EXHIBIT 10.4
LEASE
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DATE OF LEASE EXECUTION: Date: March 4, 1999
ARTICLE I
REFERENCE DATA
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1.1 SUBJECTS REFERRED TO: Each reference in this Lease to any of the
following terms shall incorporate the date stated for that subject in
this Section 1.1.
LANDLORD: Wellesley/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Limited Partnership
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MANAGING AGENT: Wellesley Management Corporation
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LANDLORD'S & MANAGING AGENT'S ADDRESS: ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ #200
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Maynard, Ma 01754
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LANDLORD'S REPRESENTATIVE: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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TENANT: SoftLock Services, Inc.
TENANT'S ADDRESS (FOR NOTICE AND BILLING): Five Clock Tower Place, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TENANT'S REPRESENTATIVE: ▇▇▇▇▇ ▇▇▇▇▇
BUILDING: Five Clock Tower Place
RENTABLE FLOOR AREA OF TENANT'S SPACE: 15,592 RENTABLE SQUARE FEET
TOTAL RENTABLE FLOOR AREA OF THE BUILDING: Approximately 366,112 RENTABLE
SQUARE FEET
TOTAL RENTABLE FLOOR AREA OF THE PROJECT: Approximately 1,084,484 RENTABLE
SQUARE FEET
TENANT'S DESIGN COMPLETION DATE: April 1, 1999
SCHEDULED TERM COMMENCEMENT DATE: June 1, 1999
TERM EXPIRATION DATE: May 31 , 2006 INITIAL TERM: Seven (7)Years
EXTENSION OPTION TERMINATION DATE: May 31, 2011
FIXED RENT: $ 16.25 PRSF / Yr.
FIXED RENT:$ 89,375.00/YEAR #1 MONTHLY FIXED RENT: $ 7,447.72(5,500 RSF)
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FIXED RENT:$ 170,625.00/YEAR #2 MONTHLY FIXED RENT: $ 14,218.75(10,500 RSF)
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FIXED RENT:$ 253,370.00/YEARS #3-7 MONTHLY FIXED RENT: $21,114.17(15,592 RSF)
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SECURITY DEPOSIT:$ 20,000.00
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PERMITTED USES: General Office
PUBLIC LIABILITY INSURANCE: Naming Landlord, its agents and principals
as additionally Insured.:
$3,000,000 Bodily Injury
$3,000,000 Property Damage
1.2 EXHIBITS:
The exhibits listed below in this section are incorporated in this
Lease by reference and are to be
construed as part of this Lease:
Exhibit "A" - Plan showing Tenant's Space
Exhibit "B" - Landlord's Services
Exhibit "C" - Estoppel Certificate
Exhibit "D" - SNDA
Exhibit "E" - Rules and Regulations
Exhibit "F" - Cleaning Specifications
ARTICLE II
PREMISES AND TERM
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2.1 PREMISES
Subject to and with the benefit of the provisions of this Lease and
any ground lease or land disposition agreement relating to the parcel
on which the building (the"Building") is located ("the Lot"), Landlord
hereby leases to Tenant and Tenant leases from Landlord, approximately
15,592 Rentable Square Feet located on the fourth floor of the
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Building known as Five Clock Tower Place, Maynard, MA, as shown in
Exhibit A, excluding exterior faces of exterior walls, the common
facilities area and building service fixtures and equipment serving
exclusively or in common other parts of the Building. Tenant's Space,
with such exclusions, is hereinafter referred to as the "Premises".
Tenant shall have use of the entire Premises, however will pay rent of
5,500 RSF for the first twelve months of the term, pay rent on 10,500
RSF for the second twelve months of the initial term and upon
commencement of the twenty fifth month will pay rent on the entire
Premises. Landlord will build out the space per a mutually agreeable
time schedule once the final space plans and pricing are approved.
Tenant shall have, as appurtenant to the Premises, the right to use in
common with others entitled thereto, subject to reasonable rules of
general applicability to tenants of the Building from time to time
made by Landlord of which it is given notice: (a) the common
facilities included in the Building or on the Lot, including the
parking facility, if any, to the extent from time to time designated
by Landlord; and (b) the building service fixtures and equipment
serving the Premises; (c) parking spaces will be allocated per the
three year occupancy schedule and employee occupancy for a total
maximum of 75 spaces, unassigned.
Landlord reserves the right from time to time, without unreasonable
interference with ▇▇▇▇▇▇'s use (a) to install, repair, replace, use,
maintain and relocate for service to the Premises and to other parts
of the Building or either, building service fixtures and equipment
wherever located in the Building, and (b) to alter or relocate any
other common facility provided that substitutions are substantially
equivalent or better.
2.1.1 TEMPORARY SPACE
Upon Lease execution, Landlord will provide temporary office
space to Tenant in building Two on the second floor known as
Suite # 270. Provided that the Tenant's Design plan has been
delivered to Landlord for the leased Premises in building
Five, on or before April 1, 1999 there will be no cost to
Tenant for the Temporary space. Tenant will pay $1,000 per
week for each week that ▇▇▇▇▇▇'s Design plan is delayed
beyond April 15th. However, upon delivery of ▇▇▇▇▇▇'s Design
plan free rent for Temporary space shall again commence.
2.2 TERM
To have and to hold for a period (the "Term") commencing when the
Premises are deemed ready for occupancy as provided in Section 3.2 or,
if no work is to be performed by Landlord pursuant to Article III, on
the Scheduled Term Commencement Date (whichever of said dates is
appropriate being hereafter referred to as the "Commencement Date")
and continuing until the Term Expiration Date, unless sooner
terminated as provided in Section 6.1.6, 7.1 or 9.3 in Article VIII.
2.3 OPTION TO EXTEND
Tenant will have the right to extend the term of the Lease for 1 (one)
5 (five) year term provided that Tenant is not in default and has
given written notice to Landlord of such request at least 12 months
prior to the end of the initial term. The Fixed Rent for such
Extension Option shall be the greater of the then current Fixed Rent
or the fair market rent for said space. In the event that Landlord and
Tenant do not agree on the value of "fair market rent" both Landlord
and Tenant, at their own expense, will employ representative real
estate brokers, who actively broker commercial real estate within the
general market area of the Project. These brokers will agree on the
fair market rent amount. In the event that these two brokers do not
come to agreement both ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ will mutually agree on a
third representative real estate broker, cost of such broker will be
equally split between ▇▇▇▇▇▇ and Landlord. This third real estate
broker will establish a rate and the average of all three estimates of
market rates will become the rental rate for the extension option term
In no event shall the Fixed Rent be less than the rent paid in the
last twelve (12) months of the Initial Term.
ARTICLE III
CONSTRUCTION
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3.1 INITIAL CONSTRUCTION
Tenant shall, on or before ▇▇▇▇▇▇'s Design Completion Date, approve
Landlord's plans and pricing for ▇▇▇▇▇▇'s premises:
In the context of this Lease, ▇▇▇▇▇▇▇▇'s plans are design build and
engineering drawings for ▇▇▇▇▇▇'s work with detail acceptable to
Landlord for, mechanical, electrical and plumbing drawings furnished
by subcontractors to Landlord
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based on scope architectural drawings approved by Tenant consisting of
but not limited to furniture plans, reflective ceiling plans, and
electrical/telephone plans for the completion of ▇▇▇▇▇▇'s work. The
working drawings shall be prepared in compliance with all applicable
Legal requirements and, at Landlord's option, stamped registered
Massachusetts professionals; and shall consist of architectural and
engineering plans which are required to finish the Premises or to
obtain any Authorization required thereof.
Tenant's interior furnishings, i.e., specification, coordination,
supply and installation of furniture, furnishings, telephones and
movable equipment will be the responsibility of Tenant. All of
Tenant's construction, installation of furnishings, and later changes
or additions shall be coordinated with any work being performed by
Landlord in such a manner as to maintain harmonious labor relations
and not damage the Building or Lot or interfere with Building
operations. Except for installation of furnishings and the
installation of telephone outlets, which must be performed by a local
communications company at Tenant's direction and expense, all such
work shall be performed by Landlord's general contractor and Tenant
shall pay (X) any amount in excess of the fifteen dollar per square
foot ($15.00/RSF) Tenant Improvement Allowance (Y) an additional
amount equal to the cost of any changes from the specifications in
Exhibit A, including the cost to Landlord of the general contractor's
overhead and profit, which amount shall be due and payable within an
escrow account prior to the commencement of work schedule or within
ten (10) days of receipt of invoice. This excess amount, so deposited
in Landlord's escrow account, will be drawn after the initial Tenant
Improvement Allowance has been utilized. Landlord will not approve
any construction, alterations, or additions during the initial
construction period or the Term or any extension thereof, requiring
unusual expense to readapt the Premises to normal office use on lease
termination or increasing the cost of construction, insurance, taxes
and/or operating expenses on the Building or of Landlord's service
called for by Section 5.1, unless Tenant first gives assurances
acceptable to Landlord that such readaptation will be made prior to
such termination without expense to Landlord and makes provisions
acceptable to Landlord for payment of such increased cost. Landlord
will also disapprove any alterations or additions requested by Tenant
which will delay completion of the Premises or the Building. All
changes, additions, and alterations made to the Premises during the
Term or any extension thereof shall be part of the Building, except
such items as by writing at the time of approval the parties agree
either shall be removed by Tenant, at its cost, on termination of this
Lease, or shall be removed or left at Landlord's election.
