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EXHIBIT 10.7
LEASE AGREEMENT
BY AND BETWEEN
NATIONWIDE LIFE INSURANCE COMPANY
AND
GEOTEL COMMUNICATIONS CORPORATION
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EXHIBIT D
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RULES
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1. Tenant shall not obstruct or encumber or use for any purpose other
than ingress and egress to and from the Premises any sidewalk, entrance,
passage, court, elevator, vestibule, stairway, corridor, hall or other part of
the Building not exclusively occupied by Tenant. Landlord shall have the right
to control and operate the public portions of the Building and the facilities
furnished for common use of the tenants, in such manner as Landlord deems best
for the benefit of the tenants generally. Tenant shall not permit the visit to
the Premises of persons in such numbers or under such conditions as to interfere
with the use and enjoyment of the entrances, corridors, elevators and other
public portions or facilities of the Building by other tenants. Tenant shall
coordinate in advance with Landlord's property management department all
deliveries to the Building so that arrangements can be made to minimize such
interference.
2. Tenant shall not place any showcase, mat or other article in any
common or public area of the Building.
3. Tenant shall not use the water and wash closets and other plumbing
fixtures for any purpose other than those for which they were constructed, and
Tenant shall not place any debris, rubbish, rag or other substance therein.
4. Tenant shall not construct, maintain, use or operate within their
respective premises any electrical device, wiring or apparatus in connection
with a loudspeaker system or other sound system without Landlord's prior written
consent. Tenant shall not construct, maintain, use or operate any such
loudspeaker or sound system outside of the Premises.
5. Tenant shall not bring any bicycle, vehicle, animal, bird or pet of
any kind into the Building. Tenant shall not do or permit any cooking on the
Premises, except for microwave cooking and use of coffee machines by Tenant's
employees for their own consumption. Tenant shall not install any microwave oven
or coffee machine in the Premises without Landlord's prior written approval of
such equipment and its location within the Premises. Tenant shall not cause or
permit any unusual or objectionable odor to be produced upon or permeate from
the Premises. Tenant, at Tenant's expense, shall comply with all laws, orders,
ordinances and regulations of federal, state, county and municipal authorities
and with directions of public officers, departments, boards or similar entities
thereunder, and with the Occupational Safety and Health Act, respecting all
matters of occupancy, condition or maintenance of the Premises, whether such
orders or directions shall be directed to Tenant or Landlord and Tenant shall
hold landlord harmless from cost or expense on account thereof.
6. Tenant shall not use any space in the Building for the sale of
goods or for the sale at auction of goods or property of any kind. Tenant shall
not suffer or permit any trade or occupation or activity to be carried on or use
made of the Premises which shall be unlawful, noisy, offensive or injurious to
any person or property.
7. Tenant shall not place on any floor a load exceeding the floor load
per square foot which such floor was designed to carry. Landlord shall have the
right to prescribe the weight, position and manner of installation of safes and
other heavy items. Landlord shall have the right to repair or replace at
Tenant's expense any damage caused by Tenant's moving property into or out of
the Premises or due to the same being in or upon the Premises or to require
Tenant to do the same.
8. Tenant shall not place additional locks or bolts of any kind on any
door or window or make any change in any lock or locking mechanism without
Landlord's prior written approval. Tenant shall keep doors leading to a corridor
or main hall closed during business hours except as such doors may be used for
ingress or egress. Upon the termination of its tenancy, Tenant shall deliver to
Landlord the operations manual for any security or other system installed by
Tenant and all keys furnished to or procured by Tenant, and if any key so
furnished is not delivered, then Tenant shall pay the replacement cost thereof.
Tenant's key system shall be separate from that for the rest of the Building.
9. Tenant shall not install or operate in the Premises any equipment
that operates on greater than 110 volt power without obtaining Landlord's prior
written consent. Landlord may condition such consent upon Tenant's payment of
additional rent in compensation for the excess consumption of electricity or
other utilities and for the cost of any additional wiring or apparatus that may
be occasioned by the operation of such equipment. Tenant shall not install any
equipment of any type or nature that will or may necessitate any changes,
replacements or additional to, or changes in the use of, the water system,
heating system, plumbing system, air conditioning system or electrical system of
the Premises or the Building, without obtaining Landlord's prior written
consent, which consent may be granted or withheld in Landlord's sole and
absolute discretion. If any equipment of Tenant causes noise or vibration that
may be transmitted to such a degree as to be objectionable to Landlord or any
tenant in the Building, then Landlord shall have the right to install at
Tenant's expense vibration eliminators or other devices sufficient to reduce
such noise as vibration to a level satisfactory to Landlord or to require Tenant
to do the same.
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In the event that Tenant's energy consumption apparently exceeds
that normally used by conventional office usage, the excess energy consumption
shall be determined and shall be paid for by Tenant.
10. Tenant shall not request Landlord's employees to do anything
outside of such employees' regular duties without Landlord's prior written
consent. Tenant's special requirements will be attended to only upon application
to Landlord, and any such special requirements shall be billed to Tenant in
accordance with the schedule of charges maintained by Landlord from time to time
or as is agreed in writing in advance by Landlord and Tenant. Tenant shall not
employ any employee of Landlord for any purpose whatsoever without Landlord's
prior written consent.
11. Canvassing, soliciting and peddling in the Building are prohibited.
Tenant shall cooperate to prevent the same.
12. Only hand trucks equipped with rubber tires and side guards may be
used in the Building. Tenant shall be responsible for loss or damage resulting
from any delivery made by or for Tenant.
13. Tenant shall comply with standards prescribed by Landlord for
curtains, drapes, blinds, shades, screens, lights and ceilings, including
standards designed to give the Building a uniform, attractive appearance.
14. Drapes (whether installed by Landlord or Tenant) which are visible
from exterior of the Building shall be cleaned by Tenant at least once a year at
Tenant's expense.
15. Flammable, explosive or other hazardous liquids and materials shall
not be brought on the Premises or into the Building without the prior written
consent of Landlord.
16. Tenant shall store all trash and garbage within the Premises and
shall not burn or otherwise dispose of any trash or garbage in or about the
Premises or in any of the common areas of the Building.
17. Tenant shall use plastic chair mats under desk chairs in all
carpeted areas in the Premises.
18. No vehicle shall be permitted on any street or access road, either
public or private, or at any other place than the paved, marked spaces provided
for by the Premises. No truck parking shall be permitted other than loading or
unloading without the prior written permission of Landlord.
19. No signs, fixtures, advertisements or notices shall be displayed,
inscribed, painted or affixed by Tenant on any part of the interior or exterior
portion of the Premises or on the parking lot or any other part of Landlord's
property adjacent to the Premises without the prior written permission of
Landlord.
No "For Rent" signs shall be displayed by the Tenant, and no
showcases, or obstructions, signs, flags, xxxxxx poles, statuary, or any
advertising devices of any kind whatever shall be placed in front of said
Building or in the passageways, halls, lobbies, or corridors thereof by the
Tenant; and the Landlord reserves the right to remove all such showcases,
obstruction, signs, flags, xxxxxx poles, statuary, or advertising devises, and
all signs other than those provided for, without notice to the Tenant and at the
Tenant's expense.
20. Landlord agrees to furnish Tenant heat and air conditioning on
business days adequate and reasonable for the Premises herein leased, or when
and required by law.
21. The janitorial service provided for in the Lease shall include but
shall not be limited to the following:
(a) Trash baskets emptied, ash trays cleaned, trash removed, desks
dusted, floors cleaned and rest rooms cleaned and washed five (5)
times per week.
(b) Vertical shades and light fixtures dusted, glass washed and
floors re-conditioned by buffing and waxing twelve (12) times per
year.
Janitorial service shall include care of the grounds, entrances and
parking lot areas on a reasonable basis.
