant shall not allow the generation, storage, use or disposal
of such Hazardous Materials in any manner prohibited by law, nor allow to
be brought into the Property any such Hazardous Materials except for use
in the ordinary course of Tenant's business, and then only after written
notice is given to Landlord of the identity of such Hazardous Materials.
HAZARDOUS MATERIALS shall include, without limitation, any material or
substance which is (i) petroleum, (ii) asbestos, (iii) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section
1321) or listed pursuant to Section 307 of the Federal Water Pollution
Control Act (33 U.S.C. Section 1317), (iv) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (v) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section
9601 et seq. (42 U.S.C. Section 9601), as amended, or (vi) defined as
"oil" or a "hazardous waste", a "hazardous substance", a "hazardous
material" or a "toxic material" under any other law, rule or regulation
applicable to the Property, including, without limitation, Chapter 21E of
the Massachusetts General Laws, as amended. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has
been any release of Hazardous Materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional
charges but only if such requirement applies to the Premises or may be the
result of the
35
acts or omissions of Tenant. In addition, Tenant shall execute affidavits,
representations and the like, from time to time, at Landlord's request
concerning Tenant's best knowledge and belief regarding the presence of
Hazardous Materials on the Premises. In all events, Tenant shall indemnify
and save Landlord harmless from any release or threat of release or the
presence or existence of Hazardous Materials on the Premises occurring
while Tenant is in possession, or elsewhere on the Property if caused by
Tenant or persons acting under Tenant. The covenants and indemnity set
forth in this Section 14.25 shall survive the expiration or earlier
termination of the Term of this Lease. Landlord expressly reserves the
right to enter the Premises to perform regular inspections and testing
with respect to the presence, existence, release or threat of release of
Hazardous Materials.
Landlord represents that to the best of its knowledge there are no
Hazardous Materials in reportable concentrations or quantities in, on or
under the Property.
14.26 FINANCIAL STATEMENTS. Within ten (10) days after Landlord has made a
written request, Tenant agrees to deliver to Landlord a complete financial
statement certified by an independent certified public accounting firm.
The requirement of the immediately preceding sentence is hereby waived so
long as Tenant's stock is publicly traded on a national stock exchange and
its financial filings are publicly available. Tenant agrees to maintain
accounting controls and books of account, in form adequate for auditing
purposes, in accordance with generally accepted accounting principles
consistently applied.
14.27 RELOCATION. Intentionally Omitted.
14.28 GOVERNING LAW. This Lease shall be governed exclusively by the provisions
hereof and by the laws of the Commonwealth of Massachusetts.
14.29 TIME OF THE ESSENCE. Landlord and Tenant each agree that time is of the
essence to each and every term and provision of this Lease.
14.30 AUTHORITY FOR EXECUTION. The person executing this Lease on behalf of
Tenant hereby covenants and warrants that he or she was duly authorized to
so execute this Lease and that this Lease is the valid and binding
obligation of Tenant.
14.31 OPTION TO EXTEND. Tenant shall have the right and option, which said
option and right shall not be severed from this Lease or separately
assigned, mortgaged or transferred, to extend the Initial Term for one (1)
additional period of five (5) years (hereinafter referred to as the
"EXTENSION PERIOD"), provided that (a) Tenant shall give Landlord notice
of Tenant's exercise of such option at least twelve (12) full calendar
months prior to the expiration of the Initial Term and (b) no Default
shall exist at the time of giving each applicable notice and the
commencement of the applicable Extension Period and (c) the original
Tenant, named herein is occupying the Premises both at the time of giving
the each applicable notice and at the time of commencement of each such
Extension Period. Except for the amount of Basic Rent (which is to be
determined as
36
hereinafter provided), all the terms, covenants, conditions, provisions
and agreements in the Lease contained shall be applicable to the
additional periods through which the Term of this Lease shall be extended
as aforesaid, except that there shall be no further options to extend the
Term nor shall Landlord be obligated to make or pay for any improvements
to the Premises nor pay any inducement payments of any kind or nature. If
Tenant shall give notice of its exercise of each such option to extend in
the manner and within the time period provided aforesaid, the Term of this
Lease shall be extended upon the giving of each such notice without the
requirement of any further documentation on the part of either Landlord or
Tenant except that the parties agree to execute an amendment to this Lease
reflecting such extension promptly after the Basic Rent has been
determined.