In the event that the cost of the work performed by ▇▇▇▇▇▇▇▇'s general
contractor is less than the Tenant Improvement Allowance of $15.00 per
square foot, Tenant shall receive an immediate credit from the rent
due commensurate with the amount of the savings below said $15.00
allowance. Said Tenant Improvement Allowance shall be amortized over
five years at a rate of 8.5%.
3.2 PREPARATION OF PREMISES FOR OCCUPANCY
If Landlord is obligated to perform construction work pursuant to
Exhibit A, Landlord agrees to use reasonable efforts to have the
Premises ready for occupancy on or before the Scheduled Term
Commencement, at which shall, however, be extended for a period equal
to that of any delays due to Tenant's approval of plans after April 1,
1999, ▇▇▇▇▇▇'s changes after approval of said plans, governmental
regulations, unusual scarcity of, or inability to obtain labor or
materials, labor difficulties, casualty or other causes reasonably
beyond Landlord's, or its agents, control. The Premises shall be
deemed ready for occupancy on the earlier of:
a. the date on which Tenant occupies all or any part of the
Premises; or
b. the date on which the Tenant's improvements, as specified in
Exhibit A, are substantially completed as certified by the
issuance of a Temporary Certificate of Occupancy (TCO) or
Certificate of Occupancy (CO); provided, however, that if
Landlord is unable to complete construction due to delay in
Tenant's compliance with the provisions of Section 3.1 of
this Lease, then the Premises shall be deemed ready for
occupancy no later than the Scheduled Term Commencement
Date. In the event that Tenant Space is not ready for
occupancy, under the aforementioned, Landlord will offset
rent on a day for day basis.
Landlord shall permit Tenant access for installing equipment and
furnishings in the Premises 14 days prior to the Term provided it can
be done without material interference with remaining work.
In the event of ▇▇▇▇▇▇'s failure to comply with the provision of
Section 3.1 of this Lease to submit information and specifications
which meet Landlord's approval, Landlord may, at Landlord's option,
exercisable by notice to Tenant, consider this to be a Tenant Delay.
In such case the Term Commencement Date will remain per Section 1.1,
however ▇▇▇▇▇▇'s Occupancy date will be adjusted to an Outside
Delivery Date equal to the Tenant Delay.
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3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION
All construction work required or permitted by this Lease, whether by
Landlord or by Tenant, shall be done in a good and workmanlike manner
and in compliance with all applicable laws and all lawful ordinances,
regulations and orders of governmental authority and insurers of the
Building. Either party may inspect the work of the other at
reasonable times and shall promptly give notice of observed defects.
Landlord's obligations under Section 3.1 shall be deemed to have been
performed upon substantial completion of Tenant Work, exclusive of
"punchlist items", when ▇▇▇▇▇▇ commences to occupy any portion of the
Premises for the Permitted Uses except for items which are incomplete
or do not conform with the requirements of Section 3.2 and as to which
Tenant shall, in either case, have given written notice to Landlord
prior to commencement. If Tenant shall not have commenced to occupy
the Premises for the Permitted Uses within thirty (30) days after they
are deemed ready for occupancy as provided in Section 3.2, a
certificate of completion by a licensed architect or registered
engineer shall be conclusive evidence that Landlord has performed all
such obligations except for items stated in such certificate to be
incomplete or not in conformity with such requirements. ▇▇▇▇▇▇▇▇'s
General Contractor will warranty all work performed at their direction
for a period of one year from delivery.
Within five days of ▇▇▇▇▇▇'s occupancy both Landlord and ▇▇▇▇▇▇ will
mutually agree on punchlists items to be completed. Upon delivery of
this "punch list" Landlord will have thirty (30) days to complete, and
or reasonably have certain items under prosecution. In the event that
Landlord does not complete such "punchlist items" Tenant will have the
right to hire our own contractor at Landlord's expense to complete
such work.
3.4 REPRESENTATIVES
Each party authorizes the other to rely in connection with their
respective rights and obligations under this Article III upon approval
and other actions on the party's behalf by ▇▇▇▇▇▇▇▇'s Representative
in the case of Landlord or Tenant's Representative in the case of
Tenant or by any person designated in substitution or addition by
written notice to the party relying.
ARTICLE IV
RENT
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4.1 RENT
Tenant agrees to pay, without any offset or reduction whatsoever Fixed
Rent equal to 1/12th of the Fixed Rent in equal installments in
advance on the first day of each calendar month included in the Term;
and for any portion of a calendar month at the beginning or end of the
Term, at the rate payable for such portion in advance.
4.2 TAXES AND OPERATING EXPENSES ESCALATION
4.2.1 Operating Expenses and Taxes
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Operating Expnses shall be defined as all reasonable
expenses, costs, and dispursements of every kind and nature
which Landlord shall pay or become obligated to pay in
connection with the operation amd mainternance of the
Project and the Land and the provison of Landlord services,
exclusive of (i) costs of redecorating, repair and other
services which are not provided on a regular basis to
tenants of the Complex or for which Landlord is entitled to
be paid by specific tenants and others, (ii) wages, salaries
and fees to personell of the Landlord above the level of
Project Director, (iii) replacement or contingiency
reserves, (iv) casualty and losses, (v) eminent domain
takings, (vi) ground lease (other than for parking or
services provided to all tenants), (vii) charges for
depreciation and amortization, (viii) principal and interest
on indebtedness and obligations with respect to equity
interests, (ix) income, excess profit, franchise and similar
taxes, (x) real estate taxes and assesments, (xi) leasing
commissions, (xii) promotional advertising and other public
relations expenses related to leasing, (xiii) legal and
other professional fees relating to leasing, financing and
other services realting to the development of the project,
and (xiv) judgements, amounts paid in settlement and other
legal or extraordinary costs of Landlord (including, without
limitation, under environmental laws), (xv) captial items
not resoanbly allowable per Generally Accepted Accounting
Principles (GAAP).
Taxes shall be defined as all real estate taxes and
assesment imposed on the Complex, the Building or the Land.
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If with respect to: (a) any Calendar Year, the Operating
Expenses exceed the Operating Expense Base or (b) any
Calendar Year, Taxes exceed the Tax Base (whether as the
result of an increase in rate or assessment or both), Tenant
shall pay to Landlord, Tenant's Share, based upon Rentable
Square Feet in the Premises expressed as a percentage of the
Rentable Square Feet in the Complex (and which will
therefore will not vary with changing occupancy levels), of
the amount of each such excess (the "Tenant's Tax and
Expense Overage") as set forth in the Tax and Operating
Expense Statement (as defined below).
Notwithstanding anything to the contrary set forth herein,
the first payment by Tenant with respect to Taxes and
Operating Expenses shall be made in connection with the Tax
and Operating Expense Statement due as of January 31, 2000,
and shall be based upon the increase in Taxes and Operating
Expenses over Calendar Year 1999. In no event shall Tenant
be obligated to make any payments with respect to Operating
Expenses or Taxes until the expiration of the first twelve
(12) full calendar months of the Intitial Term.
4.2.2 Annual Statement of Additional Rent Due for Expenses and Taxes
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By January 31 next succeding the end of each Calendar Year,
Landlord shall render to Tenant a statement, showing (i)(a)
actual Taxes for the prior Calendar Year so indicated and
(b) actual Operating Expenses for the prior Calendar Year so
indicated, if available, and (ii)(a) an Estimate for
Operating Expenses for the then current Calendar Year, (b)
an estimate for Taxes for the then current Calendar Year,
and (c) an estimate of Tenant's Tax and Operating Expense
Overage for the then current Calendar Year (the "Tax and
Operating Expense Statement"). In the event that such
actual Taxes and Operating Expenses for the prior Calendar
Year are not available by January 31, Landlord shall have
until March 31 of such current Calendar Year to provide such
actual Taxes and Operating Expense Statement, but in any
event shall provide an estimate of such Taxes and Operating
Expenses for said applicable Calendar Year by January 31 of
the then current Calendar Year along with (a) an estimate
for Operating Expenses for the then current Calendar Year,
(b) an estimate for Taxes for the then current Calendar Year
and (c) an estimate of ▇▇▇▇▇▇'s Tax and Expense Overage for
the then current Calendar Year. Notwithstanding that such
Taxes and Operating Expense provided by January 31 for the
applicable Calendar Year are actual or estimated, the
Landlord shall set Additional Rent for the then current
Calendar Year no later than January 31 of the then current
Calendar Year, which Additional Rent shall be apportioned
over a twelve month period and payable in monthly
installments of Additional Rent commencing with the next
installment of Fixed Rent, except that the payments for
estimated Operating Expense and Taxes applicable to January,
February and March of the then current Calendar Year shall
be due and payable on March 1st of the then current Calendar
Year. ▇▇▇▇▇▇▇▇'s estimates shall be supported by documented
evidence of any increases.
Landlord shall provide Tenant with an itemized budget for
Operating Expenses (the "Budget") for the then current
Calendar Year on or before January 31 of the then current
Calendar Year, and the reconciliation between the estimated
and actual calculation of Operating Expenses and Taxes (the
"Landlord's Reconciliation") no later than March 31 of the
then current Calendar Year. Tenant shall have ninety (90)
days after receipt of Landlord's Reconciliation to respond
in writing of any dispute to the same.