Landlord may retain a pass key to the Premises and be allowed
admittance hereto at all times to enable its representative to inspect said
Premises from time to time.
22. The Tenant shall not allow anything to be placed against or near the
glass in partitions, between the Premises leased and the halls or corridors of
the Building or windows which shall diminish the light in, or prove unsightly
from the halls, corridors or exterior portion of the Premises.
23. The Tenant when closing its office for business, at any time, shall
use diligence to see that all doors and windows are closed and secured within
the Premises. Any damage to the Premises as a result of Tenant's negligence from
storm, rain or freezing shall be the responsibility of Tenant to restore the
Premises to its original condition.
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24. The Landlord or his agents shall have the right to enter the demised
Premises at all reasonable hours for the purpose of making any repairs,
alterations, or additions which they shall deem necessary for the safely,
preservation, or improvement of said Premises of said Building, and the Landlord
shall be allowed to take all material into and upon said Premises that may be
required to make such repairs, improvements and additions, or any alterations
for the benefit of the Tenant without in any way being deemed or held guilty of
any eviction of the Tenant; and the rent reserved shall in no way xxxxx while
said repairs, alterations, or additions are being made. All such repairs,
decorations, alterations, additions, and improvements shall be done during
ordinary business hours, if possible, subject to satisfactory compliance of the
Tenant.
25. The Tenant shall not allow anything to be placed on the outside
window ledges of the Premises, nor shall anything be thrown by the Tenant, or
his employees or visitors, out of the windows of the Building.
26. The Premises leased shall not be used for lodging or sleeping, nor
for any immoral or illegal purposes or for any purpose that will damage the
Premises.
27. The Landlord reserves the right to add, delete or amend the rules
and regulations as in its judgement may from time to time be needful for the
safety, care and cleanliness of the Premises, and for the preservation of good
order therein, and any such other or further rules and regulations shall be
binding upon the parties hereto with the same force and effect as if they had
been inserted herein at the time of the execution hereof.
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TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions ........................................... 1
ARTICLE II
Premises .............................................. 1
ARTICLE III
Term .................................................. 1
ARTICLE IV
Base Rent ............................................. 2
ARTICLE V
Operating Charges ..................................... 3
ARTICLE VI
Use of Premises ....................................... 4
ARTICLE VII
Assignment and Subletting ............................. 4
ARTICLE VIII
Maintenance and Repairs ............................... 6
ARTICLE IX
Alterations ........................................... 6
ARTICLE X
Signs ................................................. 7
ARTICLE XI
Security Deposit ...................................... 7
ARTICLE XII
Holding Over .......................................... 7
ARTICLE XIII
Insurance ............................................. 8
ARTICLE XIV
Services and Utilities ................................ 8
ARTICLE XV
Liability of Landlord ................................. 9
ARTICLE XVI
Rules ................................................. 10
ARTICLE XVII
Damage or Destruction ................................. 10
ARTICLE XVIII
Condemnation .......................................... 11
ARTICLE XIX
Default ............................................... 11
ARTICLE XX
Bankruptcy ............................................ 13
ARTICLE XXI
Subordination ......................................... 14
ARTICLE XXII
Covenants of Landlord ................................. 14
ARTICLE XXIII
General Provisions .................................... 15
ARTICLE XXIV
Parking ............................................... 17
EXHIBIT A -- Plan Showing Premises
EXHIBIT B -- Landlord Workletter
EXHIBIT C -- Sample Operating Charges Including Real Estate Taxes
EXHIBIT D -- Rules and Regulations
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LEASE AGREEMENT
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THIS LEASE AGREEMENT (this "Lease") is dated as of November 29, 1993, by
and between Nationwide Life Insurance Company, an Ohio Corporation ,
("Landlord"), and GeoTel Communications Corporation ("Tenant").
ARTICLE I
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DEFINITIONS
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1.1 Building: a two (2) story office building containing 66,500 square
feet of rentable area, known as 00 Xxxxxx Xxxx, Xxxxxxxxx, Mass., and located on
certain land (the "Land") together with related parking areas and facilities
(whether in or near the Building), roadways and driveways and other amenities.
1.2 Premises: 7,000 square feet of rentable area (6,140 usable square
feet) located on the second (2nd) floor of the Building and outlined on Exhibit
A attached hereto.
1.3 Tenant's Proportionate Share: 10.53% of entire Building.
1.4 Lease Term: Five (5) years.
1.5 Lease Commencement: Seven days after the issuance of a Certificate
of Occupancy by the Town of Littleton.
1.6 Years 1-3: $4.75/sf NNN; Years 4 and 5: $5.25/sf NNN.
1.7 Intentionally Deleted.
1.8 Security Deposit: $3,000 dollars.
1.9 Broker(s): X.X. Xxxxxxx & Co., Inc. and The Leggat Company.
1.10 Tenant Address for Notices: ______________________________________
(Attn:__________________ ), until Tenant has commenced beneficial use of the
Premises, and the Premises (Attn:______________________ ) after Tenant has
commenced beneficial use of the Premises.
1.11 Intentionally Deleted.
1.12 Intentionally Deleted.
1.13 Landlord Address for Notices: Nationwide Life Insurance Company, Xxx
Xxxxxxxxxx Xxxxx, 00-X, Xxxxxxxx, Xxxx 00000, Attn: Xxxx Xxxxx with a copy to
X.X. Xxxxxxx & Co., Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attn: Property
Management.
ARTICLE II
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PREMISES
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2.1 Tenant leases the Premises from Landlord upon the terms stated
herein. Tenant will have the non-exclusive right to use for their intended
purpose the areas of the Building designated by Landlord from time to time as
common and public space, but shall include, without limitation, such hallways,
stairways, elevators, bathrooms, entrances, and accessways as shall be
reasonably necessary for the convenient use and enjoyment of the Premises.
2.2 On the Lease Commencement Date, Tenant shall occupy and shall pay
base rent and additional rent on 3,500 s.f. for the first nine months of the
Lease Term. Commencing with the tenth calendar month following the Lease
Commencement date, Tenant shall occupy and shall pay base rent and additional
rent on the entire 7,000 s.f. Premises. Should Tenant require occupancy of
greater than 3,500 r.s.f. anytime during the initial 9 months of the Lease Term,
Tenant may occupy all or a portion of the entire 7,000 SF Premises, and shall
pay Landlord for the additional space at the rate of $4.75/sf NNN.
2.3 During the initial 5-year term of this Lease, Tenant shall have the
Right of First Refusal to Lease the space designated as "I" on Exhibit A. Tenant
shall have ten (10) business days after written notice from Landlord to enter
into a lease amendment on the same terms as set forth in a bona fide offer made
by a third party to Landlord to lease all or any portion of the space designated
as "I" on Exhibit A, which offer Landlord is willing to accept, except that (i)
the termination date as to Tenant's leasing of such space shall be November 30,
1998 unless Tenant elects earlier termination in accordance with this Agreement,
and (ii) the improvements included in the business terms being matched may be
modified by mutual agreement to the extent appropriate to reflect the lease term
for Tenant and its intended use of the space to the extent different from the
term and use
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contemplated by the third party offer. If Tenant does not enter into a lease
amendment during said ten (10) day period, Landlord shall be free to lease said
space to such third party, and if Landlord enters into a lease with a third
party, Tenant's right of first refusal shall be null and void, except as
otherwise herein provided. If Landlord does not enter into such a lease with a
third party on any portion of the space designated as "I" on Exhibit A, Tenant's
Right of First Refusal shall be reinstated with respect to the unleased portion
of the space designated as "I" on Exhibit A. Tenant's Right of First Refusal to
Lease shall be in force until an occurrence of an Event of Default by Tenant
that has not been cured per Section 19.
