Exhibit 10.6
XXXXX RESEARCH CENTER
OFFICE LEASE
WORK MANAGEMENT SOLUTIONS
Made this 6th day of May, in the year one thousand nine hundred and ninety seven
by and between Xxxxx Avenue Senior Holdings LLC (hereinafter called the
"Landlord", which expression shall include its successors and assigns where the
context so admits), and Work Management Solutions, a Delaware corporation
(hereinafter called the "Tenant", which expression shall include its successors
and assigns where the context so admits).
WITNESSETH, that in consideration of the rent and covenants herein reserved and
contained on the part of Tenant to be paid, performed and observed, Landlord
does hereby demise and lease unto Tenant, and Tenant does hereby lease from
Landlord the Premises described in Article II hereof.
W I T N E S S E T H :
ARTICLE 1
Reference Data and Definitions
1.01. Reference Data.
LANDLORD'S REPRESENTATIVE: Xxxxxxxx X. Xxxxxxxxx
LANDLORD'S ADDRESS (FOR PAYMENT OF RENT):
Xxxxx Avenue Deposit Account # 00-00-00000
c/o Federal Savings Bank
X.X. Xxx 0000
Xxxxxxx, XX 00000
LANDLORD'S ADDRESS (FOR NOTICES AND COMMUNICATIONS):
Saracen Companies, Inc.
Attn: Xxxxxxxx Xxxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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TENANT'S ADDRESS (FOR NOTICE AND BILLING): 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
TENANT'S REPRESENTATIVE: Xxxx Xxxxx
BUILDING ADDRESS: 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
LEVEL: One
RENTABLE AREA OF PREMISES: 11,946 Rentable Square Feet
(Rent only on 8,000 r.s.f. through 2/28/98)
GROSS AREA OF THE BUILDING: 228,250 Square Feet (Premises Plan enclosed)
TENANT'S SPACE PLAN DELIVERY DATE: May 5, 1997
TERM COMMENCEMENT DATE: July 1, 1997
RENT COMMENCEMENT DATE: July 15, 1997
LEASE TERMINATION DATE: July 31, 2002
INITIAL TERM: 5 YEARS
BASIC RENT: July 15, 1997 through February 28, 1998
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8,000 x $27.50 = $220,000/Year.; $18,333.33/Month
March 1, 1998 through July 31, 1998
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11,946 x $27.50 = $328,515/Year; $27,376.25/Month
August 1, 1998 through July 31, 1999
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11,946 x $28.50 = $340,461/Year; $28,371.75/Month
August 1, 1999 through July 31, 2000
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11,946 x $29.50 = $352,407/Year; $29,367.25/Month
August 1, 2000 through July 31, 2001
------------------------------------
11,946 x $30.50 = $364,353/Year; $30,362.75/Month
August 1, 2001 through July 31, 2002
------------------------------------
11,946 x $31.50 = $376,299/Year; $31,358.25/Month
1 1/2% penalty automatically assessed if rent not paid within ten
(10) days of due date.
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OPTION TERM: Tenant shall have one three (3) year renewal option at Fair
Market Value for the period of August 1, 2002 through July 1,
2005 (the "Extended Expiration Date").
OPERATING EXPENSE BASE: $(1997 Actual Base Year) Per Square Foot of Rentable
Area Per Year
KEYS: Landlord will provide Tenant with five keys with no charge to Tenant.
Additional keys will be charged to Tenant.
SECURITY DEPOSIT: $18,333.33 (One Month Rent)
GUARANTOR: N/A
PERMITTED USES: GENERAL OFFICE, SALES, TRAINING AND RESEARCH AND DEVELOPMENT
CONSISTENT WITH A FIRST CLASS OFFICE BUILDING.
1.02. General Provisions. For all purposes of this Lease unless otherwise
expressed and provided herein or therein or unless the context otherwise
requires:
(a) The words herein, hereof, hereunder and other words of similar import refer
to this Lease as a whole and not to any particular article, section or other
subdivision of this Lease.
(b) A pronoun in one gender includes and applies to the other gender as well.
(c) Each definition stated in Section 1.01 or 1.03 of this Lease applies equally
to the singular and the plural forms of the term or expression defined.
(d) Any reference to a document defined in Section 1.03 of this Lease is to such
document as originally executed, or, if modified, amended or supplemented in
accordance with the provisions of this Lease, to such document as so modified,
amended or supplemented and in effect at the relevant time of reference thereto.
(e) All accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles.
(f) All references in Section 1.01 hereof are subject to the specific
definitions thereof (if any) in Section 1.03 hereof.
1.03. Terms Defined. Each term or expression set forth above in Section 1.01
hereof or below in this Section 1.03 has the meaning stated immediately after
it.
Additional Rent. All sums and other charges (other than Basic Rent) due from
Tenant to Landlord or incurred by Landlord as the result of a Default.
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Additional Services. Services provided to Tenant or in respect of the Premises
which are not described in Exhibit A hereto.
Adjusted Operating Expense Base. The amount determined by multiplying the
Operating Expense Base by the Adjustment Factor.
Adjustment Factor. With respect to the First Calendar Year and the Last Calendar
Year, the percentage computed by dividing (i) the number of days of each such
period falling within the Lease Term by (ii) 365.
Affiliate. With respect to any specified Person, any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, the
term control when used with respect to any specified Person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms controlling and controlled by have meanings correlative to the
foregoing.
Authorizations. All franchises, licenses, permits and other governmental
consents issued by Governmental Authorities pursuant to Legal Requirements which
are or may be required for the use and occupancy of the Premises and the conduct
or continuation of a Permitted Use therein.
Basic Rent. Rent agreed upon by Landlord and Tenant and referred to in Section
1.01.
Basic Services. The services described in Exhibit A hereto.
Building. The building currently existing on the Land.
Building Standard Tenant Finishes. The standards set by Landlord for the quality
of work done on the Premises described in Exhibit E. (Turnkey on mutually agreed
to Plan.)
Business Day. A day which is not a Saturday, Sunday or other day on which banks
in Boston, Massachusetts, are authorized or required by law or executive order
to remain closed.
Calendar Year. The First Calendar Year, the Last Calendar Year and any full
calendar year (January 1 through December 31) occurring during the Lease Term.
Common Areas. All areas devoted to the common use of occupants of the Building
or the provision of Services to the Building as agreed and represented in the
Space Plan, including but not limited to the atrium, all corridors, elevator
foyers, air shafts, elevator shafts and elevators, stairwells and stairs,
restrooms, mechanical rooms, janitor closets, vending areas and other similar
facilities for the provision of Services or the use of all occupants of
multi-tenant floors or all occupants of the Building.
Control. As defined in the definition of Affiliate.
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Corporation. A corporation, company, association, business trust or similar
organization wherever formed.
First Calendar Year. The partial Calendar Year period commencing on the Term
Commencement Date and ending on the next succeeding December 31.
Force Majeure. Acts of God, strikes, lock outs, labor troubles, inability to
procure materials, failure of power, restrictive Legal Requirements, riots and
insurrection, acts of the public enemy, wars, earthquakes, hurricanes and other
natural disasters, fires, explosions, any act, failure to act or Default of the
other party to this Lease or any other reason beyond the control of any party to
this Lease; provided, however, lack of money shall not be deemed such a cause.
Governmental Authority. United States of America, the Commonwealth of
Massachusetts, the City of Newton, and any political subdivision thereof and any
agency, department, commission, board, bureau or instrumentality of any of them.
Insolvency. The occurrence with respect to any Person of one or more of the
following events: the death, dissolution, termination of existence (other than
by merger or consolidation), insolvency, appointment of a receiver for all or
substantially all of the property of such Person, the making of a fraudulent
conveyance or the execution of an assignment or trust mortgage for the benefit
of creditors by such Person, or the filing of a petition of bankruptcy or the
commencement of any proceedings by or against such Person under a bankruptcy,
insolvency or other law relating to the relief or the adjustment of
indebtedness, rehabilitation or reorganization of debtors; provided that if such
petition or commencement is involuntarily made against such a Person and is
dismissed within sixty (60) days of the date of such filing or commencement,
such events shall not constitute an insolvency hereunder.
Insurance Requirements. All terms of any policy of insurance maintained by
Landlord or Tenant and applicable to (or affecting any condition, operation, use
or occupancy of) the Building or the Premises or any part or parts of either and
all requirements of the issuer of any such policy and all orders, rules,
regulations and other requirements of the National Board of Fire Underwriters
(or any other body exercising similar functions).
Land. The Land at 00/00/00 Xxxxx Xxxxxx, in the City of Newton, Commonwealth of
Massachusetts.
Landlord's Contribution. The amount contributed by Landlord as a credit toward
the cost of finishing the Premises shown on Exhibit E.
Landlord's Work. The work to be done by Landlord with respect to the Premises
described in the Work Letter (see Exhibit E).
Last Calendar Year. The partial Calendar Year commencing on January 1 of the
Calendar Year in which the Lease Termination Date occurs of the Lease Term and
ending on the Lease Termination Date.
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Lease Term. The period commencing on the Term Commencement Date and ending on
the Lease Termination Date.
Lease Termination Date. The earlier to occur of (1) the Stated Expiration Date,
(2) the termination of this Lease by Landlord as the result of an Event of
Default, (3) the termination of this Lease pursuant to Articles 17 (Damage or
Destruction) or 18 (Eminent Domain) hereof.
Lease Year. A period commencing on the Term Commencement Date (or an anniversary
thereof) and ending on the day before the next succeeding anniversary thereof.
For example, the first Lease Year is a period commencing on the Term
Commencement Date and ending on the day before the first anniversary thereof.
The last Lease Year shall end on the Lease Termination Date.
Legal Requirements. All statutes, codes, ordinances (and all rules and
regulations thereunder), all executive orders and other administrative orders,
judgments, decrees, injunctions and other judicial orders of or by any
Governmental Authority which may at any time be applicable to parts of
appurtenances of the Premises or Building or to any condition or use thereof and
the provisions of all Authorizations.
Occupancy Arrangement. With respect to the Premises or any portion thereof or
the Lease, and whether (a) written or unwritten or (b) for all or any portion of
the Lease Term, an assignment, a sublease, any tenancy at will, a tenancy at
sufferance, or any other arrangement (including but not limited to a license or
concession) pursuant to which a Person occupies the Premises for any purpose.