Landlord shall cause to be kept books and records showing
▇▇▇▇▇▇▇▇'s Operating Expenses in accordance with generally
accepted accounting principles consistently applied. The
amount of any refund of Taxes shall be credited against
Taxes for the Calendar Year in which such refund is
received; provided, however, in the event that ▇▇▇▇▇▇▇▇
receives a refund on account of Taxes after the expiration
of the Term, which refund relates to a Calendar Year during
the term, the amount of such refund fairly allocable to
Tenant shall promptly be refunded to Tenant by Landlord.
All references to Taxes for a particular calendar year shall
be deemed to refer to Taxes due and payable during such
calendar year without regard to when wuch impositions are
assessed or levied.
All records that the Landlord is required to maintain
hereunder or in compliance with applicable law shall be
maintained by the Landlord for a period of two (2) years
following the expiration of the calendar year to which such
records relate. The records maintained by Landlord shall
include evidence for all charges payable with respect to
Taxes and Operating Expenses. Such records shall be
maintained at the Project, or such other place within The
Commonwealth of Massachusetts as Landlord shall designate
from time to time for the keeping of such records.
Tenant shall have the right, through its representatives, to
examine, copy and audit all records of the Project
maintained by Landlord which relate to the Tax and Expense
Statement or the Landlord's Reconciliation at
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reasonable times, but no more than once per Calendar Year,
upon not less than thirty (30) days prior written notice,
unless such examination or audit is being conducted in
connection with a Tax and Operating Expense Statement or
Landlord's Reconciliation, in which case Tenant shall,
notwithstanding anything to the contrary contained herein,
provide no less than five (5) days notice to Landlord prior
to the expiration of ninety (90) days after receipt of
Landlord's Reconciliation. In the event that Tenant
requests such review of said records, Tenant shall have one
hundred-fifty (150) days after receipt of Landlord's
Reconciliation (but not after August 31) to conduct an audit
and provide the Landlord with results of such audit. The
cost of such audits shall be borne by Tenant. If, as a
result of such audit, it is determined that ▇▇▇▇▇▇ has
overpaid Landlord on account of Operating Expenses, then the
undercharged or overpaid party shall reimburse the other
party for the payment due in a lump sum payment within
thirty (30) days of the determination of the acutal charges.
Notwithstanding anything contained to the contrary in this
Lease, the initial responsibility for the payment of all
Taxes with respect to the Building and the Project shall be
upon the Landlord and the Landlord agrees to pay the same as
requested by law, but in any event so as to assure the
Tenant's right to occupy the Premises and to use the Common
Areas of the Project shall not be disturbed or threatened.
Landlord shall provide Tenant with copies of all tax bills
and a computation of Tenant's pro rata share thereof; in the
event that any special assessments and payable, ▇▇▇▇▇▇'s pro
rata share of the same shall be calculated as if such
assessments were being paid by Landlord over the longest
period of time permitted by applicable law.
Further, notwithstanding anything to the contrary contained
herein; (i) Tax Base shall be the Taxes for the 1999
calendar year, and (ii) the Operating Expense Base shall be
the Operating Expenses for the 1999 calendar year
4.2.3 Monthly Payments of Expenses and Taxes as Additional Rent
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Subject to Section 4.2.1, Tenant shall pay to Landlord in
advance for each calendar month as Additional Rent an amount
equal to 1/12th of Tenant's estimated obligation. The
amount due shall be paid with Tenant's monthly payments of
Rent and shall be credited by Landlord to Tenant's
obligations. If the total amount paid hereunder exceeds the
actual amount due, such excess shall be credited by Landlord
against the monthly installments of Additional Rent next
falling due or shall be refunded to Tenant within thirty
(30) days of the expiration or termination of this Lease
(unless such expiration or termination is the result of an
Event of Default, then such excess may be applied by
Landlord to offset any other costs, fees or expenses due
from Tenant to Landlord hereunder).
4.2.4 Accounting Periods
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In all Tax and Expense Statements rendered, amounts for
periods partially within and partially without the
accounting periods shall be appropriately apportioned, and
any items which are not determinable at the time of a
statement shall be included therein on the basis of
Landlord's estimate and with respect thereof Landlord shall
render promptly after determination a supplemental statement
and appropriate adjustment shall be made according thereto.
4.2.5 Abatement of Taxes
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Landlord may at any time and from time to time make
application to the appropriate Governmental Authority for an
abatement of Taxes so long as, at Landlord's sole
discretion, such application is not in violation of any of
Landlord's TIFF covenants, or any other of Landlord's
contracts made with any municipal, state or federal
governmental entities.
4.3 INTENTIONALLY OMITTED
4.4 ELECTRIC SERVICE; PAYMENT AS ADDITIONAL RENT
The Landlord shall provide 480/277, 120/208 volt, electrical services
to the Premises, and shall make available for Tenant's electrical use,
six (6) ▇▇▇▇▇ per RSF above the Building Base Electric Use (as defined
below). The Landlord shall make reasonable efforts to price
electrical service for the Project.
The "BUILDING BASE ELECTRIC USE" is that amount of wattage delivered
to the Building from the switch gear available to power any and all
Common Areas and appurtenances thereto.
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The Landlord shall check meter electricity to the Premises, and shall
bill Tenant directly for such electrical energy with no markup for
Landlord's profit on the Tenant's electrical energy use (the "Electric
Bill"). Landlord shall provide Tenant with said Electric Bill monthly
upon its receipt of the same, which amount shall be due from Tenant as
Additional Rent upon the later to occur of (a) twenty (20) days after
the receipt fo the Electric Bill, or (b) with the next installment of
Basic Rent, as set forth below.
4.5 PAYMENTS
All payments of Fixed or Additional Rent shall be made to the Landlord
or to such other person as Landlord may from time to time designate.
If any installment of Rent, Fixed or Additional, or on account of
leasehold improvements is paid more than five (5) days after the due
date thereof, at Landlord's election, it shall bear interest at the
base rate announced from time to time by Fleet National Bank (or its
successors) plus 400 basis points per annum on a perdiem basis from
such due date, which interest shall be immediately due and payable as
further additional rent.
ARTICLE V
LANDLORD'S COVENANTS
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5.1 LANDLORD'S COVENANTS DURING THE TERM
Landlord covenants during the Term:
5.1.1 Building Services - To furnish, through Landlord's employees
or independent contractors, the services listed in Exhibit
B;
5.1.2 Additional Building Services - To furnish, through
Landlord's employees or independent contractors, reasonable
additional Building operation services upon reasonable
advance request of Tenant at equitable rates from time to
time established by Landlord to be paid by Tenant with the
next monthly rent installment after receipt of bill by
Landlord for said requested services;
5.1.3 Repairs - Except as otherwise provided in Article VII, to
make such repairs to the roof, exterior walls, exterior
windows, exterior doors, floor slabs, load bearing columns,
foundation, common facilities (including HVAC systems,
plumbing and electrical systems) for the Building and common
areas of the Lot as may be necessary to keep them in good
and serviceable condition;
5.1.4 Quiet Enjoyment - That Landlord has the right to make this
Lease and that Tenant, on paying the rent and performing its
obligations hereunder, shall peacefully and quietly have,
hold and enjoy the Premises throughout the Term without any
manner of hindrance or molestation from Landlord or anyone
claiming under Landlord, subject, however, to all the terms
and provisions hereof;
5.1.5 To keep the Premises equipped in accordance with
Massachusetts Law with all fire and safety equipment
mandated as the responsibility of Landlords; and ADA
compliance
5.1.6 Landlord's Workmen's Compensation Insurance - To keep all
Landlord's employees working in the Premises covered by
workmen's compensation insurance in statutory amounts.
5.2 INTERRUPTIONS
Landlord shall not be liable to Tenant for any compensation or
reduction of rent by reason of inconvenience or annoyance or for loss
of business arising from power losses or shortages or from the
necessity of Landlord's entering the Premises for any of the purposes
in this Lease authorized, or for repairing the Premises or any portion
of the Building or improvements or the Lot. In case Landlord is
prevented or delayed from making the repairs, alterations or
improvements, or furnishing any service or performing any other
covenant or duty to be performed on Landlord's part, by reason of any
cause reasonably beyond Landlord's control, Landlord shall not be
liable to Tenant therefore, nor, except as expressly otherwise
provided in Article VII, shall Tenant be entitled to any abatement or
reduction of rent by reason thereof, or shall the same give rise to
a claim in Tenant's favor that such failure constitutes, actual or
constructive, total or partial, eviction from the Premises.
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Landlord reserves the right to stop any service or utility system when
necessary by reason of accident or emergency or until necessary
repairs have been completed. Except in case of emergency repairs,
Landlord will give Tenant reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid
unnecessary inconvenience to Tenant by reason thereof.
Notwithstanding anything herein contained to the contrary, this
paragraph shall not apply to power outages caused by Landlords failure
or neglect to pay utility fees or the Landlord's failure to properly
maintain the on site distribution systems.