ARTICLE III
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TERM
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3.1 The terms and conditions of this Lease shall be effective from the
date of execution of this Lease by Landlord and Tenant. The Lease Term shall
commence on the Lease Commencement Date specified in Section 3.2 hereinbelow. If
the Lease Commencement Date is not the first day of a month, then the Lease Term
shall be the period set forth in Section 1.4 hereinabove plus the partial month
in which the Lease Commencement Date occurs. The Lease Term shall also include
any properly exercised renewal or extension of the term of this Lease.
3.2 (a) The Lease Commencement Date shall be seven days after the
issuance of a Certificate of Occupancy by the Town of Littleton.
3.3 Lease Year shall mean a period of twelve (12) consecutive months
commencing on the Lease Commencement Date and each successive twelve (12) month
period thereafter; provided, however, that if the Lease Commencement Date is not
the first day of a month, then the second Lease Year shall commence on the first
day of the month in which the first anniversary of the Lease Commencement Date
occurs.
3.4 Tenant shall have the Right to Terminate this Lease (without
liability except as set forth below) effective anytime after the date two (2)
years after the Term Commencement Date, provided Tenant notifies Landlord in
writing of such Termination six months in advance. In the event of such
Termination, Tenant shall pay a Termination Fee equal to $23,500 on the date two
(2) years after the Term Commencement Date, said amount to be reduced on a
monthly amortized basis over the remainder of the Term should Tenants
termination occur at a later date. Tenant's Right to Terminate shall be in force
until the occurrence of an Event of Default by Tenant that has not been cured
per Section 19.
ARTICLE IV
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BASE RENT
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4.1 During each Lease Year during the Lease Term, Tenant shall pay to
Landlord as annual base rent for the Premises, without set-off, deduction or
demand, the Base Rent. The Base Rent shall be divided into twelve (12) equal
monthly installments and each such monthly installment shall be due and payable
in advance on the first day of each month during each Lease Year. Concurrently
with Tenant's execution of this Lease, Tenant shall pay an amount equal to one
(1) monthly installment of the Base Rent payable during the first Lease Year,
which amount shall be credited toward the first monthly installment of the Base
Rent due and payable hereunder. If the Lease Commencement Date is not the first
day of a month, then the Base Rent from the Lease Commencement Date until the
first day of the following month shall be prorated on a per diem basis at the
rate of one-thirtieth (1/30) of the monthly installment of the Base Rent payable
during the first Lease Year, and Tenant shall pay such prorated installment in
advance on the Lease Commencement Date.
4.2 Tenant shall also pay Landlord monthly for separately metered
electric service for lights and outlets furnished by Landlord to the Leased
Premises.
4.3 All sums payable by Tenant shall be paid to Landlord in legal
tender of the United States, at the address to which notices to Landlord are to
be given or to such other party or such other address as Landlord may designate
in writing. Landlord's acceptance of rent after it shall have become due and
payable shall not execute a delay upon subsequent occasions nor constitute a
waiver of fights, not withstanding any endorsement or restriction that Tenant
may include with such payment. If Tenant shall have been in default hereunder,
Landlord may at any time thereafter require that Base Rent and additional rent
due hereunder be paid by certified check.
ARTICLE V
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OPERATING CHARGES
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5.1 Tenant shall pay as additional rent to Landlord, Tenant's
Proportionate Share (as defined in Section 1.3 hereinabove) of the amount by
which Operating Charges (as defined in Section 5.2 hereinbelow) during each
calendar year falling entirely or partly within the Lease Term exceed a base
amount (the "Operating Charges Base Amount") equal to the actual Operating
Charges for the calendar year 1994. Tenant's Proportionate Share is that
percentage which is equal to a fraction, the numerator of which is the number of
square feet of rentable area in the Premises, and the denominator of which is
the number of square feet of rentable area in the Building, excluding the number
of square feet of rentable area of any storage, roof or garage space, provided
that during the first nine months of the term the number of square feet of
rentable area in the Premises shall be based upon the number of square feet
occupied by Tenant, and Tenant's proportionate share for said period shall be
calculated accordingly.
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5.2 Operating Charges shall mean all costs and expenses incurred by
Landlord in the operation of the Building and the Land, including, but not
limited to: (a) electricity, including Tenant's pro rate share of HVAC
electricity to its Premises, water, sewer, power, natural gas, fuel oil and
other utility charges (including surcharges and connection fees); (b) insurance
premiums; (c) management fees and personnel costs, not to exceed such fees and
costs commonly charged for similar buildings in Littleton, Massachusetts; (d)
costs of service, security and maintenance contracts; (e) maintenance,
redecoration and repair expenses; (f) depreciation for capital expenditures made
by Landlord to reduce operating expenses if Landlord reasonably estimates that
the annual reduction in operating expenses equals or exceeds such depreciation;
(g) Real Estate Taxes (as defined in Section 5.3); (h) charges for janitorial,
cleaning, security, window cleaning, and snow and trash removal services; (i)
any business, professional and occupational license tax payable by Landlord with
respect to the Building; (j) reasonable reserves for replacements, repairs and
contingencies; (k) any cost or expense incurred by Landlord in connection with
providing (directly or indirectly) transportation assistance or service to or
from the Building or in administering any transportation management program
required by any governmental agency or instrumentality; (l) auditing and
accounting fees; (m) legal and other professional fees; and (n) any other
expense incurred by Landlord in owning, maintaining, repairing or operating the
Building. Notwithstanding any of the foregoing, Landlord's Operating Charges
shall not include (i) expenses of a capital nature (whether for improvements,
replacements or restoration), (ii) principal or interest payments on any
mortgage, deed of trust, or ground lease, (iii) amounts charged for services
rendered to other tenant and not to Tenant, (iv) expenses for labor or personnel
to the extent not employed with respect to the Building and/or the Land, (v) any
charge for Landlord's overhead or service charge of any nature by Landlord, (vi)
legal fees incurred unless incurred in connection with the common areas or for
the benefit of the Building and/or Land as a whole, or (vii) broker's fees or
leasing commissions in connection with the leasing of the Building; and nothing
herein shall permit Landlord to make a profit by reason of Landlord's Operating
Charges. Operating Charges shall also not include: principal or interest
payments on any mortgage, deed of trust or ground lease; leasing commissions;
depreciation of the Building (except as specified above); and the costs of
special services or utilities separately charged to and paid for by particular
tenants of the Building.
5.3 Real Estate Taxes shall mean (a) all real estate taxes, including
general and special assessments, ordinary and extraordinary, foreseen and
unforeseen, which are imposed or levied upon Landlord or assessed against the
Building and/or the Land or Landlord's personal property used in connection
therewith, (b) any other present or future taxes or governmental charges that
are imposed upon Landlord or assessed against the Building or the Land which are
in the nature of or in substitution for real estate taxes, including any tax
levied on or measured by the rents payable by tenants of the Building, and (c)
all expenses (including attorney's fees) incurred in reviewing or seeking a
reduction of any real estate taxes. Real Estate Taxes shall not include income
taxes or estate or inheritance taxes.
5.4 At the beginning of the Lease Term and at the beginning of each
calendar year thereafter, Landlord may submit a statement setting forth the
amount by which Operating Charges that Landlord reasonably expects to be
incurred during each calendar year exceed the Operating Charges Base Amount and
Tenant's Proportionate Share of such excess. Tenant shall pay to Landlord on the
first day of each month after receipt of such statement, until Tenant's receipt
of any succeeding statement, an amount equal to one-twelfth (1/12) of the total
estimated amount payable by Tenant as set forth in such statement.