Operating Expense Base. Set forth in Section 1.01 as Landlord's contribution
towards the payment of Tenant's operating expenses. Tenant agrees to pay any
operating expenses on an annual basis in excess of the 1997 Actual Operating
Expense Base.
Operating Expenses. All expenses, costs, and disbursements of every kind and
nature which Landlord shall pay or become obligated to pay in connection with
the ownership, operation and maintenance of the Building (including all
facilities in operation on the Term Commencement Date and such additional
facilities in subsequent years as may be reasonably determined by Landlord to be
necessary or beneficial for the operation of the Building) and Land and the
provision of Basic Services, including but not limited to (a) wages, salaries,
fees and cost to Landlord of all Persons engaged in connection therewith,
including all Taxes, insurance, and benefits relating thereto, (b) the cost of
(i) all supplies and materials, electricity and lighting, (ii) water, heat, air
conditioning, and ventilating for the Building, (iii) all maintenance,
janitorial, and service agreements, (iv) all insurance, including the cost of
casualty and liability insurance applicable to the Building consistently applied
and Landlord's personal property used in connection therewith, (v) repairs, snow
plowing and general maintenance, (vi) capital items which are primarily for the
purpose of reducing Operating Expenses or which may be required by a
Governmental Authority, amortized over the reasonable life of the capital items
with the reasonable life and amortization schedule being determined by Landlord
in accordance with generally accepted accounting principles, (vii) all real
estate taxes or other taxes associated
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with the Building, (viii) pursuing an application for an abatement of taxes
pursuant to Section 6.06 hereof to the extent not deducted from the abatement,
if any, received, (ix) independent auditors, (x) professional fees related to
the operation of the property including accounting, engineering and legal, (xi)
office space for the manager of the Building, (c) management fees and (d) a
share (equal to percentage computed by a fraction the numerator of which is the
Gross Area of the Building and the denominator of which is the aggregate Gross
Area of all constructed buildings (including the Building) at 00/00/00 Xxxxx
Xxxxxx, Xxxxxx, XX of the cost to Landlord of operating, repairing and
maintaining exterior common areas and facilities of 00/00/00 Xxxxx Xxxxxx,
Xxxxxx, XX (of which development the Building is a part) which may not be
located entirely on the Land but which are available for use by Tenant,
including but not limited to snow removal, landscaping, security and maintenance
for common roadways and open areas. Operating Expenses shall not include (i)
capital items except as provided above; (ii) specific costs billed to and paid
by specific tenants; (iii) costs of tenant alterations; (iv) interest and
principal payments on mortgages; (v) advertising expenses and leasing
commissions; (vi) any cost or expenditure for which Landlord is reimbursed
whether by insurance proceeds or otherwise; (vii) the cost of any kind of
service furnished to any other tenant in the Building which Landlord does not
generally make available to all Tenants in the Building; (vii) legal expenses of
negotiating and enforcing leases; and (ix) depreciation. Operating expenses
shall be determined on the accrual basis in accordance with generally accepted
accounting principles which shall be consistently applied. (See Exhibit D
attached hereto.)
Parking. Tenant shall have five (5) assigned parking spaces, located nearest to
the Premises and previously assigned to Guardian Insurance.
Partial Taking. Any Taking which is not a Total Taking.
Permitted Exceptions. Any liens or encumbrances on the Premises in the nature of
(a) liens for Taxes assessed but not yet due and payable, (b) easements,
reservations, restrictions and rights of way encumbering or affecting the Land
on the date of this Lease, (c) the rights of Landlord, Tenant and any other
Persons to whom Landlord has granted such rights to exercise in common with
respect to the Land and the Common Areas the rights granted to Tenant hereunder,
(d) mortgages of record, and (e) Title Conditions, provided that the same do not
interfere with Tenant's rights hereunder.
Person. An individual, a Corporation, a company, a voluntary association, a
partnership, a trust, an unincorporated organization or a government or any
agency, instrumentality or political subdivision thereof.
Premises. The space in the Building shown and outlined in Exhibit E hereto.
Proceeds. With respect to any Taking or occurrence described in Article 17
hereof, with respect to which any Person is obligated to pay any amount to or
for the account of Landlord, the aggregate of (i) all sums payable or receivable
under or in respect of any insurance policy, and (ii) all sums or awards payable
in respect to a Taking.
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Prohibited Occupancy Arrangement. An Occupancy Arrangement which provides for
any rent or other payment based in whole or in part on the net income or profits
derived by any Person from the Premises.
Rent. Basic Rent and all Additional Rent.
Rent Commencement Date. Set at July 15, 1997, but shall be extended for the
length of any period which Landlord delays the completion of the Landlord's Work
beyond July 1,1997.
Rentable Area of the Premises. The number of square feet stated in Section 1.01,
whether the same should be more or less as a result of minor variations
resulting from actual construction and completion of the Building or Premises.
Rules and Regulations. Reasonable Rules and Regulations promulgated by Landlord
and uniformly applicable to Persons occupying the Building regulating the
details of the operation and use of the Building. The initial Rules and
Regulations are attached hereto as Exhibit C.
Services. Basic Services and Additional Services.
Special Work. Work done in or with respect to the Premises which is not part of
Landlord's Work or the cost of which exceeds Landlord's Contribution.
Stated Expiration Date. The later to occur of (i) the day before the 5th
anniversary of the Term Commencement Date, or (ii) the Extended Expiration Date
(if Tenant exercises the Extension Option).
Substantial Completion Date. The date on which the Premises together with the
appurtenant areas of the Building necessary for access and service thereto, have
been completed in accordance with Article 7 hereof except for items of work and
adjustment of equipment and fixtures which are not necessary to make the
Premises reasonably tenantable for the Permitted Uses and because of season or
weather or nature of the item cannot practicably be done at the time.
Taking. The taking or condemnation of title to all or any part of the Land or
the possession or use of the Building or the Premises by a competent Person for
any public use or purpose or any proceeding or negotiations which might result
in such taking or any sale or lease in lieu of or in anticipation of such a
taking.
Taxes. All taxes, special or general assessments, real estate, water rents,
rates and charges, sewer rents and other impositions and charges imposed by
Governmental Authorities of every kind and nature whatsoever, extraordinary as
well as ordinary and each and every installment thereof which shall or may
during the term of this Lease be charged, levied, laid, assessed, imposed,
become due and payable or become liens upon or for or with respect to the Land
or any part thereof and the Building or the Premises, appurtenances or equipment
owned by Landlord thereon or therein or any part thereof or on this Lease under
or by virtue of all present
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or future Legal Requirements and any tax based on a percentage fraction or
capitalized value of the Rent (whether in lieu of or in addition to the taxes
hereinbefore described). Taxes are included in the Operating Expense Base (see
definition of Operating Expense Base and Article 6). Taxes shall not include
inheritance, estate, excise, succession, transfer, gift, franchise, income,
gross receipt, or profit taxes except to the extent such are in lieu of or in
substitution for Taxes as now imposed on the Building, the Land, the Premises or
this Lease.
Tenant. As defined in the preamble hereof.
Tenant's Share. Tenants pro rata share of the Building. Tenant's share is
calculated by dividing it's Rentable Area of the Premises by Gross Area of the
Building (228,250 s.f.).
Term Commencement Date. The earlier of (a) the Substantial Completion Date, (b)
any other date for such commencement determined in accordance with said Article
7, or (c) the date on which Tenant first occupies the Premises for the Permitted
Uses.
Title Conditions. All covenants, agreements, restrictions, easements and
declarations of record on the date hereof so far as the same may be from time to
time in force and applicable.
Total Taking. (i) a Taking of: (a) the fee interest in all or substantially all
of the Building or (b) such title to or easement in, over, under or such rights
to occupy and use any part or parts of the Building to the exclusion of Landlord
as shall have the effect, in the good faith judgment of the Landlord, of
rendering the portion of the Building remaining after such Taking (even if
restoration were made) unsuitable for the continued use and occupancy of the
Building for the Permitted Uses or (ii) a Taking of all or substantially all of
the Premises or such title to or easement in, on or over the Premises to the
exclusion of Tenant which in the good faith judgment of the Landlord prohibits
access to the Premises or the exercise by Tenant of any rights under this Lease.
Working Drawings. The Working Drawings for the finishing of the Premises
developed by Landlord and Tenant in accordance with the Work Letter, which shall
be substantially in the form attached hereto as Exhibit E.
Work Letter. The agreement between Landlord and Tenant with respect to the
finishing of the Premises, which shall be substantially in the form attached
hereto as Exhibit E.
ARTICLE 2
Premises; Appurtenances
2.01. Premises. Landlord hereby leases and lets to Tenant, and Tenant hereby
takes and hires from Landlord, upon and subject to the terms, conditions,
covenants and provisions hereof, the Premises subject to the Permitted
Exceptions. Landlord reserves the right to relocate within or without the
Premises pipes, ducts, vents, flues, conduits, wires and appurtenant fixtures
which service other parts of the Building; provided that such work is done in
such a manner that it does not unreasonably interfere with Tenant's use of the
Premises.
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2.02. Appurtenances. Tenant may exclusively use the Parking and use the Common
Areas and the Land as appurtenant to the Premises for the purposes for which
they were designed.
ARTICLE 3
Term
3.01. Term Commencement. The Lease Term shall commence on the Term Commencement
Date.
3.02. Termination. The Lease Term shall end on the Lease Termination Date unless
extended as provided for in Section 3.03 hereof. The term "Lease Year" as used
herein shall mean (i) the twelve (12) consecutive months following the
Commencement Date, except that if the Commencement Date does not fall on the
first day of the month, then the first Lease Year shall consist of the balance
of the month in which the Commencement Date falls, plus the twelve (12)
consecutive full months immediately thereafter, and (ii) each subsequent twelve
(12) month period during the Term (or portion thereof during the last year of
the Term), commencing with the anniversary of the first day of the first full
month of the first Lease Year.