ARTICLE VI
TENANT'S COVENANTS
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6.1 TENANT'S COVENANTS DURING THE TERM
Tenant covenants during the Term and such further time as Tenant
occupies any part of the Premises:
6.1.1 Tenant's Payments - to pay when due (a) all Fixed Rent and
Additional Rent, (b) all Taxes which may be imposed on
Tenant's personal property in the Premises (including,
without limitation, Tenant's fixtures and equipment)
regardless to whomever assessed, (c) all charges by public
utilities for telephone and other utility services
(including service inspections thereof) rendered to the
Premises not otherwise required hereunder to be furnished by
Landlord without charge and not consumed in connection with
any services required to be furnished by Landlord without
charge, and (d) as Additional Rent, all charges of Landlord
for services rendered pursuant to section 5.1.2 hereof;
6.1.2 Repairs and Yielding Up - Except as otherwise provided in
Article VII and Section 5.1.3, to keep the Premises in good
order, repair and condition, reasonable wear and damage from
casualty only excepted, and at the expiration or termination
of this Lease peaceably to yield up the Premises and all
changes and additions therein in such order, repair and
condition, first removing all goods and effects of Tenant
and any items, the removal of which is required by agreement
or specified therein to be removed at Landlord's election,
at ▇▇▇▇▇▇'s sole cost and expense, and which Landlord
requires to be removed, and repairing all damage caused by
such removal and restoring the Premises and leaving them
clean and neat, at Tenant's sole cost and expense; any
property not so removed shall be deemed abandoned and may be
removed and disposed of by Landlord, in such manner as
Landlord shall determine, and Tenant shall pay Landlord the
entire cost and expense incurred by it by effecting such
removal and disposition and in making any incidental repairs
and replacements to the Premises for use and occupancy
during the period after the expiration of the Term; it
being agreed that the acceptance of reasonable use and wear
shall not apply so as to permit Tenant to keep the Premises
and the use reasonably made thereof, or in less than good
and tenant-like repair;
6.1.3 Occupancy and Use - Continuously from the Commencement Date,
to use and occupy the Premises only for the Permitted Uses;
and not to injure or deface the Premises, Building or Lot;
and not to permit in the Premises any auction sale,
nuisance, or the emission from the Premises of any
objectionable noise or odor; nor any use thereof which is
improper, offensive, contrary to law or ordinance, or liable
to invalidate or increase the premiums for any insurance on
the Building or its contents or liable to render necessary
any alteration or addition to the Building;
6.1.4 Rules and Regulations - To comply with all Rules and
Regulations reasonably adopted by Landlord now or hereafter
, of which ▇▇▇▇▇▇ has been given notice and received copies,
for the care and use of the Building and Lot and their
facilities and approaches, it being understood that Landlord
shall not be liable to Tenant for the failure of other
tenants of the Building to conform to such Rules and
Regulations;
6.1.5 Safety Appliances - To keep the Premises equipped with all
safety appliances required by law or ordinance or any other
regulation of any public authority, because of permits so
required because of such use and, if requested by ▇▇▇▇▇▇▇▇,
to do any work so required because of such use, it being
understood that the foregoing provisions shall not be
construed to broaden in any way Tenant's Permitted Uses;
6.1.6 Assignment and Subletting - Not without prior written
consent of Landlord, which consent shall not be unreasonably
withheld, to assign this Lease, to make any sublease, or to
permit occupancy of the Premises or any part thereof by
anyone other than Tenant, voluntarily or by operation of
law, it being understood that (i) in no event shall Landlord
consent to any such assignment, sublease or occupancy if the
same is on terms
8
more favorable to the successor occupant than to the then
occupant or to the current rates being marketed, to a
perspective Subleases, by Landlord for similar space , and
(ii) if Tenant is a corporation, any transfer of fifty
percent (50%) or more of the voting stock of Tenant or its
merger with another corporation, trust, partnership, or
entity without Landlord's prior written notice shall not be
deemed an event of default, provided that the surviving
entity is of equal or greater net worth as Tenant hereunder;
as Additional Rent, to reimburse Landlord promptly for
reasonable legal and other expenses incurred by Landlord in
connection with any request by Tenant for consent to
assignment or subletting; no assignment or subletting shall
affect the continuing primary liability of Tenant (which,
following assignment, shall be joint and several with the
assignee); no consent to any of the foregoing in a specific
instance shall operate as waiver in any subsequent instance.
If Tenant requests ▇▇▇▇▇▇▇▇'s consent to assign this Lease
or sublet more than seventy percent (70%) of the Premises,
Landlord shall have the option, exercisable by written
notice to Tenant given within ten (10) days after receipt of
such request, to terminate this Lease as of a date specified
in such notice which shall be not less than thirty (30), or
more than sixty (60), days after the date of such notice;
and any rental received by Tenant from a sub-tenant must be
remitted to Landlord;
If Landlord approves a sublease and said sublease is for a
total rental amount which on an annualized basis is greater
than the Fixed Rent and Additional Rent due from Tenant to
Landlord under this Lease, Tenant shall pay to Landlord,
forthwith upon Tenant's receipt of each installment of such
excess Fixed Rent and Additional Rent, during the term of
any approved sublease, as Additional Rent hereunder, in
addition to the Fixed Rent and Additional Rent and other
payments due under this Lease, an amount equal to One
Hundred percent (100%) of the positive excess between all
Fixed Rent and Additional Rent received by Tenant under the
sublease and the aggregate of the Fixed Rent and Additional
Rent due hereunder.
6.1.7 To defend, with counsel reasonably acceptable to Landlord,
save harmless, and indemnify Landlord from any liability for
injury, loss, accident or damage to any person or property
and from any claims, actions, proceedings and expenses and
costs in connection therewith (including, without implied
limitation, reasonable counsel fees): (i) arising from the
omission, fault, willful act, negligence or other misconduct
of Tenant or from any use made or thing done or occurring on
the Premises not due to the omission, fault, willful act,
negligence or other misconduct of Landlord, its agents or
employees, or (ii) resulting from the failure of Tenant to
perform and discharge its covenants and obligations under
this Lease;
6.1.8 Tenant's Liability Insurance - To maintain public liability
insurance in the Premises in amounts which shall, at the
beginning of the Term, be at least equal to the limits set
forth in Section 1.1 and, from time to time during the Term,
shall be for such higher limits, if any, as are customarily
carried in the area in which the Premises are located on
property similar to the Premises and used for similar
purposes and to furnish Landlord with the certificates
thereof naming Landlord as named insured provided further
that such insurance shall provide that it may not be
cancelled or terminated without thirty (30) days prior
written notice to Landlord;
6.1.9 Tenant's Workmen's Compensation Insurance - To keep all
Tenant's employees working in the Premises covered by
workmen's compensation insurance in statutory amounts and to
furnish Landlord with certificates thereof provided further
that such insurance shall provided that it may not be
cancelled or terminated without thirty (30) days prior
written notice to Landlord;
6.1.10 Landlord's Right of Entry - To permit Landlord and
Landlord's agents entry to examine the Premises at
reasonable times (provided that Landlord shall use
reasonable efforts to minimize any interference with
▇▇▇▇▇▇'s business caused by any entry pursuant to this
Section) and, if Landlord shall so elect, to make repairs or
replacements; to remove, at Tenant's expense, any changes,
additions, signs, curtains, blinds, shades, awnings,
aerials, flagpoles, or the like not consented to in writing;
and to show the Premises to prospective tenants during the
twelve (12) months preceding expiration of the Term and to
prospective purchasers and mortgagees at all reasonable
times. In the event of an emergency, which shall be the sole
judgement of the Landlord, Landlord shall not be required to
give said aforementioned notice;
6.1.11 Loading - Not to place a load upon the Premises exceeding an
average rate of fifty (50) pounds of live load per square
foot of floor area; Tenant's business machines and
mechanical equipment which cause vibration or noise that may
be transmitted to the Building structure or to another
leased space in the Building shall be placed and maintained
by Tenant in settings of cork, rubber, spring, or other
types of vibration or noise eliminators sufficient to
eliminate such vibration or noise;
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6.1.12 Landlord's Costs - In case Landlord shall be made party to
any litigation commenced against Tenant or against any
parties in possession of the Premises or any part thereof
claiming under Tenant, to pay, as Additional Rent, all costs
including, without implied limitation, reasonable counsel
fees incurred by Landlord in connection with the successful
enforcement by Landlord of any obligations of Tenant under
this Lease;
6.1.13 Tenant's Property - All furnishings, fixtures, equipment,
effects and property of every kind, nature and description
of Tenant and of all persons claiming by, through or under
Tenant which, during the continuance of this Lease or any
occupancy of the Premises by Tenant or anyone claiming under
Tenant, may be on the Premises or elsewhere in the Building
or on the Lot shall be at the sole risk and hazard of
Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, or other
pipes, by theft, or from any other cause not resulting from
the intentional or grossly negligent act or omission of
Landlord, its servants, agents and employees, no part of
said loss or damage is to be charged to or to be borne by
Landlord;
6.1.14 Labor or Materialmen's Liens - To pay promptly when due the
entire cost of any work done on the Premises by Tenant, its
agents, employees, or independent contractors; not to cause
or permit any liens for labor or materials performed or
furnished in connection therewith to attach to the Premises;
and immediately to discharge any such liens which may so
attach;
6.1.15 Changes or Additions - Not to make any changes or additions
to the Premises without Landlord's prior written consent,
provided that Landlord's consent to non-structural changes
or additions (specifically excluding signs or other changes
visible from the exterior of the Premises) shall not be
unreasonably withheld or delayed; ▇▇▇▇▇▇ agrees to use the
services of Landlord's General Contractor for any such
Changes or Additions.