5.5 Within approximately one hundred twenty (120) days after the end of
each calendar year, Landlord shall submit a statement showing (a) Tenant's
Proportionate Share of the amount by which Operating Charges incurred during the
preceding calendar year exceeded the Operating Charges Base Amount, and (b) the
aggregate amount of Tenant's estimated payments during such year. Tenant may
request to review Landlord's records used to compile such statement. If such
statement indicates that the aggregate amount of such estimated payments exceeds
Tenant's actual liability, then the excess shall be credited to Tenant. If such
statement indicates that Tenant's actual liability exceeds the aggregate amount
of such estimated payments, then Tenant shall pay the amount of such excess
within thirty (30) days after receipt of such statement. If Tenant does not
notify Landlord in writing of any objection to such statement within thirty (30)
days after receipt, then Tenant shall be deemed to have waived such objection.
If Tenant objects to anything contained in such statement, Tenant may, after
paying the amount set forth in such statement, notify Landlord in writing of its
objections. Landlord shall review such objections and furnish to Tenant
reasonable documentation of the specific items of expense to which Tenant has
objected in writing. Landlord agrees to retain such records for a minimum of one
year subsequent to the end of each calendar year.
5.6 If the Lease Term commences or expires on a day other than the first
day or the last day of a calendar year, respectively, then Tenant's liability
for Operating Charges incurred during such year shall be proportionately
reduced.
ARTICLE VI
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USE OF PREMISES
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6.1 Tenant shall use the Premises solely for general office purposes
including, without implied limitation, for a software development company and
all uses appurtenant thereto and for no other use or purpose. Tenant shall not
use the Premises for any unlawful purpose or in any manner that in Landlord's
reasonable opinion will constitute waste, nuisance or unreasonable annoyance to
Landlord or any tenant of the Building.
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Tenant shall comply at its expense with all present and future laws, ordinances,
regulations and orders (including, without limitation, any regulation requiring
the sorting or separation of refuse and trash) concerning the use, occupancy and
condition of the Premises and all machinery, equipment and furnishings therein.
If any such law, ordinance, regulation or order requires an occupancy or use
permit for the Premises, then Tenant shall obtain and keep current such permit
at Tenant's expense and promptly deliver a copy thereof to Landlord. Use of the
Premises is subject to all covenants, conditions and restrictions of record. To
the best of Landlord's knowledge, there are no matters of record with respect to
the Property's Title which would adversely affect Tenant's use as described in
Sections 2.1 and 6.1 of this lease.
6.2 Tenant shall pay before delinquency any business, rent or other tax
or fee that is now or hereafter assessed or imposed upon Tenant's use or
occupancy of the Premises, the conduct of Tenant's business in the Premises or
Tenant's equipment, fixtures, furnishings, inventory or personal property. If
any such tax or fee is enacted or altered so that such tax or fee is imposed
upon Landlord or so that Landlord is responsible for collection or payment
thereof, then Tenant shall pay the amount of such tax or fee within ten (10)
days after Landlord's demand therefore.
6.3 Tenant shall not in the Building and/or the Premises generate,
store, handle, release, discharge, or otherwise deal with any material
classified as "hazardous material" for purposes of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time (CERCLA) or the Resource Conservation and Recovery Act of 1976, as
amended from time to time (RCRA), or any similar or related federal, state or
local statutes, rules, regulations or ordinances. Without limiting the
generality of the foregoing, Tenant expressly covenants and agrees that it shall
not, nor shall it permit anyone to:
(A) Use asbestos or any asbestos-containing materials in the Premises or in the
Building.
(B) Use any liquid-filled transformers in the Premises or in the Building,
unless consented to by Landlord in writing and confirmed by an outside
authoritative source to be free of polychlorinated biphenyls (PCB's);
(C) Install any underground storage tanks, unless consented to by Landlord in
writing and specifically approved and certified to be in compliance with
applicable code requirements;
(D) Store any opened containers of combustible products, such as cleaning
solvents, in other than metal containers and cabinets approved by the
Landlord in writing.
Tenant shall protect, indemnify, and save Landlord and its officers, agents,
servants and employees harmless from and against any and all obligations,
liabilities, costs, damages, claims and expenses of whatsoever nature arising
from or in connection with any violation of this paragraph by Tenant.
It is not the intent of this Section 6 to prevent Tenant from storing or using
reasonable quantities of chemicals typically found in office/R&D facilities for
the purpose of cleaning the Premises or conducting normal day-to-day operations.
ARTICLE VII
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ASSIGNMENT AND SUBLETTING
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7.1 Tenant shall not assign this Lease or any of Tenant's rights or
obligations hereunder, or sublet or permit anyone to occupy the Premises or any
part thereof, without (a) the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. No assignment or transfer of this
Lease may be effected by operation of law or otherwise without Landlord's prior
written consent. Any assignment, subletting or occupancy, Landlord's consent
thereto or Landlord's collection or acceptance of rent from any assignee,
subtenant or occupant, shall not be construed as a waiver or release of Tenant
from liability hereunder (it being understood that Tenant shall at all times
remain primarily liable as a principal and not as a guarantor or a surety) and
shall not be construed as relieving Tenant or any assignee, subtenant or
occupant from the obligation of obtaining Landlord's prior written consent to
any subsequent assignment, subletting or occupancy. Tenant assigns to Landlord
any sum due from any assignee, subtenant or occupant of Tenant as security for
Tenant's performance of its obligations pursuant to this Lease. Tenant
authorizes each such assignee, subtenant or occupant to pay such sum directly to
Landlord if such assignee, subtenant or occupant receives written notice from
Landlord specifying that such rent shall be paid directly to Landlord.
Landlord's collection of such rent shall not be construed as an acceptance of
such assignee, subtenant or occupant as a tenant nor a waiver of any default
hereunder by Tenant. All restrictions and obligations imposed pursuant to this
Lease on Tenant or the use and occupancy of the Premises shall be deemed to
extend to any subtenant, assignee or occupant of Tenant, and Tenant shall cause
such persons to comply with all such restrictions and obligations. Tenant shall
not mortgage or hypothecate this Lease without Landlord's written consent, which
consent shall not be unreasonably withheld or delayed. Tenant shall pay the
expenses (including attorney's fees and hourly fees for Landlord's employees and
agents) incurred by Landlord in connection with reviewing Tenant's request for
Landlord to give its consent to any assignment, subletting, occupancy or
mortgage, not to exceed $250.00 in any one instance.
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7.2 If Tenant is a partnership, then any dissolution of Tenant or a
withdrawal or change, whether voluntary, involuntary or by operation of law, of
partners owning a controlling interest in Tenant shall be deemed a voluntary
assignment of this Lease. Notwithstanding anything in this Lease to the
contrary:
A. Tenant shall have the right to assign this Lease or to sublet
the entire Premises, whether expressly or by operation of law (including without
limitation by merger, consolidation, reorganization or the like) without the
requirement of Landlord's consent, as follows:
1. To any corporation or entity which is a parent, subsidiary
or affiliate of Tenant;
2. To any corporation or entity resulting from a merger or
consolidation, or the formation of a joint venture or partnership;
3. By a transfer of stock in Tenant, whether or not a
controlling interest.
7.3 If Tenant wants to assign, sublet or otherwise transfer all or part
of the Premises or this Lease, then Tenant shall give Landlord written notice
("Tenant's Request Notice") of the identity of the proposed assignee or
subtenant and its business, all terms of the proposed assignment or subletting,
the commencement date of the proposed assignment or subletting (the "Proposed
Sublease Commencement Date"), the area proposed to be assigned or sublet (the
"Proposed Sublet Space") and such other information as Landlord may reasonably
request. Tenant shall also transmit therewith the most recent financial
statement or other evidence of financial responsibility of such assignee or
subtenant and a certification executed by Tenant and such proposed assignee or
subtenant stating whether any premium or other consideration is being paid for
the proposed assignment or sublease.