3.03 Option to Extend Term. Tenant shall have the option to extend the Lease
Term for the Option Term. Tenant shall exercise its option to extend by giving
written notice to Landlord no later than 5:00 p.m. on the date which is 180 days
prior to the termination date of the Initial Term of this Lease that it desires
to so extend the Term ("Tenant's Notice"). After receipt of such notice and no
later than 150 days prior to the termination date of the Initial Term of this
Lease, Landlord shall provide Tenant with its determination of the fair market
rental value of the Premises for such Option Term (the "Landlord's
Determination"). Tenant shall have 30 days from the date of the Landlord's
Determination to accept or reject the rental rate provided for in the Landlord's
Determination. If the Tenant accepts the Landlord's Determination, then the
Tenant shall so notify Landlord and the rental rate set forth therein shall be
the "Fair Rental Value," and the amount of Basic Rent due for the Option Term.
If the Tenant rejects the Landlord's Determination, then the Tenant shall so
notify Landlord and Landlord shall thereafter have a right of first refusal to
lease the Premises. If at any time after receipt of the Tenant's Notice,
Landlord shall receive an offer to lease the Premises, which offer Landlord
shall desire to accept, Tenant shall have the right to Lease the Premises upon
the rental rate and terms as set forth in such offer. Upon receipt of any such
offer, Landlord shall notify Tenant of the terms of such offer. Tenant shall
have fifteen (15) days from receipt of such notice to elect to rent the Premises
upon the terms set forth therein, which election shall be deemed exercised only
upon receipt by Landlord of a notice from Tenant accept the rental rate within
said fifteen (15) day period. If Tenant shall waive or be deemed to have waived
its right of first refusal with respect to an offer, but such offer is not
consummated by Landlord entering into a lease for the Premises with the offer or
on the terms set forth in Landlord's notice, Tenant's right of first refusal as
set forth herein shall remain applicable to all subsequent offers.
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ARTICLE 4
Rent
4.01. Basic Rent. Tenant shall pay Landlord for the Premises, without offset or
deduction and without previous demand therefor, the Basic Rent as annual rent
for each Lease Year. Notwithstanding the preceding sentence, no Basic Rent shall
be due or payable hereunder prior to the Rent Commencement Date. Basic Rent
shall be paid in equal monthly installments in advance on the first day of each
calendar month during the Lease Term occurring after the Rent Commencement Date.
The first installment of Basic Rent shall be paid on the Rent Commencement Date.
Subsequent installments of Basic Rent shall be paid on the first day of every
calendar month thereafter. Basic Rent for partial months at the beginning or end
of the Lease Term shall be pro-rated and paid on the Rent Commencement Date and
the first day of the calendar month in which the Stated Expiration Date is to
occur.
4.02. Computation of Basic Rent. The Basic Rent for each of the first five (5)
Lease Years shall be as stated in Article 1.01 hereof. Notwithstanding the
preceding sentence, no Basic Rent shall be due or payable hereunder, nor shall
any Basic Rent accrue, prior to the Rent Commencement Date. The Basic Rent for
each Lease Year in the Extension Period shall be the greater of (i) Basic Rent
stated in Article 1.01 hereof, or (ii) the Fair Rental Value thereof determined
in accordance with Section 3.03 hereof. Basic Rent so determined shall be
exclusive of (and in addition to) amounts due hereunder for Taxes, Operating
Expenses and estimated costs of electrical service.
4.03. Late Penalty. Tenant agrees to pay a late charge of one and one-half (1
1/2%) percent per month of any monthly rental payment which is not made on or
before the 10th day of the month in which it is due. In addition, Tenant agrees
to pay Landlord's reasonable collection fees (including legal expenses) in the
event that Tenant fails to pay Rent when due.
ARTICLE 5
Use of Premises
5.01. Use Restricted. The Premises may be used for the Permitted Uses and for no
other purpose. No improvements may be made in or to the Premises except as
otherwise provided in this Lease.
5.02 Hazardous Materials. Tenant shall not (either with or without negligence)
cause or permit the escape, disposal or release of any biologically or
chemically active or other hazardous substances, or materials. Tenant shall not
allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Building any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq., the
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Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et
seq., any applicable state or local laws and the regulations adopted under these
acts. If, any lender or governmental agency shall ever require testing to
ascertain whether or not there has been any release of hazardous materials as a
direct result of Tenant's acts or omissions, then the reasonable costs thereof,
including but not limited to engineering and legal fees, shall be paid by Tenant
to Landlord, upon demand as additional charges if such requirement applies to
the Premises. 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 substances or materials
on the Premises. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this lease from any release of hazardous materials on the
Premises occurring while Tenant is in possession, or elsewhere if determined by
lawful authority to be caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination of the
lease term. The Tenant shall not be responsible for any remedial action or
expense necessary to correct any release of hazardous materials, substances or
oil on the Land, the Premises or the premises adjacent to the land which took
place prior to the Commencement Date. The costs of any such remedial action for
such prior release shall be borne entirely by Landlord and shall not be included
in Operating Expenses.
ARTICLE 6
Operating Expenses
6.01. Operating Expenses. If with respect to any Calendar Year, Tenant's Share
of Operating Expenses exceeds the Operating Expense Base, Tenant shall pay to
Landlord the amount of each such excess. Any amount due with respect to this
Section 6.01 shall be due on the date which is thirty (30) days after receipt by
the Tenant of the statement described in Section 6.02 hereof. If said payment is
not made within thirty (30) days Tenant agrees to pay a late charge of 1 1/2%
per month.
6.02. Annual Statement of Additional Rent Due. Within a reasonable time after
the end of each Calendar Year, Landlord shall render to Tenant a statement,
prepared in accordance with generally accepted accounting practices, showing
(i) for the Calendar Year just ended (a) Taxes and (b) Operating Expenses and
(ii) for the then current Calendar Year, an estimate for (a) Operating Expenses
and (b) Tenant's obligation under Section 6.01.
6.03. Monthly Payments of Additional Rent. Tenant shall pay to Landlord in
advance for each calendar month of the Lease Term falling between receipt by
Tenant of the statement described in Section 6.02 and receipt by Tenant of the
next such statement, as Additional Rent an amount equal to 1/12th of Tenant's
estimated obligation under Section 6.01 shown thereon. Any amounts due shall be
paid in advance on the first day of each calendar month during the Lease Term.
Tenant agrees to pay a late charge of one and one half (1 1/2%) percent per
month of any Additional Rent payment which is not made on or before the 10th day
of the month in which it is due. In addition, Tenant agrees to pay Landlord's
reasonable collection fees (including legal expenses) in the event that Tenant
fails to pay any Additional Rent when due. The amount due under this Section
6.03 shall be paid with Tenant's monthly payments of Basic
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Rent and shall be credited by Landlord to Tenant's obligations under Section
6.01. If the total amount paid hereunder exceeds the amount due under such
Section, such excess shall be credited by Landlord against the monthly
installments of Additional Rent next falling due or refunded to Tenant upon the
expiration or termination of this Lease, even upon termination due to Tenant's
default, unless it is determined that Tenant owes Landlord more than such
reimbursable amount as a result of such default.
6.04. Accounting Periods. Landlord shall have the right from time to time to
change the periods of accounting hereunder to any annual period other than a
Calendar Year, and upon any such change, all items referred to in this Article 6
shall be appropriately apportioned. In all statements rendered under Section
6.02, 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.
6.05. Abatement of Taxes. Landlord may at any time and from time to time make
application to the appropriate Governmental Authority for an abatement of Taxes.
Landlord shall make such an application at any time tenants occupying more than
60% of the Rentable Area of the Building under written Occupancy Arrangements
directly with the Landlord request that Landlord do so. If (i) such an
application is successful and (ii) Tenant has made any payment in respect of
Taxes pursuant to this Article 6 for the period with respect to which the
abatement was granted, Landlord shall (a) deduct from the amount of the
abatement all expenses incurred by it in connection with the application (b) pay
to Tenant Tenant's Share (adjusted for any period for which Tenant had made a
partial payment) of abatement, with interest, if any, paid by the Governmental
Authority on such abatement and (c) retain the balance, if any. Landlord will
adjust the tax portion of the operating expense base to reflect any abatement.
ARTICLE 7
Improvements, Repairs, Additions, Replacements
7.01. Preparation of the Premises. Landlord shall do Landlord's Work. All other
work must be of a quality equal to or better than the Building Standard Tenant
Finishes. Landlord shall also do the work described in the Working Drawings,
subject to the provisions of the Work Letter. If (i) the cost of such work
exceeds Landlord's Contribution or (ii) Landlord further agrees to do, at
Tenant's request, any Special Work, Tenant shall pay the amount of Tenant's Cost
to Landlord in accordance with the Work Letter. If Tenant delays Landlord's work
for any reason including but not limited to Tenants delays in providing plans or
change orders in work to be completed, then the rent commencement date shall be
adjusted to reflect said delays and rent shall commence on an earlier date
reflecting the number of days Tenant's delay has caused.
7.02. Tenant's Access to the Premises. Tenant and Tenant's agents, at Tenant's
sole risk, may, with Landlord's prior consent, enter the Premises prior to the
Term Commencement Date in order to do such work as may be required to make the
Premises ready for Tenant's use and
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occupancy thereof. If Landlord permits such entry prior to the Term Commencement
Date, such permission shall be conditioned upon Tenant and Tenant's agents,
contractors, workmen, mechanics, suppliers and invitees, working in harmony with
Landlord and the general contractor and with other tenants and occupants of the
Building. If at any time such entry shall cause or threaten to cause disharmony
or otherwise interfere with the orderly completion or operation of the Building,
Landlord shall have the right to withdraw such permission upon twenty-four (24)
hours written notice to Tenant. Any such entry into and occupation of the
Premises shall be deemed to be under all of the terms, covenants, conditions and
provisions of this Lease except the covenant to pay Rent. Landlord shall not be
liable in any way for any injury, loss or damage which may occur to any of
Tenant's work and installations made in the premises or to properties placed
therein prior to the Term Commencement Date, the same being at Tenant's sole
risk.
7.03. Alterations and Improvements. Landlord shall install a sign on the
Premises, in accordance with Landlord's signage program for the Building,
stating Tenant's name, and shall also list Tenant's name on the building
directory. Tenant may install a sign immediately outside the Premises, subject
to Landlord's approval which shall not be unreasonably withheld or delayed.
Tenant shall not make alterations or additions to the Premises except in
accordance with plans and specifications therefor first approved by Landlord.