6.1.16 Holdover - To pay to Landlord twice the total of the Fixed
Rent and Additional Rent then applicable for each month or
portion thereof should Tenant retain possession of the
Premises or any part thereof after the termination of this
Lease without the express written consent of the Landlord,
whether by lapse of time or otherwise, and also to pay all
damages sustained by Landlord on account thereof; the
provisions of this subsection shall not operate as a waiver
by Landlord of any right of re-entry provided in this Lease.
ARTICLE VII
CASUALTY AND TAKING
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7.1 CASUALTY AND TAKING
In case during the Term all or any substantial part of the Premises,
the Building, the Project, or Lot or any one or more of them, are
damaged materially by fire or any other cause or by action of public
or other authority in consequence thereof or are taken by eminent
domain or Landlord receives compensable damage by reason of anything
lawfully done in pursuance of public or other authority, this Lease
shall terminate at Landlord's election, which may be made,
notwithstanding that Landlord's entire interest may have been
divested, by notice given to Tenant within thirty (30) days after the
occurrence of the event giving rise to the election, to terminate,
which notice shall specify the effective date of termination which
shall not be less than fifteen (15), nor more than thirty (30), days
after the date of notice of such termination. If in any such case the
Premises are rendered unfit for use and occupancy and the Lease is not
so terminated, Landlord shall use due diligence to put the Premises,
or, in case of taking, what may remain thereof (excluding any items
installed or paid for by Tenant which Tenant may be required or
permitted to remove) into proper condition for use and occupation to
the extent permitted by the net award of insurance or damages, and
just proportion of the Fixed Rent and Additional Rent according to the
nature and extent of the injury shall be abated until the Premises or
such remainder shall have been put by Landlord in such condition; and
in case of a taking which permanently reduces the area of the
Premises, a just proportion of the Fixed Rent and additional rent
shall be abated for the remainder of the Term. In the event that
Landlord estimates that it will take more than six (6) months to
restore the premises to proper condition, Tenant may terminate this
Lease by notice to Landlord given within fifteen (15) days of the date
of Landlord's notice to Tenant. Landlord will notify Tenant within
thirty (30) days of Casualty or Taking of its estimate of damage and
whether it intends to restore.
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7.2 RESERVATION OF AWARD
Landlord reserves to itself any and all rights to receive awards made
for damages to the Premises, Building, Project or Lot and the
leasehold hereby created, or any one or more of them, accruing by
reason of exercise of eminent domain or by reason of anything lawfully
done in pursuance of public or other authority. Tenant hereby
releases and assigns to Landlord all Tenant's right to such awards,
and covenants to deliver such further assignments and assurances
thereof as Landlord may from time to time request. It is agreed and
understood, however, and ▇▇▇▇▇▇ does not assign to Landlord, any
damages payable for (i) moveable trade fixtures installed by Tenant or
anybody claiming under Tenant, at its own expense, or (ii) relocation
expenses recoverable by ▇▇▇▇▇▇ from such authority in a separate
action.
ARTICLE VIII
DEFAULT
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8.1 EVENTS OF DEFAULT
If any default by Tenant (of which Landlord is not required to give
written notice more than one (1) time per calendar year) continues for
more than five (5) days after notice, in case of Fixed Rent or
Additional Rent, or in any other case for more than thirty (30) days
and such additional time, if any, as is reasonable necessary to cure
the default if the default is of such a nature that it cannot
reasonable by cured in thirty (30) days; or if Tenant makes any
assignment for the benefit of creditors, or files a petition under any
bankruptcy or insolvency law; or if such a petition is filed against
Tenant and is not dismissed within thirty (30) days; or if a receiver
or similar officer becomes entitled to ▇▇▇▇▇▇'s leasehold hereunder,
and it is not returned to Tenant within ninety (90) days, or if such
leasehold is taken on execution or other process of law in any action
against Tenant then, and in any such cases, Landlord and the agents
and servants of Landlord may, in addition to and not in derogation of
any remedies for any preceding breach of covenant, immediately or at
any time thereafter while such default continues and without further
notice and in compliance with applicable law enter into and upon the
Premises or any part thereof in the name of the whole or mail a notice
of termination addressed to Tenant at the Premises and repossess the
same as of Landlord's former estate and expel Tenant and those
claiming through or under Tenant and remove its and their effects
without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of
rent or prior breach of covenant, and upon such entry or mailing as
aforesaid, this Lease shall terminate, but Tenant shall remain liable
as hereinafter provided. Landlord may, in the event Tenant fails or
refuses to vacate the Premises, remove and store Tenant's effects and
those of any person claiming through or under Tenant at the expense of
Tenant.
8.2 TENANT'S OBLIGATION AFTER TERMINATION
In the event that this Lease is terminated under any of the provisions
contained in Section 8.1 or shall be otherwise terminated for breach
of any obligation of Tenant, Tenant covenants to pay forthwith to
Landlord, as compensation, if Landlord so elects, the excess of the
total Rent reserved for the residue of the Term over the rental value
of the Premises for said residue of the Term, discounted to its
present value. In calculating the rent reserved, there shall be
included, in addition to the Fixed Rent and all Additional Rent, the
value of all other consideration agreed to be paid or performed by
▇▇▇▇▇▇ for said residue. Tenant further covenants, as alternative to
the payment described in the preceding sentence, a cumulative
obligation after any such ending to pay punctually to Landlord all the
sums and perform all the obligations which Tenant covenants in this
Lease to pay and to perform in the same manner and to the same extent
and at the same time as if this Lease had not been terminated. In
calculating the amounts to be paid by Tenant under the next foregoing
covenant, Tenant shall be credited with any amount paid to Landlord as
compensation as provided in the first sentence of this Section 8.2 and
also with the net proceeds of any rents obtained by Landlord by re-
letting the Premises, after deducting all Landlord's reasonable
expenses in connection with such re-letting, including, without
implied limitation, all repossession costs, brokerage commissions,
fees for legal services and expense of preparing the Premises for such
re-letting, it being agreed by Tenant that Landlord may (i) re-let the
Premises or any part thereof for a term or terms which may, at
Landlord's option, be equal to or less than or exceed the period which
would otherwise have constituted the balance of the Term and may grant
such concessions and free rent as Landlord in its sole judgement
considers advisable or necessary to re-let the same, and (ii) make
such alterations, repairs and decorations in the Premises as Landlord
in its sole judgement considers advisable or necessary to re-let the
same, and no action of Landlord in accordance with the foregoing or
failure to re-let or to collect rent under re-letting shall operate or
be construed to release or reduce Tenant's liability as aforesaid.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal
to the maximum allowed by any statute or rule of law in effect at the
time when, and governing the proceedings in which, the damages
11
are to be proved, whether or not the amount be greater, equal to, or
less than the amount of the loss or damages referred to above.
ARTICLE IX
MISCELLANEOUS
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9.1 TITLES
The titles of the Articles are for convenience and are not to be
considered in construing this Lease.
9.2 NOTICE OF LEASE
Upon request of either party, both parties shall execute and deliver,
after the term begins, a short form of this Lease in a form
appropriate for recording or registration, and if this Lease is
terminated before the term expires, an instrument in such form
acknowledging the date of termination.
9.3 RELOCATION
Landlord reserves the right to relocate the Premises to comparable
space with comparable access within the Building or another building
in the office park in which the Building is located by giving Tenant
one hundred twenty (120) days written notice of such intention to
relocate at any time after the first anniversary of the Commencement
Date. If, within thirty (30) days after receipt of such notice,
Landlord and Tenant have not agreed on the space to which the Premises
are to be relocated and the timing of such relocation, this Lease
shall terminate on that date which is ninety (90) days after ▇▇▇▇▇▇'s
receipt of such notice. If Landlord and Tenant do so agree, then
effective on the date of such relocation, this Lease shall be amended
by deleting the description of the original Premises and substituting
therefore a description of such comparable space. Landlord agrees to
pay the reasonable costs of moving Tenant to such other space within
the Building or the Complex, including the expense of comparable
leasehold improvements. Such reasonable costs to include all
additional costs caused by the move including but not limited to
charges associated with changes to Tenant's telecommunications or
internet carriers and changes to sales or ancillary materials
containing tenant's address or directions to Tenant's offices.
9.4 NOTICES FROM ONE PARTY TO THE OTHER
No notice, approval, consent requested or election required or
permitted to be given or made pursuant to this Lease shall be
effective unless the same is in writing delivered by mail or in hand.
Communications shall be addressed, if to Landlord, at Landlord's
Address or at such other address as may have been specified by prior
notice to Tenant and, if to Tenant, at Tenant's Address or at such
other place as may have been specified by prior notice to Landlord.
Any communication so addressed shall be deemed duly served if mailed
by registered or certified mail, return receipt requested, and shall
be deemed received on the earlier of (i) the third (3rd) business day
after the date of mailing or (ii) the date of actual receipt.
9.5 BIND AND INURE
The obligations of the Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Landlord
named herein and each successive owner of the Premises shall be liable
only for the obligations accruing during the period of its ownership.
Neither the Landlord named herein nor any successive owner of the
Premises, whether an individual, trust, a corporation or otherwise
shall have any personal monetary liability beyond their equity
interest in the Premises.
9.6 NO SURRENDER
The delivery of keys and access cards to any employees of Landlord or
to Landlord's agent or any employee thereof shall not operate as a
termination of this Lease or a surrender of the Premises.