7.4 Landlord shall have the right in its sole and absolute discretion to
terminate this Lease with respect to the Proposed Sublet Space by sending Tenant
written notice within forty-five (45) days after Landlord's receipt of Tenant's
Request Notice. If the Proposed Sublet Space does not constitute the entire
Premises and Landlord elects to terminate this Lease with respect to the
Proposed Sublet Space, then (a) Tenant shall tender the Proposed Sublet Space to
Landlord on the Proposed Sublease Commencement Date as if the Proposed Sublease
Commencement Date had been originally set forth in this Lease as the expiration
date of the Lease Term with respect to the Proposed Sublet Space, and (b) as to
all portions of the Premises other than the Proposed Sublet Space, this Lease
shall remain in full force and effect except that additional rent payable
pursuant to Article V and the Base Rent shall be reduced proportionately. Tenant
shall pay all expenses of construction required to permit the operation of the
Proposed Sublet Space separate from the balance of the Premises. If the Proposed
Sublet Space constitutes the entire Premises and Landlord elects to terminate
this Lease, then (1) Tenant shall tender the Premises to Landlord on the
Proposed Sublease Commencement Date, and (2) the Lease Term shall terminate on
the Proposed Sublease Commencement Date, and Tenant shall have no further
obligation hereunder other than for rent applicable to the period prior to the
date of termination.
7.5 If any sublease, assignment or other transfer (whether by operation
of law or otherwise) provides that the subtenant, assignee or other transferee
(or any affiliate thereof) other than as set forth in Section 7.2 above, is to
pay any amount in excess of the rent and other charges due under this Lease,
then, whether such excess be in the form of an increased rental, lump sum
payment, payment for the sale or lease of fixtures or other leasehold
improvements or any other form (and if applicable space does not constitute the
entire Premises, the amount and existence of such excess shall be determined on
a pro rata basis), Tenant shall pay to Landlord seventy percent (70%) of any
such excess upon such terms as shall be specified by Landlord and in no event
later than ten (10) days after Tenant's receipt thereof. Tenant shall in all
events diligently pursue the collection of all amounts owed by any subtenant,
assignee or other transferee. Landlord shall have the right to inspect and audit
Tenant's books and records relating to any sublease, assignment or other
transfer. Any sublease, assignment or other transfer shall be effected on forms
supplied or approved by Landlord.
ARTICLE VIII
------------
MAINTENANCE AND REPAIRS
-----------------------
8.1 Tenant shall keep and maintain the Premises and all fixtures and
equipment located therein in clean, safe and sanitary condition and in
compliance with all legal requirements, shall take good care thereof and make
all repairs thereto, shall suffer no waste or injury thereto, and at the
expiration or earlier termination of the Lease Term, shall surrender the
Premises in the same order and condition in which they were on the Lease
Commencement Date (ordinary wear and tear consistent with the permitted use
hereunder excepted). All material injury, breakage and damage to the Premises
and to any other part of the Building or the Land caused by any act or omission
of any invitee, agent, employee, subtenant, assignee, contractor, client, family
member, licensee, customer or guest of Tenant (collectively "Invitee") or
Tenant, shall be repaired or replaced (as applicable) by and at Tenant's
expense, except that Landlord shall have the right at Landlord's option to make
any such repair or replacement and to charge Tenant for all reasonable costs and
expenses incurred in connection therewith.
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8.2 (a) Landlord shall keep the exterior walls, lead bearing elements,
foundations, pipes and conduits, roof and common areas that form a part of the
Building, and the building standard mechanical, electrical, HVAC and plumbing
systems that are provided by Landlord in the operation of the Building, clean
and in good operating condition and, subject to Section 8.1, shall make all
required repairs thereto.
(b) Notwithstanding any of the foregoing to the contrary,
maintenance and repair of special tenant areas, facilities, finishes and
equipment (including, but not limited to, any special fire protection equipment,
telecommunications and computer equipment, kitchen/galley/coffee equipment, air
conditioning equipment serving the Premises only and all other furniture,
finishings and equipment of Tenant and any Alterations (as hereinafter defined)
made by Tenant) shall be the sole responsibility of Tenant. Moreover, Landlord
shall have the right to require Tenant, at Tenant's sole expense, to enter into
maintenance contracts with duly qualified contractors satisfactory to Landlord
in all respects providing for good, workmanlike, first-class and prompt
maintenance and repair of such areas, facilities, finishes, equipment and
Alterations as may be designated by Landlord in its sole and absolute
discretion.
ARTICLE IX
----------
ALTERATIONS
-----------
9.1 The initial improvement of the Premises shall be accomplished by
Landlord in accordance with Exhibit B. Landlord is under no obligation to make
any alterations, additions, improvements, demolitions or other changes
(collectively "Alterations") in or to the Premises except as set forth in
Exhibit B.
9.2 Tenant shall not make or permit anyone to make any structural
alterations, additions, improvements, or demolitions costing in excess of $5,000
per occurrence in or to the Premises or the Building without Landlord's prior
written consent, which consent shall not be unreasonably withheld or delayed.
Any Alteration which Landlord permits Tenant to make shall be made: (a) in a
good, workmanlike, first-class and prompt manner; (b) using new materials only;
(c) by a contractor and in accordance with plans and specifications approved in
writing by Landlord; (d) in accordance with legal requirements (including,
without limitation, the Americans With Disabilities Act) and requirements of any
insurance company insuring the Building; (e) after obtaining any required
consent of the holder(s) of any Mortgage; (f) after obtaining a workmen's
compensation insurance policy approved in writing by Landlord; (g) after
delivering to Landlord written, unconditional waivers of mechanics' and
materialmen's liens against the Premises, the Building and the Land from all
proposed contractors, subcontractors, laborers and material suppliers for all
work and materials in connection with such Alteration and (h) in compliance with
such other requirements as Landlord might impose. If any lien (or a petition to
establish a lien) is filed in connection with any Alteration, then such lien (or
petition) shall be discharged by Tenant at Tenant's expense within ten (10) days
thereafter by the payment thereof or filing of a bond acceptable to Landlord.
Landlord's consent to the making of an Alteration shall be deemed not to
constitute Landlord's consent to subject its interest in the Premises or the
Building or the Land to liens which may be filed in connection therewith.
9.3 If any Alteration is made without Landlord's prior written consent,
then Landlord shall have the right, in addition to exercising all other
available remedies, at Tenant's expense to remove and correct such Alteration
and restore the Premises and the Building to their condition immediately prior
thereto or to require Tenant to do the same. Unless Landlord elects otherwise
pursuant to this Section 9.3, all Alterations to the Premises or the Building
made by either party shall immediately become Landlord's property (provided,
however, that during the Lease Term Tenant shall retain an insurable interest in
such Alterations) and shall remain upon and be surrendered with the Premises at
the expiration or earlier termination of the Lease Term; provided, however, that
if Tenant is not in default under this Lease, then Tenant shall have the right
to remove, prior to the expiration or earlier termination of the Lease Term, all
movable furniture, furnishings and trade fixtures installed in the Premises
solely at Tenant's expense. Notwithstanding anything of the foregoing to the
contrary in this Section 9.3, Tenant shall also be required to remove all
Alterations to the Premises or the Building and all non-trade fixtures and
equipment which Landlord designates in writing for removal (which designation
shall be provided to Tenant prior to the expiration or earlier termination of
the Lease Term) and Tenant shall be required to remove all telephone and data
cabling installed by or on behalf of Tenant (collectively, "Cabling"). Landlord
shall have the right to repair or replace at Tenant's expense all damage to the
Premises or the Building caused by any such removal or to require Tenant to do
the same. If any such furniture, furnishing or trade fixture is not removed by
Tenant upon or prior to the expiration or earlier termination of the Lease Term,
then the same shall, at Landlord's option, become Landlord's property and shall
be surrendered with the Premises as a part thereof; provided, however, that
Landlord shall have the right to remove from the Premises at Tenant's expense
such furniture, furnishing or trade fixture and any Alteration, non-trade
fixture or equipment (which Landlord designates in writing for removal) and any
Cabling.