If Tenant shall fail to give timely notice of the exercise of any such
option as aforesaid, Tenant shall have no right to extend the Term of this
Lease, time being of the essence of the foregoing provisions.
The Basic Rent payable for the Extension Period shall be the greater of
(a) the Basic Rent for the last year of the Initial Term, or (b) the Fair
Market Rental Value (as said term is hereinafter defined) as of
commencement of the Extension Period. "FAIR MARKET RENTAL VALUE" shall be
computed in each instance as of the beginning of the Extension Period at
the then current annual rental charges, including provisions for
subsequent increases and other adjustments, for extensions of existing
leases then currently being negotiated or executed in comparable space
located in the Building. If no new leases are then currently being
negotiated or executed in the Building, Fair Market Rental Value shall be
determined by reference to new leases then currently being negotiated or
executed for comparable space located in comparable buildings in the
Suburban Boston office market. In determining Fair Market Rental Value,
the following factors, among others, shall be taken into account and given
effect: size of the premises, escalation charges then payable under the
Lease, location of the premises, location of the building, allowances or
lack of allowances (if any) lease term, appurtenant rights, condition of
Premises and any other rights or concessions being granted under such
leases. In no event shall the Basic Rent payable with respect to any Lease
Year during the Extension Period be less than the Basic Rent payable
during the last Lease Year of the Initial Term. When the Fair Market
Rental Value has been determined, each party shall at the request of the
other, execute a certificate confirming the Fair Market Rental Value as it
is determined in accordance with the provisions of this Section 14.31.
Dispute as to Fair Market Value. Landlord shall initially designate the
Fair Market Rental Value and shall furnish data in support of such
designation within thirty (30) days of receipt of Tenant's notice to
extend the Term. If Tenant disagrees with Landlord's designation of the
Fair Market Rental Value, Tenant shall have the right, by written notice
given to Landlord within thirty (30) days after Tenant has been notified
of Landlord's designation, to submit such Fair Market Rental Value to
arbitration as follows: If Tenant disagrees with Landlord's designation of
the Fair Market Rental Value, Tenant shall by notice given to Landlord
within thirty (30) days after Tenant has been notified of Landlord's
designation, submit such Fair Market Rental Value to arbitration and name
37
Tenant's proposed arbitrator. Within fifteen (15) days after receiving a
notice of initiation of arbitration, Landlord shall appoint its own
arbitrator by notifying Tenant of its arbitrator. If the second arbitrator
shall not have been so appointed within such fifteen (15) day period, the
Fair Market Rental Value of the Premises shall be determined by Tenant's
arbitrator. If the second arbitrator shall have been so appointed, the two
arbitrators thus appointed shall make their own determination of Fair
Market Rental Value and meet and confer in an effort to reconcile their
respective determinations. If, within thirty (30) days after the
appointment of the second arbitrator, the two arbitrators have not reached
agreement, the two arbitrators shall, within ten (10) days after the
expiration of such thirty (30) day period, appoint a third arbitrator. If
the two initial arbitrators are unable timely to agree on the third
arbitrator, then either may, on behalf of both, request such appointment
by the Greater Boston Real Estate Board, or its successor, or, on its
failure, refusal or inability to act, by a court of competent
jurisdiction. The third arbitrator shall conduct its own independent
investigation of the applicable Fair Market Rental Value, and shall be
instructed not to advise either party of its determination, except as
follows: when the third arbitrator has made its determination (which shall
be completed within fifteen (15) days after the appointment of the third
arbitrator), it shall advise Landlord and Tenant and establish a date, at
least five (5) days after the giving of notice by such third arbitrator to
Landlord and Tenant, on which it will disclose its determination. Such
meeting shall take place in Landlord's office unless otherwise mutually
agreed by the parties. The third arbitrator shall place its determination
in a sealed envelope. Landlord's arbitrator and Tenant's arbitrator shall
each set forth their determination (each stated in a single "per rentable
square foot per annum (or month)" figure) on a separate piece of paper,
initial the same, and place them in sealed envelopes. Each of the three
envelopes shall be marked with the name of the party whose determination
is inside the envelope. In the presence of the third arbitrator, the
determination of the Fair Market Rental Value by Landlord's arbitrator and
Tenant's arbitrator shall be opened and examined. If the higher of the two
determinations submitted by Landlord's arbitrator and Tenant's arbitrator
is one hundred and five percent (105%) or less of the amount set forth in
the lower determination, the average of the two determinations shall be
the Fair Market Rental Value, the envelope containing the determination by
the third arbitrator shall be destroyed and the third arbitrator shall be
instructed not to disclose its determination. If either party's envelope
is blank, or does not set forth a determination, the determination of the
other party shall prevail and be treated as the Fair Market Rental Value.