Tenant shall not hang shades, curtains, signs, awnings or other materials,
attach any materials to or make any change in the appearance of any glass
visible from outside of the Premises, add any window treatment of any kind or
make improvements or install furniture visible from outside of the Premises,
without Landlord's prior written consent. Without limitation, Landlord shall not
be deemed unreasonable for withholding approval of any alterations or additions
which would (a) delay completion of the Premises or the Building, or (b) require
unusual expense to readapt the Premises to normal office use upon termination of
this Lease or increase (i) the cost of (a) construction or (b) insurance or (ii)
Taxes. All alterations and additions shall be part of the Premises unless and
until Landlord shall specify the same for removal in a notice delivered to
Tenant on or before the Lease Termination Date. All of Tenant's alterations and
additions and installation of furnishings shall be performed by Landlord or it's
agent at competitive costs, unless approved otherwise by Landlord.
7.04. Maintenance and Repair. (a) Landlord shall maintain and repair all
structural portions of the Building, including, the roof, the foundation and all
support walls, columns and exterior facings, unless such repairs are due to the
fault or negligence of Tenant or its servants, agents, employees, licensees or
invitees.
(b) Landlord shall maintain and repair all floors, ceilings, window and door
frames, conduits and pipes and the plumbing, electrical, heating and air
conditioning systems of the Building as well as all Common Areas, unless such
repairs are due to the fault or negligence of Tenant or of its servants, agents,
employees, licensees or invitees.
(c) Landlord shall maintain and repair all exterior areas of the Property,
including the watering, cutting and pruning of grass and shrubs in landscaped
areas, the removal of snow, ice, refuse and debris from the sidewalks, walkways
and parking areas of the Property and the
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striping, repairing and lighting of said parking and walkway areas, unless such
repairs are due to the fault or negligence of Tenant or its servants, agents,
employees, licensees or invitees.
(d) Except for repairs which are Landlord's express responsibility as set forth
in Section 8.01, Tenant shall keep the Premises in the same condition and repair
as they were in at the beginning of the Term, reasonable wear and tear, damage
by fire or other casualty, or act or omission of Landlord or its employees or
agents and Taking by eminent domain excepted. Tenant shall replace any glass
which may be damaged or broken with glass of the same quality at Tenant's
expense (if caused by the action of Tenant or its employees or agents). Tenant,
upon vacating the Premises, shall shampoo all carpets. Tenant further agrees to
clean and repair walls, ceilings and millwork to Landlord's satisfaction.
(e) Tenant shall make no alterations, improvements, or additions to the Premises
of a structural nature. Tenant may make only non-structural alterations and only
after obtaining Landlord's prior written consent. All such alterations by Tenant
shall be done in good and workmanlike manner and by Landlord or its Affiliates
at competitive costs. Tenant agrees to pay for Landlord's reasonable supervision
expenses in the event that Landlord consents to Tenant hiring an outside
contractor to make any alterations or improvements to Tenant's Premises. At the
expiration or other termination of this Lease, Landlord shall have the option to
require Tenant either to restore in whole or in part the Premises to the
condition in which they were in at the beginning of the Term or to have the
demised premises remain in their altered condition with all improvements and
additions becoming the property of the Landlord, except as to improvements or
additions which are personal property of Tenant and are removable without damage
to the Premises.
(f) Tenant covenants that it will permit Landlord and its agents to examine the
Premises at reasonable times, and that it will permit Landlord to enter the
Premises without charge or reduction in rent to make such repairs, improvements,
alterations or additions as may be required in order to comply with the
requirements of this Lease or of any public authority having jurisdiction, or to
make repairs which Tenant may have failed promptly to make pursuant to Tenant's
covenants hereunder. If such work is not of an emergency nature, it shall be
done only after reasonable notice to Tenant and in such a manner as will least
interfere with Tenant's operations.
7.05. Redelivery. On the Lease Termination Date, Tenant shall quit and surrender
the Premises free and clear of all tenants, occupants, liens, and encumbrances
holding by, through or under or caused by Tenant, as the case may be. Tenant
shall, subject to the provisions of Articles 17 and 18 hereof, surrender the
Premises to Landlord broom clean and in good condition and repair (ordinary wear
and tear, damage by fire or casualty only excepted) with all damages occasioned
by Tenant's removal of Tenant's fixtures or equipment repaired to Landlord's
satisfaction.
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ARTICLE 8
Building Services
8.01. Building Services. Landlord shall furnish, or cause to be furnished,
during the Lease Term the Basic Services.
8.02. Other Janitors. No persons shall be employed by Tenant to do janitorial
work in the Premises and no persons other than the janitors of the Building
shall clean the Premises unless Landlord shall give its written consent thereto.
Any person employed by Tenant with Landlord's consent to do janitorial work
shall, while in the Building, either inside or outside the Premises, be subject
to and under the control and direction of the superintendent of the Building
(but not as agent or servant of said superintendent or of Landlord).
8.03. Additional Services. Tenant will pay the Landlord a reasonable charge for
any extra cleaning (including periodic shampooing of carpets as needed) 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 the 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.
8.04. Limitations on Landlord's Liability. Except as provided in Section 25.01
hereof, Landlord shall not be liable in damages, nor in default hereunder, for
any failure or delay in furnishing any Basic Service or Additional Service when
such failure or delay is occasioned by Force Majeure or by the act or Default of
Tenant.
ARTICLE 9
Tenant's Particular Covenants
9.01. Pay Rent. Tenant shall pay when due all Rent, Additional Rent and, all
charges of Landlord for Additional Services rendered to the Premises. In
addition, Tenant agrees to pay Landlord's reasonable collection fees (including
legal expenses) in the event that Tenant fails to pay rent when due. If Tenant
is ever two (2) months behind in rent payments at any time all of Tenant's
options shall become null and void.
9.02. Occupancy of the Premises. Tenant shall occupy the Premises continuously
from the Term Commencement Date for the Permitted Uses only. Tenant shall not
(i) injure or deface the Premises or the Building, (ii) install any sign in or
on any window, demising wall or Common Area, (iii) permit in the Premises any
inflammable fluids or chemicals not reasonably related to the Permitted Uses nor
(iv) permit any nuisance or any use thereof which is improper, offensive,
contrary to any Legal Requirement or Insurance Requirement or liable to render
necessary any alteration or addition to the Building. Tenant agrees to give
Landlord at least five (5) days prior written notice before moving any furniture
or equipment into the Building or prior to vacating the Premises.
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9.03. Rules and Regulations. Tenant shall not obstruct in any manner any portion
of the Building or the Land. Tenant will comply with all Rules and Regulations.
9.04. Safety. Tenant shall keep the Premises equipped with all safety appliances
required by Legal Requirements or Insurance Requirements because of any
particular use made by Tenant. Tenant shall procure all Authorizations so
required because of such use and, if requested by Landlord, shall do any work so
required because of such particular use, it being understood that the foregoing
provisions shall not be construed to broaden in any way the Permitted Uses.
9.05. Equipment. Tenant shall not place a load upon the floor of the Premises
exceeding the live load for which the floor has been designed; and shall not
move any safe or other heavy equipment in, about or out of the Premises except
in such manner and at such time as Landlord shall in each instance authorize.
Tenant shall isolate and maintain all of Tenant's business machines and
mechanical equipment which cause or may cause air-borne or structure-borne
vibration or noise, whether or not it may be transmitted to any other premises
so as to eliminate such vibration or noise.
9.06. Electrical Equipment. Tenant shall not, without prior written notice to
Landlord in each instance (i) connect to the Building electric distribution
system anything other than normal office equipment or (ii) operate such
equipment on a regular basis beyond normal Building operating hours. Tenant's
use of electrical energy in the Premises shall not at any time exceed the
capacity of any of the electrical conductors or equipment in or otherwise
serving the Premises. Tenant shall not, without prior written notice to Landlord
in each instance, connect to the Building electric distribution system any
fixtures, appliances or equipment which operate on a voltage in excess of 120
volts nominal or make any alteration or addition to the electric system of the
Premises.
9.07. Pay Taxes. Tenant shall pay promptly when due all taxes upon its personal
property (including, without limitation, fixtures and equipment) in the Premises
to whomsoever assessed.
9.08. Financials. Tenant shall provide Landlord with its most recent audited
financials within ten (10) days of such request.
ARTICLE 10
Requirements of Public Authority
10.01. Legal Requirements. Tenant shall, at its own cost and expense, promptly
observe and comply with all Legal Requirements relating to its particular use of
the Premises and shall act in conformity with all applicable laws, ordinances,
by-laws, rules and regulations of the appropriate governmental authorities.
Tenant shall pay all costs, expenses, liabilities, losses, damages, fines,
penalties, claims and demands, that may in any manner arise out of or be imposed
because of the failure of Tenant to comply with the covenants of this Article
10. Landlord represents that the Land and the Building are not currently in
violation under any
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Federal, State and/or municipal codes, ordinances, zoning laws or regulations.
Landlord is responsible for making the Building comply with the American with
Disabilities Act of 1990 and the regulations adopted pursuant thereto.
10.02. Contests. Tenant shall have the right to contest by appropriate legal
proceedings diligently conducted in good faith, in the name of the Tenant, or
Landlord (if legally required), or both (if legally required), without cost,
expense, liability or damage to Landlord, the validity or application of any
Legal Requirement and, if compliance with any of the terms of any such Legal
Requirement may legally be delayed pending the prosecution of any such
proceeding, Tenant may delay such compliance therewith until the final
determination of such proceeding.
ARTICLE 11
Covenant Against Liens
11.01. Mechanics Liens. Landlord's right, title and interest in the Premises or
the Land or the Building shall not be subject to or liable for liens of
mechanics or materialmen for work done on behalf of Tenant in connection with
improvements to the Premises. Notwithstanding such restriction, if because of
any act or omission of Tenant, any mechanic's lien or other lien, charge or
order for payment of money shall be filed against any portion of the Premises or
the Land or the Building, Tenant shall, at its own cost and expense, cause the
same to be discharged of record or bonded within ninety (90) days after the
filing thereof.
11.02. Right to Discharge. Without otherwise limiting any other remedy of
Landlord for default hereunder, if Tenant shall fail to cause such liens to be
discharged of record or bonded within the aforesaid ninety (90) day period or to
satisfy such liens within ninety (90) days after any judgment in favor of such
lien holders from which no further appeal might be taken then Landlord shall
have the right to cause the same to be discharged. All amounts paid by Landlord
to cause such liens to be discharged shall constitute Additional Rent.