ARTICLE X
---------
SIGNS
-----
10.1 Landlord will list Tenant's name on the Building directory, if any,
and provide building standard signage near one suite entry door. Tenant shall
not paint, affix or otherwise display on any part of the exterior or interior of
the Building (or any part of the Premises which is visible from outside the
Premises) any other sign, advertisement or notice. If any such item that has not
been approved by Landlord is so displayed, then Landlord shall have the right to
remove such item at Tenant's expense or to require Tenant to do the same.
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10.2 Except by United States mail, Tenant shall not distribute any
advertisements or notices within the Complex. Landlord reserves the right to
prohibit any advertisement which in Landlord's opinion tends to impair the
reputation or desirability of the Building or the Complex.
ARTICLE XI
----------
SECURITY DEPOSIT
----------------
11.1 Concurrently with Tenant's execution of this Lease, Tenant shall
deposit with Landlord the Security Deposit to secure Tenant's full and faithful
performance of all the obligations herein set forth. Landlord shall not be
required to pay interest on the Security Deposit or to maintain the Security
Deposit in a separate account. If any sum payable by Tenant to Landlord shall be
due and unpaid, or if Landlord makes any payments on behalf of Tenant, or if
Landlord suffers any loss, cost or expense as a result of Tenant's
non-performance of any obligation or covenant herein, then Landlord, at its
option and without limiting any other remedy, may use and apply any part of the
Security Deposit to compensate Landlord for the payments not made or the loss,
cost or expense suffered by Landlord. Within thirty (30) days after written
notice of Landlord's use of the Security Deposit, Tenant shall deposit with
Landlord cash in an amount sufficient to restore the Security Deposit to its
prior amount. Within approximately ninety (90) days after the later of (a) the
expiration or earlier termination of the Lease Term, or (b) Tenant's vacating
the Premises, Landlord shall return the Security Deposit less such portion
thereof as Landlord may have used to satisfy Tenant's obligations and less such
other sums as Landlord reasonably expects to be due from Tenant. If Landlord
transfers the Security Deposit to a transferee of the Building or Landlord's
interest therein, then such transferee (and not Landlord) shall be liable for
its return. The holder of any Mortgage shall not be liable for the return of the
Security Deposit unless such holder actually receives the Security Deposit.
Tenant shall not transfer or assign the Security Deposit or any interest therein
without Landlord's prior written consent, which consent Landlord may withhold in
its sole and absolute discretion.
ARTICLE XII
-----------
HOLDING OVER
------------
12.1 Tenant acknowledges that it is extremely important that Landlord
have substantial advance notice of the date on which Tenant will vacate the
Premises, because Landlord will (a) require an extensive period to locate a
replacement tenant, and (b) plan its entire leasing and renovation program for
the Building in reliance on its lease expiration dates. Tenant also acknowledges
that if Tenant fails to surrender the Premises at the expiration or earlier
termination of the Lease Term, then it will be conclusively presumed that the
value to Tenant of remaining in possession, and the loss that will be suffered
by Landlord as a result thereof, far exceed the Base Rent and additional rent
that would have been payable had the Lease Term continued during such holdover
period. Therefore, if Tenant does not immediately surrender the Premises upon
the expiration or earlier termination of the Lease Term, then the rent shall be
increased to equal the greater of (1) one and one-half times the fair market
rent for the Premises, or (2) one and one-half (1 1/2) the Base Rent, additional
rent and other sums that would have been payable pursuant to the provisions of
this Lease if the Lease Term had continued during such holdover period. Such
rent shall be computed on a monthly basis and shall be payable on the first day
of such holdover period and the first day of each calendar month thereafter
during such holdover period until the Premises have been vacated. Landlord's
acceptance of such rent shall not in any manner adversely affect Landlord's
other rights and remedies, including Landlord's right to evict Tenant and to
recover damages. Tenant agrees to hold Landlord harmless from and against all
loss and damages, direct and consequential, which Landlord may suffer or incur
in connection with claims by other parties against Landlord arising out of the
holding over by Tenant, including, without limitation, reasonable attorney's
fees which may be incurred by Landlord in defense of such claims. Except as
otherwise specifically provided in this Article, all terms of this Lease shall
remain in full force and effect during such holdover period.
ARTICLE XIII
------------
INSURANCE
---------
13.1 Tenant shall not conduct any activity or place any item in or about
the Building which may increase the rate of any insurance on the Building. If
any increase in the rate of such insurance is due to any such activity or item,
then (whether or not Landlord has consented to such activity or item and without
waiving Landlord's right to require such activities to cease) Tenant shall pay
the amount of such increase. The statement of any insurance company or insurance
rating organization (or other organization exercising similar functions in
connection with the prevention of fires or the correction of hazardous
conditions) that such an increase is due to any such activity or item shall be
conclusive evidence thereof.
13.2 Tenant shall maintain throughout the Lease Term with a company
licensed to do business in the jurisdiction in which the Building is located,
approved by Landlord and having a rating equal to or exceeding A:11 in Best's
Insurance Guide (a) broad form comprehensive general liability insurance
(written on an occurrence basis and including contractual liability coverage
insuring the obligations assumed by Tenant pursuant to Section 15.2 and an
endorsement for personal injury), (b) all-risk property insurance. Such
liability insurance shall be in minimum amounts typically carried by prudent
tenants engaged in similar operations, but in no event shall be in an amount
less than one million dollars ($1,000,000) combined single limit per occurrence,
and two million dollars ($2,000,000) in the aggregate. Such property insurance
shall be in an amount not less than that
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required to replace all Alterations and all other contents of the Premises,
excluding only the work and materials considered to be building standard
finishes. All such insurance shall name Landlord as additional named insured;
contain an endorsement that such insurance shall remain in full force and effect
regardless of whether Tenant has waived any claim against the Landlord, under
this Lease, or any other person; provide that the insurer waives all right of
recovery by way of subrogation against Landlord, its agents and employees; and
contain an endorsement prohibiting cancellation, failure to renew, reduction in
amount of insurance or change of coverage as to the interests of Landlord by
reason of any act or omission of Tenant without the insurer's giving Landlord
thirty (30) days prior written notice of such action. Landlord reserves the
right from time to time to require Tenant to obtain higher minimum amounts or
different types of insurance, but only such insurance as is commonly required by
owners of similar properties for similar tenants located in the Town of
Littleton, Massachusetts. Tenant shall deliver a certificate of such insurance
and receipts evidencing payment of the premium for such insurance to Landlord on
or before the Lease Commencement Date and at least annually thereafter.
13.3 Landlord shall maintain fire insurance with extended coverage
insuring the base Building (but not any Alterations or any personal property or
other property of any tenant, including Tenant) in an amount not less than
ninety percent (90%) of replacement cost.
13.4 Landlord and Tenant hereby waive and release any rights and claims
each may have against the other on account of any loss or damage occasioned to
Landlord or Tenant, as the case may be, their respective property, the Premises,
the Building, its contents or improvements to the extent covered by insurance,
carried or required to be carried under the terms of this Lease. Landlord and
Tenant each, on behalf of their respective insurance companies insuring hereby
waive any right of subrogation that it might have against Landlord or Tenant, as
the case may be, to the maximum extent permitted by law.