If the higher of the two determinations is more than one hundred and five
percent (105%) of the amount of the other determination, the envelope
containing the third arbitrator's determination shall be opened, and the
Fair Market Rental Value shall, in such event, be the rent proposed by
either Landlord's arbitrator or Tenant's arbitrator which is closest to
the determination of the third arbitrator; if the two are equidistant from
the third arbitrator, the Fair Market Rental Value shall be equal to the
third arbitrator's determination. All arbitrators shall be real estate
appraisers with at least ten (10) years' experience dealing with like
types of properties in the Framingham/Natick area. If the dispute between
the parties as to a Fair Market Rental Value has not been resolved before
the commencement of tenant's obligation to pay rent based upon such Fair
Market Rental Value, then Tenant shall pay
38
Basic Rent and other charges under the Lease in respect of the Premises in
the amounts which were applicable to the twelve (12) month period
immediately prior to the applicable Extension Period until either the
agreement of the parties as to the Fair Market Value designated by
Landlord, or the decision of the arbitrators, as the case may be, at which
time Tenant shall pay any underpayment of Basic Rent and other charges to
Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
LANDLORD
492 OCP, LLC
By: MARIC OCP, LLC
Its Manager
By: /s/ Xxxx X. Xxxxx
----------------------
Xxxx X. Xxxxx
Its Manager
TENANT
MOLDFLOW CORPORATION
By: /s/ A. Rolard Xxxxxx
----------------------------
Name: A. Rolard Xxxxxx
Title: CEO
39
EXHIBIT A
PLAN OF PREMISES
40
EXHIBIT B
LANDLORD'S WORK
Landlord will provide a turnkey build out utilizing Landlord's building standard
methods and materials according to the attached plan SK-3 dated 11/29/04. All
Architectural and Engineering will be at Landlord's cost. Landlord will not
charge any construction management fees. Additionally, Landlord will, as part of
the turnkey build out, include the following items: Demolition (per Plans),
plumbing (demo one sink, install 2 new sinks, "demo room" glass door and two
side lights, removal and reinstallation of window for loading drywall, and the
following over standard millwork using building standard materials - 12 lineal
feet (LF) base cabinet in board room, 10' LF base cabinet in conference room,
12' LF base and upper cabinet in the copy room, 12' LP base and upper cabinet in
pantry, 8' LF base and upper cabinet in mail/copy room, 8' LF base cabinet at
coffee service. Landlord shall provide Tenant with a $3,500 allowance for
reception area upgrades, whereby Tenant shall select items and/or materials
whose cost shall not exceed the allowance amount, and which such items shall be
installed by Landlord in Tenant's reception area.