ARTICLE 12
Access to Premises
12.01. Access. Landlord or Landlord's agents and designees shall have the right,
but not the obligation, to enter upon the Premises at all reasonable times
during ordinary business hours to examine same and to exhibit the Premises to
prospective purchasers and tenants given Landlord provides Tenant with
sufficient advanced notice, but in the latter case only during the last nine (9)
months of the Lease Term.
ARTICLE 13
Assignment and Subletting:
Occupancy Arrangements
13.01. Subletting and Assignment. Tenant shall not (either voluntarily or by
operation of law) enter (nor may Landlord cause, suffer or permit Tenant to
enter) into a Prohibited Occupancy Arrangement, and any Prohibited Occupancy
Arrangement shall be absolutely void and
18
ineffective for any purpose. Tenant shall not enter into any other Occupancy
Arrangement, either voluntarily or by operation of law, (other than with a
Person who is a Subsidiary Company or Affiliate of Tenant) without the prior
written consent of Landlord, such consent not to be unreasonably withheld or
delayed. Landlord may withhold approval of any Subtenant if Tenant is in default
under the Lease or if the Subtenant is one of Landlord's existing Tenants.
If the Landlord consents to such Occupancy Arrangement Tenant shall remain
liable for the payment and performance of the terms and covenants of this Lease.
Tenant agrees to disclose the terms of any sublease arrangement to Landlord
prior to signing said sublease. Landlord shall have the right of first refusal
on any sublease space under the same terms and conditions as offered to the
potential Subtenant. If Tenant enters into such an occupancy Arrangement, Tenant
shall pay to Landlord when received fifty percent (50%) of the Excess Rent (as
defined below), received in respect of such Occupancy Arrangement. Tenant agrees
to pay Landlord's reasonable legal fees associated with any sublease or
assignment.
Excess Rent shall be the amount by which (a) rent received from such subtenant
less all costs incurred by Tenant in procuring such subtenant, including without
limitations, broker's and attorney's fees and commissions exceeds (b) the Rent.
ARTICLE 14
Indemnity
14.01. Tenant's Indemnity. To the fullest extent permitted by law, Tenant shall
indemnify and save harmless Landlord from and against any and all liability,
damage, penalties or judgments and from and against any claims, actions,
proceedings and expenses and costs in connection therewith, including reasonable
counsel fees arising from injury to person or property sustained by anyone in
and about the Premises or the Building or the Land resulting from any act or
omission of Tenant, or Tenant's officers, agents, servants, employees,
contractors, sublessees or invitees. Tenant shall, at its own cost and expense,
defend any and all suits or actions (just or unjust) in which Landlord may be
impleaded with others upon any such above-mentioned matter, claim or claims,
except as may result from the acts as set forth in Section 14.02. All
merchandise, furniture, fixtures and property of every kind, nature and
description of Tenant or Tenant's employees, agents, contractors, invitees,
visitors or guests which may be in or upon the Premises, the Land or the
Building during the Lease Term shall be at the sole risk and hazard of Tenant,
and that if the whole or any part thereof shall be damaged, destroyed, stolen or
removed by reason of any cause or reason whatsoever, other than the negligence
or willful default of Landlord, no part of said damage or loss shall be charged
to or borne by Landlord.
14.02. Landlord's Liability. To the fullest extent permitted by law, Landlord
shall indemnify and save harmless Tenant from and against any and all liability,
damage, penalties or judgments and from and against any claims, actions,
proceedings and expenses and costs in connection therewith, including reasonable
counsel fees arising from injury to person or property sustained by anyone in
and about the Premises or the Building or the Land resulting from any act or
omission of Landlord, or Landlord's officers, agents, servants, employees,
contractors, sublessees or invitees. Landlord shall, at its own cost and
expense, defend any and all suits
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or actions (just or unjust) in which Tenant may be impleaded with others upon
any such above-mentioned matter, claim or claims. All merchandise, furniture,
fixtures and property of every kind, nature and description of Tenant or
Tenant's employees, agents, contractors, invitees, visitors or guests which may
be in or upon the Premises, the Land or the Building during the Lease Term shall
be at the sole risk and hazard of Tenant, and that if the whole or any part
thereof shall be damaged, destroyed, stolen or removed by reason of any cause or
reason whatsoever, other than the negligence or willful default of Landlord, no
part of said damage or loss shall be charged to or borne by Landlord.
ARTICLE 15
Insurance
15.01. Liability Insurance. Tenant shall provide or cause to be provided at its
expense, and keep in force during the Lease Term, general comprehensive
liability insurance in a good and solvent insurance company or companies
licensed to do business in the Commonwealth of Massachusetts, selected by
Tenant, and reasonably satisfactory to Landlord, and in an amount reasonably
required by Landlord but in any event not less than One Million Dollars
($1,000,000.00) with respect to injury or death to any one person and One
Million Dollars ($1,000,000.00) with respect to injury or death to more than one
person in any one accident or other occurrence and One Hundred Thousand Dollars
($100,000.00) with respect to damages to property. Such policy or policies shall
include Landlord as an additional insured. Tenant agrees to deliver certificates
of such insurance to Landlord as of the date hereof and thereafter not less than
ten (10) days prior to the expiration of any such policy. Such insurance shall
not be cancelable without ten (10) days' written notice to Landlord.
15.02. Casualty Insurance. Tenant shall cause its improvements to the Premises
to be insured for the benefit of Landlord and Tenant as their respective
interests may appear, against loss or damage by fire and customary extended
coverage in an amount equal to (i) the replacement value thereof, if insurance
in such amount is available, or (ii) the amount necessary to avoid the effect of
co-insurance provisions of the applicable policies. Certificates thereof shall
be delivered to Landlord. Landlord shall, at Tenant's cost and expense,
cooperate fully with Tenant and execute any and all consents and other
instruments and take all other actions necessary to obtain the largest possible
recovery. Landlord shall not carry any insurance concurrent in coverage and
contributing in the event of loss with any insurance required to be furnished by
Tenant hereunder if the effect of such separate insurance would be to reduce the
protection or the payment to be made under Tenant's insurance.
ARTICLE 16
Waiver of Subrogation
16.01. Waiver of Subrogation. All insurance policies carried by either party
covering the Premises, including but not limited to contents, fire and casualty
insurance, shall expressly waive any right on the part of the insurer to make
any claim against the other party. The parties hereto agree that their policies
will include such waiver clause or endorsement.
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16.02. Waiver of Rights. Landlord and Tenant each hereby waive all claims,
causes of action and rights or recovery against the other and their respective
partners, agents, officers and employees, for any damage to or destruction of
persons, property or business which shall occur on or about the Premises and
shall result from any of the perils insured under any and all policies of
insurance maintained by Landlord and Tenant, regardless of cause, including the
negligence and intentional wrongdoing of either party and their respective
agents, officers and employees but only to the extent of recovery, if any, under
such policy or policies of insurance; provided, however, that this waiver shall
be null and void to the extent that any such insurance shall be invalidated by
reason of this waiver.
ARTICLE 17
Damage or Destruction
17.01. Substantial Damage. If the Building or any part thereof shall be damaged
by fire or other casualty to the extent that substantial alteration or
reconstruction of the Building shall, in Landlord's or Tenant's opinion, be
required (whether or not the Premises shall have been damaged) or if as a result
any mortgagee of the Building requires that Proceeds payable be used to retire
the mortgage debt, either Landlord or Tenant may, terminate this Lease by
notifying Tenant in writing of such termination within thirty (30) days after
the date of such damage. If this Lease is so terminated, Rent shall be abated as
of the date of such damage.
17.02. Restoration. If this Lease is not terminated pursuant to Section 17.01,
Landlord shall, proceed with reasonable diligence to repair and restore the
Building (subject to Force Majeure) to substantially the same condition in which
it was immediately prior to the occurrence of the casualty to the extent of
Landlord's Work and the value of Landlord's Contribution. Tenant shall have the
right to terminate this Lease if such restoration is not complete within ninety
(90) days after the date of such damage. Landlord shall not be required to
rebuild, repair, or replace any part of Tenant's furniture, furnishings or
fixtures or equipment. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof, except that, Landlord shall allow Tenant
a fair diminution of Rent during the time and to the extent the Premises are
wholly or partially untenable.
The term "untenable" shall mean damage or destruction to the Premises or the
Building which shall prevent the Tenant from carrying on its business in
substantially the manner in which it has previously conducted such business at
the Premises.
ARTICLE 18
Eminent Domain
18.01. Total Taking. If the Premises or the Building should be the subject of a
Total Taking, then this Lease shall terminate as of the date when physical
possession of the Building or the Premises is taken by the condemning authority.
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18.02. Partial Taking. If there occurs a Partial Taking, Landlord (whether or
not the Premises are affected thereby) may terminate this Lease by giving
written notice thereof to Tenant within thirty (30) days after the right of
election accrues, in which event this Lease shall terminate as of the date when
physical possession of such portion of the Building or Premises is taken by the
condemning authority. If upon any such Partial Taking this lease is not
terminated, Rent shall be abated by an amount representing that part of the Rent
allocated to the portion of the Premises so taken and Landlord shall, at
Landlord's sole expense, restore and reconstruct the Building and the Premises
to substantially their former condition to the extent that the same, in
Landlord's judgment, may be feasible, but such work shall not exceed the scope
of Landlord's Work and the value of Landlord's Contribution.
18.03. Awards and Proceeds. All Proceeds payable in respect of a Taking shall be
the property of Landlord. Tenant hereby assigns to Landlord all rights of Tenant
in or to such Proceeds, provided that Tenant shall be entitled to separately
petition the condemning authority for a separate award for its moving expenses
and trade fixtures but only if such a separate award will not diminish the
amount of Proceeds payable to Landlord.
ARTICLE 19
Quiet Enjoyment
19.01. 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 lawfully claiming by, through or under Landlord.