ARTICLE XIV
-----------
SERVICES AND UTILITIES
----------------------
14.1 Landlord will furnish to the Premises heating, ventilation and air
conditioning ("HVAC") during the seasons they are required in Landlord's
reasonable judgment. Landlord shall not be liable for any failure to maintain
comfortable atmosphere conditions in all or any portion of the Premises due to
excessive heat generated by any equipment or machinery installed by Tenant (with
or without Landlord's consent) or due to any impact that Tenant's furniture,
equipment, machinery or millwork may have upon the delivery of HVAC to the
Premises. For purposes of this Section 14.1, excessive heat shall be deemed to
result from (a) the installation of machinery or equipment, other than normal
office machinery and equipment, in an area not engineered for such office
machinery and equipment, or (b) the installation and concurrent operation of a
number of normal office machines or pieces of equipment in an area not
engineered for such a concentration. For example, a typical office will provide
comfortable temperatures for its occupant when a normal personal computer is
installed and operated in that office, but it may not do so if an unusually
large computer or a number of smaller computers are installed and operated in
that office. Landlord shall not be liable for its failure to maintain
comfortable atmosphere conditions due to an occupancy lead of more than one
person per one hundred and fifty (150) square feet. Landlord will provide:
standard janitorial service on Monday through Friday only (excluding legal
public holidays celebrated by the federal government); electricity; water;
elevator service; and exterior window-cleaning service. The normal hours of
operation of the Building will be 8:00 a.m. to 6:00 p.m. on Monday through
Friday (except such holidays) and such other hours, if any, as Landlord
determines. If Tenant requires air conditioning or heat beyond the normal hours
of operation, then Landlord will furnish the same, provided Tenant gives
Landlord sufficient advance notice of such requirement. Tenant shall pay for
such extra service in accordance with Landlord's then-current schedule. Except
as otherwise specified herein, Landlord shall not be required to furnish
services and utilities during hours other than the normal hours of operation of
the Building.
14.2 Tenant shall promptly reimburse Landlord on demand for the cost of
any excess or disproportionate utility usage in or in connection with the
Premises (including, but not limited to, water, sewer and chiller usage). Excess
and/or disproportionate usage shall be determined by Landlord (in consultation
with its mechanical engineer) and pursuant to measurement of such usage by
Landlord's energy management system.
14.3 Landlord reserves the fight to curtail or suspend any utility,
service or Building system when necessary or desirable in the reasonable
judgment of Landlord, by reason of accident, emergency, repairs, alterations,
replacements or improvements or any other reason whatsoever, until such cause
has been removed or remedied. In the event of Landlord's failure or inability to
furnish any of the utilities or services required to be furnished by Landlord
hereunder, Landlord shall not have any liability to Tenant; provided, however,
that Landlord shall use good faith efforts to restore such failure or inability
so long as such failure or inability is within Landlord's reasonable control,
and to avoid whenever reasonably possible, interference with the conduct of
Tenant's business on the Premises.
14.4 If any public utility or governmental body requires Landlord or
Tenant to restrict the consumption of any utility or reduce any service to the
Premises or the Building, Landlord and Tenant shall comply with such
requirements whether or not the utilities and services referred to in this
Article X1V are thereby reduced or otherwise affected, without any abatement,
deduction, set-off, rebate or adjustment to the Base Rent or additional rent
payable hereunder.
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ARTICLE XV
----------
LIABILITY OF LANDLORD
---------------------
15.1 Landlord, its employees and agents shall not be liable to Tenant,
any Invitee or any other person on entity for any damage (including indirect and
consequential damage), injury, loss or claim (including claims for the
interruption of or loss of business) based on or arising out of any cause
whatsoever (except as otherwise provided in this Section), including without
limitation the following: repair to any portion of the Premises or the Building;
interruption in the use of the Premises or any equipment therein; any accident
or damage resulting from any use or operation (by Landlord, Tenant or any other
person or entity) of elevators or heating, cooling, electrical, sewerage, or
plumbing or mechanical equipment or apparatus; termination of this Lease by
reason of damage to the Premises or the Building; fire, robbery, theft,
vandalism, mysterious disappearance or any other casualty; actions of any other
tenant of the Building or of any other person or entity; failure or inability to
furnish any service specified in this Lease; and leakage in any part of the
Premises or the Building from water, rain, ice, snow or other cause that may
leak into, or flow from, any part of the Premises or the Building or the Land,
or from drains, pipes or plumbing fixtures in the Premises or the Building or
the Land. If any condition exists which may be the basis of a claim of
constructive eviction, then Tenant shall give Landlord written notice thereof
and a reasonable opportunity to correct such condition, and in the interim
Tenant shall not claim that it has been constructively evicted or is entitled to
a rent abatement. Any property placed by Tenant or Invitees in or about the
Premises, the Building or the Land shall be at the sole risk of Tenant, and
Landlord shall not in any manner be responsible therefor. If any employee of
Landlord receives any package or article delivered for Tenant, then such
employee shall be acting as Tenant's agent for such purpose and not as
Landlord's agent. Notwithstanding the foregoing provisions of this Section,
Landlord shall not be released from liability to Tenant for any physical injury
to any natural person caused by Landlord's willful misconduct or negligence of
the extent such injury is not covered by insurance (a) carried by Tenant or such
person, or (b) required by this Lease to be carried by Tenant.
15.2 Tenant shall reimburse Landlord for, and shall indemnify, defend
upon request and hold Landlord, its employees and agents harmless from and
against, all costs, damages, claims, liabilities, expenses (including attorney's
fees), losses and court costs suffered by or claimed against Landlord, directly
or indirectly, based on or arising out of, in whole or in part, (a) use and
occupancy of the Premises or the business conducted therein, (b) any act or
omission of Tenant or any Invitee, (c) any breach of Tenant's obligations under
this Lease, including failure to surrender the Premises upon the expiration or
earlier termination of the Lease Term, or (d) any entry by Tenant or any Invitee
upon the Land prior to the Lease Commencement Date.
Landlord shall reimburse Tenant for, and shall indemnify, defend
upon request and hold Tenant, its employees and agents harmless from and against
all cost, damages, claims, liabilities, expenses (including attorney's fees),
losses and court costs suffered by or claimed against Tenant, directly or
indirectly, based on or arising out of, in whole or in part, (a) injury, death
or property damage occurring in or about the Premises or Building caused by the
negligence or willful misconduct of Landlord or (b) any breach of Landlord's
obligations under this Lease.
15.3 If any landlord hereunder transfers the Building or such landlord's
interest therein, then such landlord shall not be liable for any obligation or
liability based on or arising out of any event or condition occurring after such
transfer. Tenant shall attorn to such transferee and, within five (5) days after
request, shall execute, acknowledge and deliver any document submitted to Tenant
confirming such attornment.
15.4 Tenant shall not have the right to offset or deduct any amount
allegedly owed to Tenant pursuant to any claim against Landlord from any rent or
other sum payable to Landlord. Tenant's sole remedy for recovering upon such
claim shall be to institute an independent action against Landlord.
15.5 If Tenant or any Invitee is awarded a money judgment against
Landlord, then recourse for satisfaction of such judgment shall be limited to
execution against Landlord's estate and interest in the Building and the Land.
No other asset of Landlord, any partner, director or office of Landlord
(collectively, "Officer") or any other person or entity shall be available to
satisfy or subject to such judgment, nor shall any Officer or other person or
entity have personal liability for satisfaction of any claim or judgment against
Landlord or any Officer.
ARTICLE XVI
-----------
RULES
-----
16.1 Tenant and Invitees shall observe the rules specified in Exhibit D
attached hereto. Tenant and Invitees shall also observe any other reasonable
rule that Landlord may promulgate for the operation or maintenance of the
Building, provided that notice thereof is given and such rule is not
inconsistent with the provisions of this Lease. Landlord shall have no duty to
enforce such rules or any provision of any other lease against any other tenant.