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EXHIBIT C
BUILDING SERVICES
1. Heating and Cooling. Landlord shall supply, on Business Days from 8:00
a.m. to 6:00 p.m., and from 8:00 a.m. to 1:00 p.m. on Saturdays heating
and cooling as normal seasonal changes may require to provide reasonably
comfortable space temperature and ventilation for occupants of the
Premises under normal business operation at an occupancy of not more than
one person per 150 square feet of Premises Rentable Area and an electrical
load not exceeding 3.0 xxxxx per square foot of Premises Rentable Area. If
Tenant shall require air conditioning, heating or ventilation outside the
hours and days above specified, Landlord may furnish such service and
Tenant shall pay therefor such charges as may from time to time be in
effect. The rate in effect as of the date of this Lease shall be $55.00
per hour, and shall be subject to increase or decrease thereafter to
reflect increases or decreases thereafter in the cost to Landlord of
furnishing such service. In the event Tenant introduces into the Premises
personnel or equipment which overloads the capacity of the Building system
or in any other way interferes with the system's ability to perform
adequately its proper functions, supplementary systems may, if and as
needed, at Landlord's option, be provided by Landlord, at Tenant's
expense.
2. Cleaning.
A. Office Area
Daily on Business Days:
1. Empty and clean all waste receptacles and remove waste
material from the Premises; wash receptacles as necessary.
2. Sweep and dust mop all hard floor surfaces using a dust
treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces including furniture, office equipment, window xxxxx,
door ledges, chair rails, and convector tops, within normal
reach.
5. Wash clean all water fountains.
6. Wipe clean all brass and other bright work.
7. Hand dust all grill work within normal reach.
8. Upon completion of cleaning, all lights will be turned off and
doors locked, leaving the Premises in an orderly condition.
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Weekly
1. Dust coat racks, and the like.
2. Remove all finger marks from private entrance doors, light
switches and doorways.
Quarterly
Render high dusting not reached in daily cleaning to include:
1. Dusting all pictures, frames, charts, graphs, and similar wall
hangings.
2. Dusting all vertical surfaces, such as walls, partitions,
doors, and ducts.
3. Dusting all pipes, ducts and high moldings.
4. Dusting all venetian blinds.
B. Lavatories
Daily on Business Days:
1. Sweep and damp mop floors.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushometers, piping, and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls, and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers,
vending sanitary dispensers; materials to be furnished by
Landlord.
9. A sanitizing solution will be used in all lavatory cleaning.
43
Monthly
1. Machine scrub common area lavatory floors.
2. Wash all partitions and tile walls in lavatories.
C. Main Lobby. Elevators. Building Exterior and Corridors
Daily on Business Days:
1. Sweep and wash all floors.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe down walls in
corridors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding Building Entrance doors.
Monthly
All resilient tile floors in public areas to be treated equivalent to
spray buffing.
D. Window Cleaning
Windows of exterior walls will be washed annually. Windows of atrium
will be washed as required.
E. Tenant requiring services in excess of those described above shall
request same through Landlord, at Tenant's expense.
3. Electrical Service.
A. Landlord shall supply electricity to the Premises to meet a
requirement not to exceed 3.0 xxxxx per square foot of Premises Rentable
Area for lighting and for office machines through standard receptacles for
standard single-phase 120 volt alternating current. Tenant agrees in its
use of the Premises not to exceed such requirement and that its total
connected lighting load will not exceed the maximum from time to time
permitted under applicable governmental regulations. Landlord shall
purchase and install, at Tenant's expense (other than those in place as of
the Commencement Date), all lamps, tubes, bulbs, starters and ballasts.
Tenant shall pay all charges for electricity used or consumed in the
Premises. Landlord shall bear the cost of installation, repair and
maintenance of any electric meter to be used or installed in the Premises.
In order to assure that the foregoing requirements are not exceeded and to
avert any possible adverse
44
affect on the Building's electric system, Tenant shall not, without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed, connect any fixtures, appliances or equipment to the
Building's electric distribution system other than typewriters, pencil
sharpener, adding machines, handheld or desk top calculators, dictaphones,
clocks, personal computers and radios.
Tenant shall pay the Tenant's Electrical Charge for such service.