19.02. Subordination. This Lease and all terms, covenants and provisions thereof
and all rights, remedies and options of Tenant under this Lease as the same may
hereafter be modified, amended or extended are and shall remain subject and
subordinate to any mortgage now or hereafter on the Building and to each advance
made or hereafter to be made under any mortgage, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor. This Section 19.02 shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate that
Landlord or any mortgagee may request in form satisfactory to Tenant. Tenant
waives the provisions of any statute or rule of law now or hereafter in effect
which may give or purport to give Tenant any right to terminate or otherwise
adversely affect this Lease or Tenant's obligations in the event of any
foreclosure proceeding is prosecuted or completed or in the event the Land, the
Building or Landlord's interest therein is sold at a foreclosure sale or by deed
in lieu of foreclosure. In the event that any mortgagee shall succeed to the
interest of Landlord then, this Lease shall nevertheless continue in full force
and effect and Tenant shall and does hereby agree to (1) attorn to such
mortgagee and to recognize such mortgagee as its Landlord, and upon request of
such mortgagee, Tenant shall execute and deliver to such mortgagee an agreement
of attornment in a form satisfactory to Tenant, or, at such mortgagee's option,
(2) enter into a new lease with such mortgagee, as Landlord, for the remaining
term of this Lease and otherwise on the identical terms and conditions and with
the same options, if any, then remaining, including all
22
modifications set forth in this Article provided that, notwithstanding anything
contained in this Article, the provisions of any mortgage held by such mortgagee
encumbering the Land and/or the Building (a "Mortgage") shall govern with
respect to the proceeds of any award in condemnation or of any fire or casualty
insurance policies affecting the Building.
19.03. 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 of such obligations or a termination of this
Lease unless Tenant shall have first given written notice of Landlord's act or
failure to act to Landlord's mortgagees of record, if any, specifying the act or
failure to act on the part of Landlord which could or would give basis to
Tenant's rights; and such mortgagees, after receipt of such notice, have failed
or refused to correct or cure the condition complained of within a reasonable
time thereafter. "Reasonable time" as used above shall mean a period of not more
than thirty (30) Calendar Days.
19.04. Other Provisions Regarding Mortgagees. (a) If this Lease or the Rent 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 and (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 or its designee so
assumes the obligations of Landlord hereunder, (i) any such obligation under
Section 24.01 to return the Security Deposit to the Tenant shall be limited to
the amount actually received by the mortgagee, or its designee with respect
thereto, (ii) such mortgagee or its designee will be liable for breaches of any
of Landlord's obligations hereunder only to the extent such breaches occur
during the period of ownership by the mortgagee or its designee after
foreclosure (or any conveyance by a deed in lieu thereof), (iii) such mortgagee
or its designee shall not have any liability to Tenant in the event of damage or
destruction to the Building or the Premises, for any repairs, replacements,
rebuilding or restoration, unless required to be made under the provisions of
this Lease and in any event, except as can reasonably be accomplished from the
deductible and net proceeds of insurance actually received by, or made available
to such mortgagee or its designee and not applied in reduction and/or repayment
of the loan secured by any Mortgage and (iv) such mortgagee or its designee
shall not have any liability to Tenant for or be subject to any credits,
offsets, abatements, or claims against the rent under this Lease accruing to
Tenant as a result of any acts or omissions of Landlord, its successors or
assigns, occurring or committed prior to the date upon which such mortgagee or
its designee shall become the owner of or obtain possession or control of the
Building and the Land.
(b) If required by any such mortgagee, Tenant shall promptly join in any
non-disturbance agreement to indicate its concurrence with the provisions
hereof, in a form satisfactory to Tenant.
23
(c) If any such mortgagee or its designee shall succeed to the interest of
Landlord, or any successor to Landlord, any such mortgagee or its designee shall
have no personal liability as successor to Landlord and Tenant shall look only
to the estate and property of any mortgagee or its designee in the Land and in
the Building for the satisfaction of Tenant's remedies for the collection of a
money judgment (or other judicial process) requiring the payment of money in the
event of any default by any such mortgagee or its designee, as Landlord under
the Lease, and no other property or assets of any such mortgagee or its designee
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant thereunder or Tenant's use or occupancy of
the Premises.
(d) Tenant agrees that no prepayment of rent or additional rent due under this
Lease of more than one month in advance, and no amendment, modification,
surrender or cancellation of this Lease shall be binding upon or as against any
such mortgagee whose name shall have been provided to Tenant in writing prior to
such amendment, modification, surrender or cancellation and as Landlord under
this Lease if it succeeds to that position, unless consented to in writing by
any such mortgagee.
(e) Any such mortgagee shall not be obligated to undertake or complete any
specific renovations or additions to the Premises specifically provided for in
this Lease to be performed by Landlord or pay the cost of any construction or
other special landlord work (either now or concurrently under way or hereafter
to be undertaken, whether or not the same is set forth in this Lease or any
other agreement).
(f) In the event any mortgagee requires, as a condition to providing any
construction or permanent financing or any refinancing for the Land and/or the
Building, that modifications to this Lease be obtained, and provided that such
modifications (i) are reasonable, (ii) do not adversely affect in a material
manner Tenant's use of the Premises as herein permitted, or Tenant's rights
hereunder and (iii) do not increase the Rent and other sums to be paid by Tenant
or other of Tenant's obligations hereunder, Landlord may submit to Tenant a
written amendment to this Lease incorporating such required changes, and Tenant
hereby covenants and agrees to execute and deliver such amendment to Landlord
within fifteen (15) days of Tenant's receipt thereof.
ARTICLE 20
Defaults: Events of Default
20.01. Defaults. The following shall, if any requirement for notice or lapse of
time or both has not been met, constitute Defaults, and, if such conditions have
been met, constitute Events of Default hereunder:
(1) The occurrence of any event set forth in Article 21 hereof;
24
(2) The failure of Tenant to pay rent when the same shall be due and payable and
the continuance of such failure for a period of ten (10) days after receipt by
Tenant of notice in writing from Landlord specifying such failure;
(3) The failure of Tenant to observe any covenant made by it in Sections 13.01,
15.01 and 25.03 hereof; and
(4) The failure of Tenant to keep, observe or perform any of the other
covenants, conditions and agreements herein contained on Tenant's part to be
kept, observed or performed and the continuance of such failure without the
curing of same for a period of twenty (20) days after receipt by Tenant of
notice in writing from Landlord specifying in reasonable detail the nature of
such failure.
(5) If Tenant defaults under the terms of this Lease all of Tenant's options
contained in this Lease shall become null and void.
20.02. Tenant's Best Efforts. In the event that the Default of which Landlord
gives notice is of such a nature that it cannot be cured within such twenty (20)
day period, then such Default shall not be deemed to continue so long as Tenant,
after receiving such notice, proceeds to cure the Default as soon as reasonably
possible and continues to take all steps necessary to complete the same within a
period of time which, under all prevailing circumstances, shall be reasonable.
No Default shall be deemed to continue if and so long as Tenant shall be so
proceeding to cure the same in good faith or be delayed in or prevented from
curing the same by reason of Force Majeure.
ARTICLE 21
Insolvency
21.01. Insolvency. If (1) there occurs with respect to Tenant an Insolvency or
(2) any execution or attachment is issued against Tenant or any of its property
and as a result thereof the Premises are taken or occupied by some Person other
than the Tenant, except as may herein be permitted, then an Event of Default
hereunder shall be deemed to have occurred so that the provisions of Article 22
hereof shall become effective and Landlord shall have the rights and remedies
provided for therein.
ARTICLE 22
Landlord's Remedies: Damages on Default
22.01. Landlord's Remedies. If an Event of Default shall occur and be
continuing, Landlord may, at its option, give to Tenant a notice terminating
this Lease upon a date specified in such notice, which date shall be not less
than three (3) Business Days after the date of receipt by Tenant of such notice
from Landlord, and upon the date specified in said notice, the term and estate
hereby vested in Tenant shall cease and any and all other right, title and
interest of Tenant hereunder shall likewise cease without further notice or
lapse of time, as fully and with
25
like effect as if the entire Lease Term has elapsed, but Tenant shall continue
to be liable to Landlord as hereinafter provided.
If such event of Default results from Tenant's failure to pay a charge for an
Additional Service pursuant to Section 8.03 hereof, Landlord may, without
further notice to Tenant, discontinue any or all of such Additional Services.
22.02. Surrender. Upon any termination of this Lease as the result of an Event
of Default, Tenant shall quit and peacefully surrender the Premises to Landlord.
Upon or at any time after any such termination, may without further notice,
enter the Premises and possess itself thereof by summary proceedings or
otherwise, and may dispossess Tenant and remove Tenant and all other Persons and
property from the Premises and may have, hold and enjoy the Premises and the
right to receive all rental income of and from the same.
22.03. Right to Relet. At any time or from time to time after any such
termination, Landlord may relet the Premises or any part thereof, in the name of
Landlord or otherwise, for such term or terms (which may be greater or less than
the period which would otherwise have constituted the balance of the Lease term)
and on such conditions (which may include concessions or free rent) as Landlord,
in its reasonable discretion, may determine and may collect and receive the
rents therefor. Landlord shall in no way be responsible or liable for any
failure to relet the Premises or any part thereof, or for any failure to collect
any rent due upon any such reletting. In the event of Tenant's default, Tenant
shall be liable to Landlord for all expenses including but not limited to legal,
brokerage, construction, vacancy, expenses associated with reletting, it's
construction and rent differential.
22.04. Survival of Covenants. No such termination of this Lease shall relieve
Tenant of its liability and obligations under this Lease and such liability and
obligations shall survive any such termination. Tenant shall indemnify and hold
Landlord harmless from all loss, cost, expense, damage or liability arising out
or in connection with such termination.
In the event of any such termination, Tenant shall pay to the Landlord the Rent
up to the date of such termination. Tenant shall also pay to Landlord, on
demand, as and for liquidated and agreed damages for Tenant's Default the
present value of:
(1) The aggregate Rent which would have been payable under this Lease by Tenant
from the date of such termination until the Stated Expiration Date minus the
fair rental value of the Premises, plus
(2) All of Landlord's reasonable estimate of expenses to be incurred in
connection with reletting the Premises, including, without limitation, all
repossession costs, brokerage commissions, legal expenses, reasonable attorneys'
fees, alteration costs, and expenses of preparation for such reletting.
If the Premises or any part thereof are relet by the Landlord before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved
26
upon such reletting shall be, prima facie, the fair and reasonable rental value
for the part or the whole of the Premises so relet during the term of the
reletting.