9.7 NO WAIVER, ETC.
The failure of Landlord or of Tenant to seek redress for violation of,
or to insist upon the strict performance of a covenant or condition of
this lease or, with respect to such failure of Landlord, any of the
Rules and Regulations
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referred to in Section 6.1.4, whether heretofore or hereafter adopted
by Landlord, shall not be deemed a waiver of such violation nor
prevent a subsequent act, which would have originally constituted a
violation from having all the force and effect of an original
violation, nor shall the failure of Landlord to enforce any of said
Rules and Regulation against any other tenant in the Building be
deemed a waiver of any such Rules and Regulations. The receipt by
Landlord of Fixed Rent or Additional Rent with knowledge of the breach
of any covenant of this Lease shall not be deemed a waiver of such
breach by Landlord, unless such waiver be in writing signed by
Landlord. The payment to Landlord of Fixed Rent or Additional Rent
with knowledge of the breach of any covenant of this Lease shall not
be deemed a waiver of such breach by Tenant, unless such waiver be in
writing signed by ▇▇▇▇▇▇. No consent or waiver, express or implied,
by Landlord or Tenant to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of
the same or any other agreement or duty.
9.8 NO ACCORD AND SATISFACTION
No acceptance by Landlord of a lesser sum than the Fixed Rent and
Additional Rent then due shall be deemed to be other than on account
of the earliest installment of such Fixed Rent and Additional Rent
due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed as accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such
installment or pursue any other remedy in this Lease provided.
9.9 CUMULATIVE REMEDIES
The specific remedies to which Landlord or Tenant may resort under the
terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be
lawfully entitled in case of any breach or threatened breach by either
party of any provisions of this Lease. In addition to the other
remedies provided in this Lease, Landlord and Tenant shall each be
entitled to the restraint by injunction of the violation or attempted
or threatened violation of any of the covenants, conditions or
provisions of this Lease or to a decree compelling specific
performance of any such covenants, conditions or provisions.
9.10 PARTIAL INVALIDITY
If any terms of this Lease, or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such term to persons or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this
Lease shall be valid and enforceable to the fullest extent permitted
by law.
9.11 LANDLORD'S RIGHT TO CURE
If Tenant, after proper notice is given by Landlord if required
hereunder, shall at any time default in the performance of any
obligation under this Lease, and if such default shall continue after
the expiration of any applicable cure periods, Landlord shall have the
right, but shall not be obligated, to enter upon the Premises and to
perform such obligation, notwithstanding the fact that no specific
provision for such substituted performance by Landlord is made in this
Lease with respect to such default. In performing such obligation,
Landlord may make any payment of money or perform any other act. All
sums so paid by ▇▇▇▇▇▇▇▇ (together with interest at the rate of four
hundred (400) basis points per annum in excess of the then prime rate
of interest being charged by Fleet National Bank or its successors),
and all necessary incidental costs and expenses in connection with the
performance of any such act by ▇▇▇▇▇▇▇▇, shall be deemed to be
additional rent under this Lease and shall be payable to Landlord
immediately on demand. Landlord may exercise the foregoing right
without waiving any other of its rights or releasing Tenant from any
of its obligations under this Lease.
9.12 ESTOPPEL CERTIFICATE
Tenant agrees on the Commencement Date, and from time to time
thereafter, upon not less than fifteen (15) days prior written request
by ▇▇▇▇▇▇▇▇, to execute, acknowledge and deliver to Landlord a
statement in writing, in language acceptable to Landlord's Lender, in
the form attached hereto as Exhibit D. Any such statements delivered
pursuant to this Section 9.12 may be relied upon by any prospective
purchaser or mortgagee of premises which include the Premises or any
prospective assignee of any such mortgagee.
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9.13 WAIVER OF SUBROGATION
Any insurance carried by either party with respect to the Premises and
property therein or occurrences thereon, shall if the other party so
requests and it can be so written without additional premium which the
other party agrees to pay, include a clause or endorsement denying to
the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of
injury or loss. Each party, notwithstanding any provisions of this
Lease to the contrary, hereby waives any rights of recovery against
the other for injury or loss due to hazards covered by insurance
containing such clause or endorsement to the extent of the
indemnification received thereunder.
9.14 BROKERAGE
Tenant represents and warrants that it has dealt with no broker other
than ▇▇▇▇ ▇▇▇▇▇▇▇▇ and CB ▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇▇ Partners. Said broker
shall be compensated by Landlord under a separate agreement. ▇▇▇▇▇▇,
in connection with this transaction, agrees to defend, indemnify and
save Landlord harmless from and against any and all claims for a
commission arising out of this Lease and arising out of a relationship
between ▇▇▇▇▇▇ and a broker other than the aforementioned.
9.15 QUIET ENJOYMENT
9.15.1 Landlord's Covenant
-------------------
Provided that an Event of default has not occurred and is
not then continuing, Tenant shall, subject to the Permitted
Exceptions, quietly have and enjoy the Premises during the
Lease Term, without hindrance or molestation from any Person
claiming by, though or under Landlord.
9.15.2 Subordination
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This Lease is and shall be subject and subordinate to any
mortgage now or hereafter on the Building and to each
advance made or hereafter to be made under any mortgagee,
and to all renewals, modifications, consolidations,
replacements and extensions thereof and all substitutions
therefore at the election of the holder of any such
mortgage, provided the holder of any such mortgage
recognized ▇▇▇▇▇▇'s rights hereunder. To effectuate such
subordination, Tenant and such holder shall execute and
deliver promptly any subordination, non-disturbance and
attornment agreement ("SNDA") that Landlord or any
mortgagee, in language acceptable to mortgagee, may
reasonably request. The election by said mortgagee to
subordinate any such presently existing mortgage to this
Lease shall be exercisable by filing with the appropriate
recording office a notice of such election (the
"SUBORDINATION NOTICE"), whereupon this Lease shall have
priority over such mortgage. A copy of such filing shall be
given to Tenant. Such election by the holder of any
presently existing mortgage shall not affect priority with
respect to this Lease of any other presently existing
mortgage. In the event that any mortgagee shall succeed to
the interest of Landlord then this Lease shall continue in
full force and effect, provided that Tenant is not then in
default under this Lease beyond the expiration of any
applicable notice or grace period, and Tenant shall and does
hereby agree to attorn to such mortgagee and to recognize
such mortgagee as its Landlord. Within thirty (30) days of
the date hereof, Landlord shall deliver to Tenant, and
Tenant shall execute and deliver, a commercially reasonable
SNDA from all mortgagees with respect to the Building, in
the Lender's form annexed hereto and made a part hereof as
Exhibit "D", "SUBORDINATION". Upon the execution and
delivery of an SNDA, the provisions of such SNDA shall
control in the event of any inconsistency between the
provisions of such SNDA and the provisions of section 9.15
of this Lease.
Any mortgage or other voluntary lien or other encumbrance
recorded subsequent to the recording of the Subordination
Notice shall be subject and subordinate to this Lease unless
Landlord and the holder of any such subsequent mortgage and
the holders of all mortgages prior to such subsequent
mortgage elect to subordinate this Lease to such subsequent
mortgage and to any and all advances thereafter made
thereunder and to the interest of the holder thereof in the
Premises, such election to be exercisable by Landlord and
all such holders by filing with the appropriate recording
office (a) notice of such election and (b) an agreement
between the holder of such subsequent mortgage and Tenant,
consented to by holders of all mortgages having priority
over such subsequent mortgage, by the terms of which such
holder will agree to recognize the rights of Tenant under
this Lease and to accept Tenant as tenant of the Premises
under the terms and conditions of this Lease in the event of
acquisition of title by such holder through foreclosure
proceedings or otherwise and Tenant will agree to recognize
the holder of such subsequent mortgage as Landlord in such
event, which
14
agreement shall be made expressly to bind and inure to the
successors and assigns of Tenant and of such holder and upon
anyone purchasing said Premises at any foreclosure sale
brought by such holder. Tenant and Landlord agree to
execute and deliver any appropriate instruments necessary to
carry out the agreements contained in this Section 9.15.2.
9.15.3 Notice to Mortgagee
-------------------
No act or failure to act on the part of Landlord which would
entitle Tenant under the terms of this Lease, or by law, to
be relieved of Tenant's obligations hereunder or to
terminate this Lease, shall result in a release or
termination or such obligations or a termination of this
Lease unless (i) Tenant shall have first given written
notice of Landlord's act or failure to act to ▇▇▇▇▇▇▇▇'s
mortgagees of record (provided Tenant has been given written
notice of the identity of such mortgagee), if any,
specifying the act on the part of Landlord which could or
would give basis to Tenant's rights; and (ii) such
mortgagees, after receipt of such notice, have had the same
opportunity to cure such default as afforded Landlord; but
nothing contained in this Section 9.15.3 shall be deemed to
impose any obligation on any such mortgagees to correct or
cure any such condition.
9.15.4 Other Provisions Regarding Mortgagees
-------------------------------------
If this Lease or the Fixed Rent and Additional due hereunder
is assigned to a mortgagee as collateral security for a
loan, no such mortgagee shall be deemed to have assumed any
of Landlord's obligations hereunder solely as a result of
said assignment. A mortgagee to whom this Lease has been so
assigned shall be deemed to have assumed such obligations
only if (i) by the terms of the instrument of assignment
such mortgagee specifically elects to assume such
obligations or (ii) such mortgagee has (a) foreclosed its
mortgage, (b) accepted a deed in lieu thereof, or (c) taken
possession of the Premises by entry or otherwise. Even if
such mortgagee assumes the obligations of Landlord
hereunder, such mortgagee will be liable for breaches of any
Landlord's obligations hereunder only to the extent such
breaches occur or continue during the period of ownership by
the mortgagee after foreclosure (or any conveyance by a deed
in lieu thereof), all as set forth hereof. Tenant may from
time to time, as mortgagees requires, be required to provide
mortgagee with certain financial information pertaining to
the Tenant as mortgagee may reasonably request.