Except as herein specifically set forth, the Tenant's Electrical Charge
shall be unaffected by the extent of use of such service by Tenant and is
deemed to be included as rental under this Lease payable as and when
provided in Section 3.1 of this Lease. If Landlord reasonably determines,
from time to time, that the cost to Landlord of electricity allocable to
Tenant's use, demand and/or consumption of electricity (or Tenant's future
use, demand and/or consumption of electricity as reasonably projected by
Landlord) consistently exceeds, or is projected by Landlord to
consistently exceed, the Tenant's Electrical Charge (any such use, demand
or consumption of electricity by Tenant being hereinafter referred to as
"EXCESS ELECTRICITY USE"), Landlord may, at its option, give written
notice thereof to Tenant (any such notice being hereinafter referred to as
an "EXCESS ELECTRICITY NOTICE") which notice shall specify the amount by
which Landlord estimates that Landlord's cost of such Excess Electricity
Use exceeds the Tenant's Electrical Charge (any such excess cost being
hereinafter referred to as an "EXCESS ELECTRICITY USE CHARGE"). The Excess
Electricity Use Charge specified in such Excess Electricity Notice shall
be due and payable as additional rent as hereinafter provided. Any Excess
Electricity Use Charge allocable to a period prior to the date of giving
an Excess Electricity Notice shall, at the option of Landlord, be payable
as additional rent within thirty (30) days after written demand is made
therefor by Landlord. Excess Electricity Use Charges allocable to any
period after the date of giving an Excess Electricity Notice shall be due
and payable as additional rent monthly in advance in equal monthly
installments for the balance of the Term of this Lease on the first day of
each calendar month during the Term of this Lease with the first such
installment being due and payable on the first day of the first full
calendar month following the date of giving any such Excess Electricity
Notice.
B. Landlord will determine Excess Electricity Use at Landlord's
option, as follows: (i) by installing submeter(s) and/or check meter(s)
and related wiring and equipment in the Premises at Landlord's expense
and/or (ii) by estimating Excess Electricity Use in the Premises, such
estimates to be prepared by an independent electrical engineer engaged by
Landlord and Landlord shall pay the costs of hiring such engineer) and/or
(iii) by any other reasonably reliable method selected by Landlord to
estimate and/or calculate Excess Electricity Use. Excess Electricity Use
Charges shall be established by Landlord based upon Excess Electricity Use
established as aforesaid and based upon Landlord's estimate of the
additional cost of such electricity to Landlord over and above the
Tenant's Electrical Charge and any then existing Excess Electricity Use
Charges in effect. The cost of such electric submeter(s) as well as the
cost of installation, repair and replacement of any such additional
electrical submeter(s) shall be borne by Tenant. Payments due Landlord
from Tenant under the terms of this Section shall be
45
deemed to be included within the term "Escalation Charges". Landlord shall
have the right, at any time, during the Term of this Lease and as often as
it may elect to determine whether Tenant is incurring Excess Electricity
Use and to assess Excess Electricity Use Charges as aforesaid. Following
any such period when Tenant's electricity consumption and/or needs no
longer exceed the Tenant's Electrical Charge, Tenant shall provide notice
to that effect to Landlord and Landlord shall redetermine Tenant's Excess
Electricity Use Charge, but Landlord shall not be required to redetermine
Tenant's Excess Electricity Use more than once in any twelve (12) month
period.
C. If Tenant shall require, demand, use or consume electricity in
excess of the quantity, voltage or connected load specified in paragraph
3A of this Exhibit D or outside the days or hours specified in said
paragraph 3A (a) Tenant shall, within thirty (30) days after demand,
reimburse Landlord, for the cost of such excess electricity. Further, if
(i) in Landlord's reasonable judgment, Landlord's facilities are
inadequate for such excess requirements, or (ii) such excess use shall
result in an additional burden on the Building's utility systems or
additional cost on account thereof, as the case may be, Tenant shall,
within thirty (30) days after demand, reimburse Landlord for all
additional costs related thereto. Further, if Tenant requires electricity
in excess of the quantity, voltage or connected load specified in
paragraph 3A of this Exhibit D, Landlord, upon written request from
Tenant, and at the sole cost and expense of Tenant, will furnish and
install such additional wire, conduits, feeders, switchboards and
appurtenances as Landlord may reasonably require to supply such additional
requirements of Tenant (if electricity therefor is then available to
Landlord without affecting the Building or Landlord's plans therefor);
provided that Landlord shall have no obligation to furnish any such excess
electricity unless the same shall be permitted by applicable law and
insurance regulations and shall not cause or threaten permanent damage or
injury to the Building or the Premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations or
repairs or interfere with, or disturb other tenants or occupants of, the
Building or interfere with Landlord's plans for the Building.