Nothing herein contained shall limit or prejudice the right of the Landlord to
prove and obtain as liquidated damages by reason of such termination, 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, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
22.05. Right to Equitable Relief. If there shall occur a Default or threatened
Default, Landlord shall be entitled to enjoin such default or threatened Default
and shall have the right to invoke any right and remedy allowed at law or in
equity or by statute or otherwise as though re-entry, summary proceedings, and
other remedies were not provided for in this Lease.
22.06. Right to Self Help; Interest On Overdue Rent. If an Event of Default
shall occur and be continuing, either Landlord or Tenant 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 either Landlord or Tenant is made in this Lease with
respect to such Default. In performing such obligation, either Landlord or
Tenant may make any payment of money or perform any other act. The aggregate of
(i) all sums so paid by either Landlord or Tenant (ii) interest (at the rate of
1-1/2% per month or the highest rate permitted by law, whichever is less) on
such sum plus all Rent not paid when due and (iii) all necessary incidental
costs and expenses in connection with the performance of any such act by either
Landlord or Tenant, shall be deemed to be Rent under this Lease and shall be
payable to either Landlord or Tenant immediately upon demand. Either Landlord or
Tenant may exercise the foregoing rights without waiving any other of its rights
or releasing either Landlord or Tenant from any of its obligations under this
Lease.
22.07. Further Remedies. Upon any termination of this Lease pursuant to Section
22.01, or at any time thereafter, Landlord may, in addition to and without
prejudice to any other rights and remedies Landlord shall have at law or in
equity, re-enter the Premises, and recover possession thereof and may dispossess
any or all occupants of the Premises in the manner prescribed by the statute
relating to summary proceedings, or similar statutes; but Tenant in such case
shall remain liable to Landlord as hereinbefore provided. In the event of
Tenant's default under Article 20 or 21, Tenant shall be liable to Landlord for
the legal expenses incurred in the event of Tenant's default.
ARTICLE 23
Waivers
23.01. No Waivers. Failure of Landlord to complain of any act or omission on the
part of Tenant no matter how long the same may continue, shall not be deemed to
be a waiver by said Landlord of any of its rights hereunder. No waiver by
Landlord at any time, expressed or implied, of any breach of any provision of
this Lease shall be deemed a waiver of a breach of any other provision of this
Lease or a consent to any subsequent breach of the same or any
27
other provision. No acceptance by Landlord of any partial payment shall
constitute an accord or satisfaction but shall only be deemed a partial payment
on account.
ARTICLE 24
Security Deposit
Tenant deposited $18,333.33 as security for the premises. Landlord may deduct
late penalties, past due Rent and damages from this security deposit. The
balance of said Security Deposit shall be fully refunded to Tenant within ten
(10) days of termination of this Lease.
ARTICLE 25
General Provisions
25.01. Force Majeure. 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 Majeure, 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 as well as rent
abated for the period of the delay.
25.02. Notices and Communications. All notices, demands, requests and other
communications provided for or permitted under this Lease shall be in writing,
either delivered by hand or sent by first-class mail, postage prepaid, to the
following addresses:
(a) if to Landlord at the address stated in Section 1.01 hereof, or at such
other address as the Landlord shall have designated in writing to the Tenant,
with a copy to such Persons as Landlord shall have designated in writing to
Tenant, or
(b) if to Tenant at the address stated in Section 1.01 hereof, or at such other
address as the Tenant shall have designated in writing to the Landlord, with a
copy to such Persons as Tenant shall have designated in writing to Landlord.
Any notice provided for herein shall become effective only upon and at the time
of receipt by the Person to whom it is given, unless such notice is mailed by
first-class registered or certified mail, in which case it shall be deemed to be
received on (i) the third Business Date following the mailing thereof or (ii)
the day of its receipt, if a Business Date, or the next succeeding Business Day,
whichever of (i) or (ii) shall be the earlier.
25.03. Certificates, Estoppel Letter. Either party shall, without charge, at any
time and from time to time hereafter, within ten (10) days after written request
of the other, certify to the best of Tenant's knowledge by written instrument
duly executed and acknowledged to any mortgagee or purchaser, or proposed
mortgagee or proposed purchaser, or any other Person specified in such request:
(a) as to whether this Lease has been supplemented or amended, and if so, the
substance and manner of such supplement or amendment, (b) as to the validity and
force and effect of this Lease, in accordance with its tenor as then
constituted, (c) as to the existence of any Default or Event of Default, (d) as
to the existence of any offsets,
28
counterclaims or defenses thereto on the part of such other party, (e) as to the
Term Commencement Date and Stated Expiration Date, (f) Tenant is the owner and
holder of the Tenant's interest under this Lease, (g) the premises demised under
this Lease have been completed and Tenant has taken possession of the same on a
rent-paying basis, (h) all rents, additional rents and other sums due and
payable under this Lease have been paid in full for the date due and no rents,
additional rents or other sums payable under this Lease have been paid for more
than one (1) month in advance of the due date thereof; and (i) as to any other
matters as may reasonably be so requested. Any such certificate may be relied
upon by the party requesting it and any other Person to whom the same may be
exhibited or delivered, and the contents of such certificate shall be binding on
the party executing same.
Tenant shall in addition, within five (5) Business Days of the Term Commencement
Date, execute and deliver to Landlord a tenant estoppel letter substantially in
the form attached hereto as Exhibit B.
25.04. Holding Over. If Tenant occupies the Premises after the Lease Termination
Date without having entered into a new lease of the Premises with Landlord,
Tenant shall be a tenant-at-sufferance only subject to all of the terms and
provisions of this Lease at the greater of one and one-quarter of the then
effective Basic Rent or Fair Market Rent. Such a holding over, even if with the
consent of Landlord, shall not constitute an extension or renewal of this Lease.
25.05. Governing Law. This Lease and the performance thereof shall be governed,
interpreted, construed and regulated by the laws of the Commonwealth of
Massachusetts.
25.06. Partial Invalidity. If any term, covenant, condition or provision of this
Lease or the application thereof to any person or circumstance shall, at any
time or 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, covenant, condition and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
25.07. Notice of Lease. The parties will at any time, at the request of either
one, promptly execute duplicate originals of an instrument, in recordable form,
which will constitute a Notice of Lease, setting forth a description of the
Premises, the Lease Term and any other portions thereof, excepting the rental
provisions, as either party may request.
25.08. Interpretation: Consents. The section headings used herein are for
reference and convenience only, and shall not enter into the interpretation
hereof. This Lease may be executed in several counterparts, each of which shall
be an original, but all of which shall constitute one and the same instrument.
The term "Landlord" whenever used herein, shall mean only the owner at the time
of Landlord's interest herein and upon any sale or assignment (other than as
collateral security for a loan) of the interest of Landlord herein, its
respective successors in interest and/or assigns shall, during the term of
ownership of its respective
29
estates herein, be deemed to be Landlord and the liability of Landlord, if any,
hereunder shall in any event be limited to the Landlord's interest in the
Building.
Subject to the provisions of the third sentence of Section 7.05 and except for
the consents of Landlord required pursuant to the second sentence of Section
7.05 hereof, consents of approvals required or requested of either Landlord or
Tenant shall not be unreasonably withheld or delayed.
25.09. Entire Agreement. No oral statement or prior written matter shall have
any force or effect. This Agreement shall not be modified or canceled except by
a writing executed by all parties.
25.10. Parties. Except as herein otherwise expressly provided, the covenants,
conditions and agreements contained in this Lease shall be binding upon the
heirs, successors and assigns of the parties hereto.
25.11. Brokers. Tenant warrants that it has had no dealings with any broker or
agent in connection with this Lease other than Xxxxxxxx X. Xxxxxxxxx of Saracen
Companies, Inc., Newton, Massachusetts or Xxxxx X. Boudrout of Hunneman
Commercial Company. Boston, Massachusetts for whose services Landlord agrees to
pay. Landlord and Tenant covenant to hold harmless and indemnify each other from
and against any and all cost, expense or liability for any compensation,
commission or charges claimed by any other broker or agent with respect to or in
connection with this Lease or the negotiation thereof. In the event Tenant
renews this Lease, Tenant agrees that it will pay for it's agent should Tenant
choose to have representation.
25.12 Tenant agrees to pay for any plans, copies of plans or keys requested
after Tenant's occupancy of the Premises.
25.13 Premises. Tenant acknowledges review and acceptance of the Premises plan
and measurement thereof.
25.14 Security. Landlord will provide Tenant with locks and keys for it's
premises. Tenant will be responsible for securing it's premises and for
providing any additional security if contracted by Tenant. Landlord will not be
liable for burglary, theft or damage caused by unauthorized persons on the
property.
This Lease is subject to Lender's consent to this Lease within fifteen (15) days
of the execution date. If the Landlord fails to obtain the Lender's consent to
this Lease within said time period for any reason or for no reason, then the
obligations of the parties hereto shall cease upon written notification and a
copy of such refusal by Lender, by Landlord to Tenant, this Lease shall be of no
further force or effect, and neither party shall be liable to the other for any
damages resulting from the execution of this Lease.
30
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as an
instrument under seal as of the day and year first above written.
LANDLORD: Xxxxx Avenue Senior Holdings LLC
BY: Xxxxx Avenue Senior Holdings Inc.
Its Managing Member
BY: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx
TITLE: President
TENANT: Work Management Solutions
BY: /s/ Xxxx Xxxxx
-----------------------------------
TlTLE: President/CEO
-----------------------------------
DATE: 5/6/97
-----------------------------------
31
EXHIBIT A
XXXXX RESEARCH CENTER
LANDLORD'S SERVICES
I. CLEANING
A. Lobby and Common Areas (nightly)
1. Empty all trash receptacles; clean receptacle as needed.
2. Empty and wipe clean all cigarette urns and ashtrays; replace
sand and water as needed.
3. Vacuum all carpets.
4. Vacuum all floor mats.
5. Clean all entrance doors.
6. Clean and shine all mullions and metal work.
7. Dust all picture frames.
8. Dust all architectural or sculpted works or art.
9. Dust all furniture.
10. Clean building directory.
11. Clean all baseboards.
12. Vacuum elevator carpets; remove stains as needed.
13. Vacuum and wash all elevator tracks.
14. Clean, wash and shine all doors, walls, and metal work in
elevators.