9.16 SIGNAGE
To protect the architectural integrity and appearance of the Building,
all signs or lettering, if any, visible from the exterior of the
Building or from the lobby, public corridors or any other common area
of the Building must be submitted to Landlord for written approval of
the size, color, design, and location of such signs or lettering
before installation.
Landlord agrees that it shall include ▇▇▇▇▇▇'s name and location in
any standard Building directory at the sole cost and expense of the
Landlord. ▇▇▇▇▇▇ agrees to allow ▇▇▇▇▇▇▇▇ to use its name and logo in
publicity, announcements of tenancy and marketing in connection with
the Project.
9.17 SECURITY DEPOSIT - $20,000.00
In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease
agreement, the security deposit shall be returned to Tenant, , after
the date fixed as the end of the lease agreement and after delivery of
the entire possession of the Leased Premises to Landlord.
9.18 INTENTIONALLY OMITTED
9.19 FORCE ▇▇▇▇▇▇
In the event that Landlord or Tenant shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason
of Force ▇▇▇▇▇▇, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act
shall be extended for a period equivalent to the period of such delay;
provided, however, unless such Force ▇▇▇▇▇▇ event shall be in a nature
of earthquake, hurricane, or other like disaster, the party seeking
such delay shall promptly notify the other party to benefit from the
terms hereof.
For the purposes of this Lease Force ▇▇▇▇▇▇ shall be defined as; Acts
of God, strikes, lockouts, labor troubles, inability to provide
materials, failure of power, restrictive legal requirements, riots and
insurrection, acts of public
15
enemy, wars, earthquakes, hurricanes or other natural disasters,
fires, explosions, any act, failure to act, or default of the other
party of this Lease.
EXECUTED as a sealed instrument on the day and year first above
written.
WITNESSES: WELLESLEY/ROSEWOOD ▇▇▇▇▇▇▇ ▇▇▇▇▇
LIMITED PARTNERSHIP
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------- ----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Project Director
WITNESSES: SOFTLOCK SERVICES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------- ----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: CEO
16
EXHIBIT A
TENANT'S SPACE PLAN
-------------------
17
EXHIBIT B
LANDLORD'S SERVICES
-------------------
Landlord shall pay the following sums in full with respect to the premises:
1. All costs for providing reasonable HVAC (whether by consumption of
oil, natural gas, common area electricity or otherwise). Reasonable to
be defined as a complete year round heating, ventilating and air
conditioning system as required to provide a uniform temperature of 72
degrees in all areas of the floor with 10 degrees outside for heating
and 75 degrees with 89 degrees outside for cooling.
2. All costs for providing on-going electricity to the common areas.
3. All costs for providing water and/or sewer to the premises.
4. All costs for snow plowing and/or shoveling to provide Tenant and
Tenants customers and/or licensees access to the premises.
5. All costs for cleaning of common areas.
6. All HVAC systems will be operational from 7:30 a.m. to 7:30 p.m.
Monday through Friday and 8:30 a.m. to 1:00 p.m. on Saturdays. Additional
service will be provided on an individual basis when requested by the
Tenant with 24 hour notice to Landlord for Monday through Saturday use and
48 hour notice for Sunday use and any additional charges incurred thereby,
will be assessed to the Tenant. There will be a fifty dollar ($50.00) per
hour charge, with a four (4) hour minimum for weekend use, for said
requested service. Tenant will be billed, as Additional Rent, for requested
HVAC service and payment for such will be due with the next monthly rent
installment .
18
EXHIBIT C
TENANT ESTOPPEL LETTER
TO: Capital Company of America LLC and its successors and assigns
(collectively, the "Lender")
RE: Premises known as and located at Building No. Five of Clock Tower
Place (a/k/a ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇), ▇▇▇▇▇▇▇, Massachusetts (the "Building")
The undersigned, SoftLock Services, Inc. ("Tenant"), does hereby
certify to the Lender as follows:
1. Tenant is the tenant under that certain lease dated ________,
199_, between ▇▇▇▇▇▇ and Wellesley/Rosewood ▇▇▇▇▇▇▇ ▇▇▇▇▇ Limited
Partnership, as landlord ("Landlord"), as amended, modified or
supplemented by__________, leasing a portion of the Building (the
"Premises") as more particularly described in the said lease.
Said lease, as so amended, modified, or supplemented, is
hereinafter referred to as the "Lease".
2. The Lease is in full force and effect and, except as set forth
above, has not been amended, modified or supplemented.
3. The Lease represents the entire agreement between ▇▇▇▇▇▇ and
Landlord with respect to the leasing and occupancy of the
Premises, and there are no other agreements or representations of
any kind between Landlord and Tenant with respect thereto.
Without limiting the foregoing, Tenant does not have any rights
of first refusal for additional space, options to increase or
relocate its space or options to purchase the Premises or any
interest therein.
4. All obligations of Landlord to be performed or complied with by
Landlord through the date hereof have been fully performed and
complied with including, without limitation, any obligations of
Landlord to prepare the Premises for Tenant's occupancy, and
there exists no default or condition, state of facts or event
that, with the passing of time or the giving of notice, or both,
would constitute a default by Landlord in the performance of its
obligations under the Lease.
5. All obligations of Tenant to be performed or complied with by
Tenant through the date hereof have been fully performed and
complied with and there exists no default or condition, state of
facts or event that, with the passing of time or the giving of
notice, or both, would constitute a default by Tenant in the
performance of its obligations under the Lease.
6. The term of the Lease commences on ________ 199_, and shall
expire on ________,____, unless sooner terminated in accordance
with the terms of the Lease. Tenant has no rights to extend the
term of the Lease except as set forth below:
7. The current rent under the Lease is $_________ per month and has
been paid for the period through __________. All additional rent
and other charges have been paid for the current periods.
8. There are no existing offsets or defenses by Tenant to the
payment of rent and other charges payable by Tenant or otherwise
to the enforcement by Landlord of the Lease.
9. No security deposit or other security has been given to Landlord
under the Lease except as follows:
10. There is no remaining free rent period or any unexpired
concession in or abatement of rent other than set forth in the
Lease.
11. Tenant is in sole possession of the Premises and has not
assigned, sublet, pledged, mortgaged, transferred or otherwise
conveyed all or any portion of its interest in the Premises or
the Lease.
12. There are no actions, whether voluntary or otherwise, pending
against Tenant under the bankruptcy or insolvency laws of the
United States or of any state or territory of the United States.
19
13. Tenant understands and acknowledges that this certificate is
delivered to, and shall be relied on by, the Lender in connection
with an extension of a loan financing the Landlord's interest in
the Building and the land on which it stands (the "Mortgaged
Property").
14. Tenant agrees to promptly provide the Lender at its offices at
Two World Financial Center, New York, New York 10281, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇, with copies of any notices of
default given by or received by Tenant with respect to the Lease
and/or the Premises.
SoftLock Services, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: CEO
Dated:_____________________
20
EXHIBIT D
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
This Subordination, Non-Disturbance and Attornment Agreement (this
"Agreement"), made as of _________________, 199__, by and between THE
CAPITAL COMPANY OF AMERICA LLC, a corporation organized under the laws of
Delaware and having an address at Two World Financial Center, New York, New
York 10281 (the "Lender"), and SOFTLOCK SERVICE, INC., having an address at
Five Clock ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Tenant");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, by a lease (as the same may be amended from time to time, the
"Lease") dated __________, 199_, between Wellesley/Rosewood ▇▇▇▇▇▇▇ ▇▇▇▇▇
Limited Partnership (the "Landlord"), as landlord, and the Tenant, as
tenant, the Landlord leased to the Tenant a certain portion of the building
known as and located at Building No. Five of Clock Tower Place (a/k/a ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, being more fully described in said
Lease (the "Premises");
WHEREAS, the Landlord has executed and delivered to the Lender a
mortgage note in the original principal amount of Fifteen Million
($15,000,000) Dollars, which note is secured by, among other things, a
mortgage or deed of trust (which mortgage or deed of trust, and all
amendments, renewals, increases, modifications, replacements,
substitutions, extensions, spreaders, restatements and consolidations
thereof and all re-advances thereunder and additions thereto is referred to
as the "Mortgage") encumbering certain land being more particularly
described in Schedule A attached hereto (the "Land"), together with the
buildings and other improvements located or to be located thereon (such
buildings and other improvements and the Land, collectively, the "Mortgaged
Property") including, without limitation, the Premises.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein have agreed and hereby agree as follows:
1. The Lease, as the same may hereafter be modified, amended or
extended, is and shall be subject and subordinate in each and
every respect to the Mortgage, to all renewals, modifications,
replacements and extensions thereof, to all terms, conditions and
provisions thereof and to each and every advance heretofore made
or hereafter made under the Mortgage.