D. Landlord reserves the right to curtail, suspend, interrupt and/or
stop the supply of water, sewage, electrical current, cleaning, and other
services, and to curtail, suspend, interrupt and/or stop use of entrances
and/or lobbies serving access to the Building, without thereby incurring
any liability to Tenant, when necessary by reason of accident or
emergency, or for repairs, alterations, replacements or improvements in
the reasonable judgment of Landlord desirable or necessary, or when
prevented from supplying such services or use by strikes, lockouts,
difficulty of obtaining materials, accidents or any other cause beyond
Landlord's control, or by laws, orders or inability, by exercise of
reasonable diligence, to obtain electricity, water, gas, steam, coal, oil
or other suitable fuel or power. No diminution or abatement of rent or
other compensation, nor any direct; indirect or consequential damages
shall or will be claimed by Tenant as a result of, nor shall this Lease or
any of the obligations of Tenant be affected or reduced by reason of, any
such interruption, curtailment, suspension or stoppage in the furnishing
of the foregoing services or use, irrespective of the cause thereof.
Failure or omission on the part of Landlord to furnish any of the
foregoing services or use shall not be construed as
46
an eviction of Tenant, actual or constructive, nor entitle Tenant to an
abatement of rent, nor to render the Landlord liable in damages, nor
release Tenant from prompt fulfillment of any of its covenants under this
Lease.
4. Other Services.
Landlord shall also provide:
A. Passenger elevator service from the existing passenger elevator
system in common with Landlord and other tenants in the Building.
B. Hot water for lavatory purposes and cold water (at temperatures
supplied by the municipality in which the Property is located) for
drinking, lavatory and toilet purposes. If Tenant uses water for any
purpose other than for ordinary lavatory and drinking purposes, Landlord
may assess a reasonable charge for the additional water so used, or
install a water meter and thereby measure Tenant's water consumption for
all purposes. In the latter event, Tenant shall pay the cost of the meter
and the cost of installation thereof and shall keep such meter and
installation equipment in good working order and repair. Tenant agrees to
pay for water consumed, as shown on such meter, together with the sewer
charge based on such meter charges, as and when bills are rendered, and if
Tenant defaults in making such payment, Landlord may pay such charges and
collect same from Tenant as an additional charge.
C. Free access to the Premises on Business Days from 8:00 a.m. to
6:00 p.m. and Saturday from 8:00 a.m., to 1 p.m., subject to restrictions
based on emergency conditions and restricted access at all other times
under conditions imposed to provide security for the Building, and all
other applicable provisions of this Lease including, without limitation,
the provisions of Section 7.4 hereof. Notwithstanding the foregoing,
Landlord shall provide Tenant with keycard access to the Building on a
twenty-four hour, seven day a week, fifty-two week a year basis.
D. Maintenance of the exterior of the Building, landscaping and lawn
care and ice and snow removal from exterior steps, walkways, parking areas
and driveways.
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EXHIBIT D
OPERATING EXPENSES
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred
for wages, salaries and other compensation for services, payroll, social
security, unemployment and similar taxes, xxxxxxx'x compensation
insurance, disability benefits, pensions, hospitalization, retirement
plans and group insurance, uniforms and working clothes and the cleaning
thereof, and expenses imposed on Landlord or Landlord's agents pursuant to
any collective bargaining agreement for the services of employees of
Landlord or Landlord's agents in connection with the operation, repair,
maintenance, cleaning, management and protection of the Property, and its
mechanical systems including, without limitation, day and night
supervisors, property manager, accountants, bookkeepers, janitors,
carpenters, engineers, mechanics, electricians and plumbers and personnel
engaged in supervision of any of the persons mentioned above; provided
that, if any such employee is also employed on other property of Landlord,
such compensation shall be suitably prorated among the Property and such
other properties.