15. Clean all exit signs, and hanging fixtures.
B. Office Areas (nightly)
1. Remove trash; replace liners as needed.
2. Wash out trash basket as needed.
32
3. Empty and damp wipe all ashtrays.
4. Clean all blackboards when requested.
5. Dust all clothing closets, shelving and coat racks.
6. Clean all glass furniture tops, and display cases.
7. Vacuum all carpeting.
8. Vacuum all floor mats.
9. Dry mop all tile floors.
10. Remove waste to designated area.
11. Upon completion of work shut off lights and secure doors.
C. Office Areas (weekly or as needed)
1. Dust all desk tops, office furniture, picture frames, window
xxxxx, horizontal surfaces.
2. Remove fingerprints from doors, walls, light switches.
3. Damp mop kitchen and eating area floors.
D. Office Areas (yearly)
1. Strip and wax kitchen and eating area floors.
2. Window cleaning twice yearly.
E. Lavatories (nightly)
1. Sweep and wash floors using a disinfectant cleaner.
2. Wash and polish all mirrors, shelves, brightwork, and enameled
surfaces.
3. Wash and shine all flushometers, piping, and toilet seat
hinges.
4. Wash and wipe dry both sides of all toilet seats.
5. Wash and disinfect all basins, bowls, and urinals.
33
6. Wipe down all tile walls, partitions, dispensers and
receptacles.
7. Dust and clean all powder room fixtures.
8. Empty and clean paper towel and sanitary napkin receptacles.
9. Remove wastepaper and refuse from the premises.
10. Refill all toilet paper, paper towel, soap and sanitary napkin
dispensers, materials to be supplied by Landlord unless
otherwise arranged with Janitronics.
F. Offices will not be cleaned on the following Holidays:
o New Years Day
o Xxxxxx Xxxxxx Xxxx Day
o Washington's Birthday
o Patriot's Day
o Memorial Day
o Independence Day
o Labor Day
o Columbus Day
o Veteran's Day
o Thanksgiving Day
o Christmas Day
If individual Tenants wish to arrange for additional cleaning
services, please contact Xxx Knights at (000) 000-0000.
II. HEATING, VENTILATING, AND AIR CONDITIONING
1. Heating, ventilating, and air conditioning ("HVAC") as
required to provide reasonably comfortable temperatures for
normal occupancy on Business Days (excepting holidays listed
above); Monday through Friday from 8:00 a.m. to 6:00 p.m. and
Saturday from 8:00 a.m. to 1:00 p.m.
2. Maintenance of any additional or special air conditioning
equipment, i.e. for any computer rooms, etc., and the
associated operating cost will be at Tenant's expense.
III. WATER
Hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
34
IV. ELEVATORS
Elevators for the use of all tenants and the general public for
access to and from all floors of the Building, Programming of
elevators (including, but not limited to, service elevators) shall
be as Landlord from time to time determines best for the Building as
a whole.
V. RELAMPING OF LIGHT FIXTURES
Tenant will reimburse Landlord for the cost of replacement lamps,
ballasts and starters.
VI. CAFETERIA AND VENDING INSTALLATIONS
1. Any space to be used primarily for lunchroom or cafeteria
operation within the Premises shall be Tenant's responsibility
to keep clean and sanitary, it being understood that
Landlord's approval of such use must be first obtained in
writing.
2. Vending machines or refreshment service installations by
Tenant must be approved by Landlord in writing and shall be
restricted to use to employees and business callers. All
cleaning necessitated by such installations shall be at
Tenant's expense.
VII. STRUCTURAL AND EXTERIOR MAINTENANCE
Landlord will maintain the structural components of the Building
(roof, elevators, HVAC system (other than the HVAC system dedicated
to Tenant's computer room, etc.) in good condition and working
order. Landlord will remove snow and maintain landscaped areas of
the Land as necessary.
35
EXHIBIT B
XXXXX RESEARCH CENTER
TENANT ESTOPPEL LETTER
Attached to and incorporated by reference into a Lease (the "Lease") between
_____________________ and Landlord") and ("Tenant"). Terms
defined in or by reference in the Lease not otherwise defined herein shall have
the same meanings herein as therein.
date
Gentlemen:
It is our understanding that you have committed to place a mortgage upon the
subject premises and as a condition precedent thereof have required this
certification by the undersigned.
Reference is made to our Lease dated , made with the Landlord
(the "Lease"). Terms defined in or by reference the Lease used herein but not
otherwise defined herein shall have the same meanings herein as therein.
The undersigned, as Tenant, hereby ratifies the Lease and certifies that:
1. the Term Commencement Date is ;
2. the undersigned presently occupies the Premises;
3. the Basic Rent of $ was (is) payable beginning ______ ( )
months after the Term Commencement Date;
4. the Lease is in full force and effect and has not been assigned by
us, modified, supplemented or amended in any way (except by
agreement(s) dated) and neither party thereto is in default
thereunder except as specified herein;
5. the Lease represents the entire agreement between Landlord and
Tenant;
6. the Stated Expiration Date is ;
7. all conditions under said Lease to be performed by the Landlord have
been performed satisfactorily;
36
8. Landlord's Contribution has been made and received;
9. on this date there are no existing defenses or offsets which the
undersigned has against the enforcement of said Lease by the
Landlord;
10. no Rent has been paid in advance other than the Security Deposit;
and,
11. Basic Rent for ,19 , has been paid.
Very truly yours,
____________________ (Tenant)
By:_________________ (Title)
37
EXHIBIT C
XXXXX RESEARCH CENTER
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by tenants or used by any tenant for any purpose other
than ingress and egress to and from the Premises and for going from one part of
the Building to another part of the Building.
2. Plumbing fixtures and appliances shall be used only for the purpose for which
designated, and no sweepings, rubbish, rags or other unsuitable material shall
be thrown or placed therein. Repairs resulting from such damage to any such
fixtures or appliances from misuse by a tenant shall be paid by him, and
Landlord shall not in any case be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to any
windows, doors, corridors or other parts of the Building except as shall be
first approved by Landlord.
4. Landlord will provide and maintain an alphabetical directory board for all
tenants in the Building, and no other directory shall be permitted unless
previously consented to by Landlord in writing.
5. Movement of furniture or office equipment, or dispatch or receipt by tenants
of any bulky material, merchandise or materials which requires use of elevators
or stairways, or movement through the Building entrances or lobby, shall be
restricted to such hours as Landlord may designate, and such movement shall be
subject to control of Landlord.
6. Landlord shall have the authority to prescribe the weight and manner that
safes, file cabinets and other heavy equipment are positioned.
7. All routine deliveries to a tenant's Premises shall be made through the
freight elevators. Passenger elevators are to be used only for the movement of
persons, unless an exception is approved by the Landlord in writing.
8. All locks for doors in each tenant's Premises shall be building standard and
no tenant shall place any additional lock or locks on any door in its leased
area without Landlord's written consent. Landlord agrees to furnish tenant three
(3) keys without charge.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenants shall lock all office doors leading to corridors and turn out all
lights at the close of their working day.
11. Tenants shall not tamper with or attempt to adjust temperature control
thermostats in their respective Premises. Landlord shall adjust thermostats to
maintain required temperatures for heating, ventilating and air conditioning.
38
12. Tenants will comply with any measures instituted for the security of the
building which may include the signing in or out in a register in the building
lobby after hours and on weekends.
13. Tenants shall not make or permit any improper noises in the building or
otherwise interfere in any way with other tenants or persons having business
with them.
14. All freight elevator lobbies are to be kept neat and clean. The disposal of
trash or storage or materials in these areas is prohibited.
15. No vending machines of any type shall be allowed in tenant space without the
prior written consent of Landlord.
16. No birds or animals shall be brought into or kept in, on or about public or
tenant areas.
17. Landlord will not be responsible for lost or stolen personal property, money
or jewelry from tenant's Leased Premises or public areas regardless of whether
such loss occurs when area is locked against entry or not.
18. Landlord reserves the right to rescind any of these rules and regulations
and to make such other and further rules and regulations as in its judgment
shall from time to time, be required for the safety, protection, care and
cleanliness of the building, the operation thereof, the preservation of good
order therein and the protection and comfort of the tenants and their agent,
employees and invitees. Such rules and regulations, when made and written notice
thereof is given to a tenant, shall be binding upon it in like manner as if
originally herein prescribed.
19. These rules and regulations shall be uniformly applied to all tenants in the
Building.
20. Tenant shall not use extension cords for normal day-to-day electrical needs.
21. All build-out items which Tenant is unsatisfied with and wants addressed
after the Term Commencement Date must be brought to Landlord's attention in
writing within fourteen (14) days of Tenant's Term Commencement Date. If said
list is not updated every fourteen (14) days, Landlord will assume that all
items have been completed and any additional work will be billed to Tenant.
22. Tenant is required to provide chair mats under all office chairs. In the
event that Tenant does not provide chair mats, Tenant agrees to pay for the
replacement of any damaged carpet.
23. Tenant is responsible for the repair of any appliances located within
Tenant's office within the rentable area of Tenant's office.
39
EXHIBIT X
XXXXX RESEARCH CENTER
OPERATING EXPENSE BASE
The Operating Expense Base for this Lease is $(1997 Actual Base Year). Tenant
agrees to pay Tenant's share of Operating Expenses if with respect to any
Calendar Year, actual Operating Expenses exceed the Operating Expense Base as
outlined in Article 6. Tenant understands that the Operating Expense Base
represents Landlord's contribution toward Operating Expenses and is not a
reflection of actual Operating Expenses.
Expense Item
------------
Building Repairs and Maintenance
R&M - Misc.
R&M - HVAC
R&M - Electrical
R&M - Locks & Keys
R&M - Plumbing & Sprinklers
R&M - Roofing
Elevator Contracts
Elevator Repair & Maint.
Elevator & HVAC Monitoring
Fire Alarm Repair & Maint.
R&M - Payroll
Lawn Sprinkler R&M
Interior Plant Care
Parking Lot R&M
Floor & Carpet Repair
Glass Repair
Pest Control
HVAC Contracts
Landscape & Lawn Maint.
Generator R&M
Generator Contracts
Snow Removal
Rubbish
TOTAL
Cleaning
Standard
Floors
Windows
Supplies
TOTAL
40
Electricity
Gas and Oil
Water/Sewer
Real Estate Taxes
Insurance
Management Fee
Other Taxes
TOTAL EXPENSE
41
EXHIBIT E
XXXXX RESEARCH CENTER
---------------------
TENANT WORK LETTER
42