2. The Lender agrees that if any action or proceeding is commenced
by the Lender for the foreclosure of the Mortgage or the sale of
the Mortgaged Property, the Tenant shall not be named as a party
therein (unless required by law), and the sale of the Mortgaged
Property in any such action or proceeding and the exercise by the
Lender of any of its other rights under the Mortgage, or under
the note secured by the Mortgage, shall be made subject to all
rights of the Tenant under the Lease, provided that at the time
of the commencement of any such action or proceeding and at the
time of any such sale or exercise of any such other rights, the
tenant shall not be in default under the terms, covenants or
conditions of the Lease or of this Agreement on the Tenant's part
to be observed or performed.
3. The Tenant shall concurrently give the Lender copies of all
notices and other communications given by the tenant to the
Landlord relating to (i) defaults or alleged defaults on the part
of the Landlord or the Tenant under the Lease, (ii) any
violations of any ordinances, statutes, laws, rules, codes,
regulations or requirements of any governmental agency, and (iii)
any assignment or subletting of all or any portion of the
Premises.
4. In the event of any act or omission by the Landlord which would
give the Tenant the right, either immediately or after the lapse
of a period of time, to terminate the Lease, or to claim a
partial or total eviction, the Tenant will not exercise any such
right (i) until it has sent written notice of such act or
omission to the Lender as provided herein, and (ii) unless the
Lender shall have failed within sixty (60) days after receipt of
such notice to cure such default or, if such default is not
reasonably susceptible of cure within such sixty (60) days, the
Lender shall not have commenced the cure of such default within
sixty (60) days of receipt of such notice and thereafter
diligently pursued such action.
5. In the event that the interest of the Landlord is transferred by
reason of, or assigned in lieu of foreclosure or other
proceedings for, enforcement of the Mortgage, then subject to the
provisions of this Agreement, the Lease shall
21
nevertheless continue in full force and effect and, upon the
written request of the Lender, the tenant shall attorn to the
Lender and shall recognize the Lender as its landlord. Although
the foregoing provision shall be self-operative, in order to
confirm such attornment, upon the request of the Lender, the
Tenant shall execute and deliver to the Lender (i) an agreement
of attornment in form and content reasonably satisfactory to the
Lender, at the Tenant's sole cost and expense, confirming the
foregoing attornment and agreeing to perform all the terms
covenants and conditions of the Lease on the Tenant's part to be
performed for the benefit of such Lender with the same force and
effect as if such Lender were the Landlord originally named in
this Lease or (ii) a new lease with the Lender, as landlord, for
the remaining term of the Lease and otherwise on the same terms
and conditions and with the same options, if any, then remaining.
Nothing herein contained shall be construed however, to obligate
the Lender to cure any default by the Landlord under the Lease
occurring prior to any date on which the Lender shall succeed to
the rights of the Landlord, it being expressly agreed that under
no circumstances shall the Lender be obligated to remedy any such
default.
6. If the Lender shall succeed to the interest of the Landlord, the
Lender shall have no personal liability as successor to the
Landlord, and the Tenant shall look only to the estate and
property of the Lender in the Mortgaged Property of the proceeds
thereof for the satisfaction of the Tenant's remedies for the
collection of a judgement (or other judicial process) requiring
the payment of money in the event of any default by the Lender as
landlord under the Lease. In addition, the Lender as holder of
the Mortgage or as landlord under the Lease if it succeeds to
that position, shall in no event (i) be liable to the Tenant for
any act or omission of any prior landlord, (ii) be subject to any
offset or defense which the tenant might have against any prior
landlord, (iii) be liable to the Tenant for any liability or
obligation of any prior landlord occurring prior to the date that
the Lender or any subsequent owner acquires title to the
Premises, or (iv) be liable to the Tenant for any security or
other deposits given to secure the performance of the Tenant's
obligations under the Lease, except to the extent that the Lender
shall have acknowledged actual receipt of such security or other
deposits in writing. No other property or assets of the Lender
shall be subject to levy, execution or other enforcement
procedures for the satisfaction of the Tenant's remedies under or
with respect to the Lease, the relationship of the landlord and
the tenant thereunder or the Tenant's use or occupancy of the
Premises.
7. All notices and other communications hereunder shall be sent by
certified or registered mail (postage prepaid, return receipt
requested) to the Lender at the address set forth above,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇, or to the Tenant at the
address set forth in the Lease, or to such other address or
person as may be specified in a notice sent in accordance with
the provisions of the Section 7, and shall be deemed given when
received at the addresses specified above.
8. No prepayment of rent or additional rent due under the Lease of
more than one month in advance shall be binding upon the Lender,
as holder of the Mortgage or as landlord under the Lease if the
Lender succeeds to that position, unless consented to by the
lender, and from and after the date hereof, no amendment,
modification, surrender or cancellation of the Lease shall be
binding upon the Lender, as holder of the Mortgage or as landlord
under the Lease if the Lender succeeds to that position, unless
such amendment, modification, surrender or cancellation is done
in compliance with the terms of the Mortgage.
9. This Agreement shall apply to, bind and inure to the benefit of
the parties hereto and their respective successors and assigns.
As used herein, the term "Tenant" shall mean and include the
present tenant under the Lease, any permitted subtenant under the
Lease, any permitted assignee of the lease and any successor of
any of them. The term "Lender" as used herein shall include the
holder of the Mortgage, the successors and assigns of the Lender,
and any person, party or entity which shall become the owner of
the Mortgaged Property by reason of a foreclosure of the Mortgage
or the acceptance of a deed or assignment in lieu of foreclosure
or other proceedings for enforcement of the Mortgage or
otherwise. The term "Landlord" as used herein shall mean and
include the present landlord under the Lease and such landlord's
predecessors and successors in interest under the Lease.
10. Notwithstanding anything to the contrary contained in this
Agreement or in the Lease, the Tenant agrees that (i) the
provisions of the Mortgage shall govern with regard to casualty
insurance proceeds and condemnation awards and (ii) in the event
the casualty insurance proceeds or condemnation awards are not
made available for restoration of the Premises, such proceeds or
awards shall be paid to the Lender.
11. This Agreement may not be modified in any manner or terminated
except by an instrument in writing executed by the parties
hereto.
22
12. This Agreement shall be governed by and construed in accordance
with the laws of the state of Massachusetts.
Both the Tenant and the Lender hereby irrevocably waive all rights to
trial by jury in any action, proceeding or counterclaim arising out of
or relating to the Lease or this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE CAPITAL COMPANY OF AMERICA LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SOFTLOCK SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: CEO
STATE OF
New York ,ss. March 12, 1999
Then personally appeared before me the above named ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Vice President of THE CAPITAL COMPANY OF AMERICA LLC, a Delaware
corporation, and acknowledged the foregoing instrument to be his free act
and deed and the free act and deed of said corporation, before me,
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public
My Commission expires: January 30, 2001
STATE OF
Middlesex ,ss. March 4, 1999
Then personally appeared before me the above named ▇▇▇▇▇ ▇▇▇▇▇, CEO
of SOFTLOCK SERVICES, INC., and acknowledged the foregoing instrument to be
his free act and deed and the free act and deed of said corporation, before
me,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Notary Public
My Commission expires: December 9, 1999
23
EXHIBIT E
---------
RULES AND REGULATIONS
1. Heating, lighting and plumbing: The Landlord should be notified at
once of any trouble with heating, lighting or plumbing fixtures.
Tenants must not leave the doors of the Premises unlocked at night.
2. The sidewalks, entrances, halls and stairways shall not be obstructed
by any Tenant or used for any purposes other than ingress and egress
to and from their respective Premises, and no articles or rubbish
shall be left herein.
3. No toilet fixture shall be used for any purpose other than that for
which it is intended, and no sweepings, rubbish, rags, ashes or other
substances shall be thrown herein.
4. The weight and position of all safes and heavy equipment or machines
shall be subject to the approval of the Landlord.
5. Lettering on doors, tablets and building directory shall be subject to
the approval of the Landlord; no lettering shall be allowed on outside
windows.
6. No wires for telephone service, electric lights, messenger service or
for any other purpose shall be put in the Premises without the consent
of the Landlord.
7. No glass in doors or elsewhere through which light is admitted in to
any part of the building shall be obstructed.
8. No animals or birds of any kind shall be kept, allowed in or about the
Building any time for any reason other those granted by law.
9. All freight, furniture, etc. must be received and delivered through
entrances to the Building designated for such purpose unless otherwise
authorized by the Landlord.
10. Nothing shall be thrown from or taken in through the windows, nor
shall anything be left outside the Building on the window ▇▇▇▇▇ of the
Premises.
11. No person shall loiter in the halls, corridors, or lavatories.
12. The Landlord, its agents and employees shall have access at reasonable
times to perform their duties in the maintenance and operation of the
Premises, subject to the terms and conditions of this Lease.
13. No Tenant shall use any method of heating other than that provided for
in the Tenant's Lease without the consent of the Landlord.
14. Any damage caused to the Building or the Premises or to any person or
property herein as a result of any breach of any of the rules and
regulations by the Tenant shall be borne by the Tenant.
15. The Landlord reserves the right to make any such other and further
rules and regulations as, in its judgment may from time to time be
necessary for maintaining the safety and cleanliness of the Premises
and Building for the preservation of good order therein, provided the
same do not materially restrict or inhibit Tenant's rights under this
Lease.
24
EXHIBIT F
CLEANING SPECIFICATIONS
-----------------------
25