2. The cost of services, utilities, materials and supplies furnished or used
in the operation, repair, maintenance, cleaning, management and protection
of the Property, including without limitation fees, if any, imposed upon
Landlord, or charged to the Property, by the state or municipality in
which the Property are located on account of the need of the Property for
increased or augmented public safety services.
3. The cost of replacements for tools and other similar equipment used in the
repair, maintenance, cleaning and protection of the Property, provided
that, in the case of any such equipment used jointly on other property of
Landlord, such costs shall be suitably prorated among the Property and
such other properties.
4. A fee for the management of the Property, not to exceed five percent (5%)
of the gross revenues of the Property, including, without limitation, all
rent and other charges paid by tenants in the Building, together with the
cost of reasonable legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in connection with
services rendered for securing or renewing leases and for matters not
related to the normal administration and operation of the Property.
5. Premiums for insurance against damage or loss to the Building from such
hazards as shall from time to time be generally required by institutional
mortgagees in the Boston area for similar properties, including, but not
limited to insurance covering loss of rent attributable to any such
hazards, and public liability insurance.
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6. If, during the Term of this Lease, Landlord shall make a capital
expenditure (i) required as a result of a change in any Requirement after
the date of this Lease, or (ii) for the purpose of reducing Operating
Expenses, there shall be included in such Operating Expenses for the
Operating Year in which it was made, and in Operating Expenses for each
succeeding Operating Year, an annual charge-off of such capital
expenditure. The annual charge-off shall be determined by dividing the
original capital expenditure plus an interest factor, reasonably
determined by Landlord, as being the interest rate then being charged for
long-term mortgages, by institutional lenders on like properties within
the locality in which the Building is located, by the number of years of
useful life of the capital expenditure, and the useful life shall be
determined reasonably by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of making such
expenditure.
7. Costs for electricity, water and sewer use charges, and other utilities
supplied to the Property and not paid for directly by tenants.
8. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
Operating Expenses shall not include the following:
1. Painting, redecorating or other work which Landlord performs for any other
Tenant or prospective Tenant of the Building other than painting,
redecorating or other work which is standard for the Building and
performed for tenants subsequent to their initial occupancy.
2. Any cost for services provided to specific tenants (rather than generally
to all tenants in the Building) (such as repairs, improvements,
electricity, special cleaning or overtime services) to the extent Landlord
is directly reimbursed by such other tenants (excluding Tenant).
3. Leasing commissions and expenses of procuring tenants, including marketing
costs, finders' fees, attorney's fees, lease concessions and lease
take-over obligations.
4. Depreciation.
5. Interest on and amortization of debt for financing or refinancing.
6. Taxes of any nature, including real estate taxes and interest and
penalties for late payment of taxes.
7. Rent payable under any ground lease to which this Lease is subject.
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8. Costs and expenses of enforcing leases against tenants, including legal
fees, costs and disbursements and other expenses incurred in connection
with negotiations or disputes with tenants, other occupants, prospective
tenants or other occupants.
9. Expenses resulting from any violation by Landlord of the terms of any
lease of space in the building or of any ground or underlying lease or
mortgage to which this lease is subordinate.
10. Landlord's general administrative overhead expenses or salaries of
officers and executives of Landlord not connected with the operation of
the Property or above the grade of property manager unless and to the
extent such person is directly involved in the day to day operation of the
Property.
11. Architectural, engineering and legal fees incurred in connection with
leasing costs or preparing space for new tenants, leasing fees or
commissions and advertising costs.
12. Interest or mortgage charges with respect to financing encumbering the
Property.
13. Costs of reconstruction or other work incurred in connection with any fire
or other casualty insured or required to be insured against hereunder.
14. Charitable or political contributions.
15. Repairs or other work occasioned by (i) earthquake, fire, windstorm, or
other casualty of the type which Landlord has insured or is required to
insure pursuant to the terms of this Lease or for which Landlord is
entitled to reimbursement, whether or not collected, from third parties,
or (ii) the exercise of the right of eminent domain.
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