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ARTICLE XVII
------------
DAMAGE OR DESTRUCTION
---------------------
17.1 If the Premises or the Building are totally or partially damaged or
destroyed thereby rendering the Premises totally or partially untenantable, then
Landlord shah repair and restore the Premises (except as hereinafter provided)
and the Building to substantially the same condition in which they were in prior
to such damage or destruction; provided, however, that if in Landlord's
reasonable judgment such repair and restoration cannot be completed within
ninety (90) days after the occurrence of such damage or destruction (taking into
account the time needed for effecting a satisfactory settlement with any
insurance company involved, removal of debris, preparation of plans and issuance
of all required governmental permits), then Landlord shall have the right, at
its sole option, to terminate this Lease as of the seventy-fifth (75) day after
such damage or destruction by giving written notice of termination within
forty-five (45) days after the occurrence of such damage or destruction. If the
Premises or any part thereof are damaged or destroyed by fire or any other
cause, Tenant shall give prompt notice thereof to Landlord. Tenant shall be
responsible for any additional expenses incurred in the event that Tenant does
not promptly provide such notice. If this Lease is terminated pursuant to this
Article, then rent shall be apportioned (based on the portion of the Premises
which is usable after such damage or destruction) and paid to the date of
termination. If this Lease is not terminated as a result of such damage or
destruction, then until such repair and restoration of the Premises are
substantially complete, Tenant shall be required to pay the Base Rent and
additional rent only for the portion of the Premises that is usable while such
repair and restoration are being made; provided, however, that if such damage or
destruction was caused by the act or omission of Tenant or any Invitees, then
Tenant shall be entitled to a rent reduction only to the extent that Landlord
has received loss of rent insurance proceeds. If this Lease is not terminated as
a result of such damage or destruction, then Landlord shall bear the expenses of
such repair and restoration of the Premises and the Building; provided, however,
that if such damage or destruction was caused by the negligence or willful act
or omission of Tenant or any Invitee, then Tenant shall pay the amount by which
such expenses exceed the insurance proceeds, if any, actually received by
Landlord on account of such damage or destruction; and provided further,
however, that in no event shall Landlord be required to repair or restore any
work and materials not deemed by Landlord to be building standard work and
materials, any Alteration previously made by Tenant or any of Tenant's trade
fixtures, furnishings, equipment or personal property. Notwithstanding anything
herein to the contrary, Landlord shall have the right to terminate this Lease if
(a) the holder of any Mortgage fails or refuses to make such insurance proceeds
available for such repair and restoration, (b) zoning or other applicable laws
or regulations do not permit such repair and restoration, or (c) the Building is
damaged by fire or casualty (whether or not the Premises has been damaged) to
such an extent that Landlord decides, in its sole and absolute discretion, not
to rebuild or reconstruct the Building. Notwithstanding anything contained
herein to the contrary, if Landlord shall not elect to terminate this Lease as
set forth above, then Landlord shall so restore the Premises and the Building
within one hundred and twenty (120) days after the occurrence of such damage or
destruction, and if Landlord shall so fail to restore, Tenant shall have the
right to terminate this Lease upon ten (10) days prior written notice to
Landlord.
ARTICLE XVIII
-------------
CONDEMNATION
------------
18.1 If one-third or more of the Premises or occupancy thereof shall be
taken or condemned by any governmental or quasi-governmental authority for any
public or quasi-public use or purpose or sold under threat of such a taking or
condemnation (collectively, "condemned"), then this Lease shall terminate on the
date title vests in such authority and rent shall be apportioned as of such
date. If less than one-third of the Premises or occupancy thereof is condemned,
then this Lease shall continue in full force and effect as to the part of the
Premises not condemned, except that as of the date title vests in such authority
Tenant shall not be required to pay the Base Rent and additional rent with
respect to the part of the Premises condemned, and rent shall xxxxx to the
extent which Tenant is unable to use the Premises during any demolition or
reconstruction of the Building. Notwithstanding anything contained herein to the
contrary, Landlord shall promptly restore the Premises remaining after such
taking, and if Landlord shall fail to complete such restoration within one
hundred and twenty (120) days after such taking, Tenant shall have the right to
terminate this Lease upon ten (10) days prior written notice to Landlord.
Notwithstanding anything herein to the contrary, if any portion of the Land or
the Building is condemned, and the nature, location or extent of such
condemnation is such that Landlord elects, in its sole and absolute discretion,
to demolish the Building (in whole or in part), then Landlord may terminate this
Lease by giving sixty (60) days prior written notice of such termination to
Tenant at any time after such condemnation and this Lease shall terminate on the
date specified in such notice and rent shall be adjusted to such date.
18.2 All awards, damages and other compensation paid by such authority on
account of such condemnation shall belong to Landlord, and Tenant assigns to
Landlord all rights to such awards, damages and compensation. Tenant shall not
make any claim against Landlord or the authority for any portion of such award,
damages or compensation attributable to damage to the Premises, value of the
unexpired portion of the Lease Term, loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however, shall
prevent Tenant from pursuing a separate claim against the authority for the
value of furnishings and trade fixtures installed in the Premises at Tenant's
expense and for relocation expenses, provided that such claim is stated
separately from any award to Landlord and provided further that such claim shall
in no way diminish the award, damages or compensation otherwise payable to
Landlord in connection with such condemnation.
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ARTICLE XIX
DEFAULT
19.1 An Event of Default is any one or more of the following: (a)
Tenant's failure to make when due any payment of the Base Rent, additional rent
or other sum due hereunder, within ten (10) days after notice of such failure
from Landlord; (b) Tenant's failure to perform or observe any other term,
covenant or condition hereof, within thirty (30) days after notice thereof from
Landlord, or if such failure may not reasonably be cured within said thirty (30)
day period, then for such further period as may be reasonably required so long
as such cure is commenced within said thirty (30) day period, and is thereafter
diligently prosecuted to completion; (c) Tenant's failure to occupy continuously
the Premises for two (2) consecutive months; (d) an Event of Bankruptcy as
specified in Article XX; or (e) Tenant's dissolution or liquidation. Landlord
notice as required per subsections (a) and (b) per this section shall be limited
to two times per year. Thereafter, Landlord shall not be obligated to provide
Tenant with notice of default.
19.2 If there shall be an Event of Default, including an Event of Default
prior to the Lease Commencement Date, then the provisions of this Section shall
apply. Landlord shall have the right, at its sole option, to terminate this
Lease. In addition, with or without terminating this Lease, Landlord may
re-enter, terminate Tenant's right of possession and take possession of the
Premises. The provisions of this Article shall operate as a notice to quit, any
other notice to quit or of Landlord's intention to re-enter the Premises being
expressly waived. If necessary, Landlord may proceed to recover possession of
the Premises under applicable laws, by such other proceedings, including
re-entry and possession, or by using such force as may be necessary. If Landlord
elects to terminate this Lease and/or elects to terminate Tenant's right of
possession, then everything in this Lease to be done by Landlord shall cease,
without prejudice, however, to Tenant's liability for all rent and other sums
due hereunder. Landlord may relet the Premises or any part thereof, alone or
together with other premises, for such term(s) (which may extend beyond the date
on which the Lease Term would have expired but for Tenant's default) and on such
terms and conditions (which may include concessions or free rent and alterations
of the Premises) as Landlord, in its sole discretion, may determine, but
Landlord shall not be liable for, nor shall Tenant's obligations be diminished
by reason of, Landlord's failure to relet the Premises or collect any rent due
upon such reletting. If Landlord relets the Premises and collects rent in excess
of the Base Rent and additional rent owed by Tenant hereunder, Landlord shall be
entitled to retain any such excess and Tenant shall not be entitled to a credit
therefor. Whether or not this Lease is terminated, Tenant nevertheless shall
remain liable for the Base Rent, additional rent and damages which may be due or
sustained, and all costs, fees and expenses (including without limitation,
reasonable attorney's fees, brokerage fees and expenses incurred in placing the
Premises in building standard rentable condition) incurred by Landlord in
pursuit of its remedies and in renting the Premises to others from time to time.
Tenant shall be liable for all rent that would have applied to any period of
occupancy of the Premises (whether or not any such period has elapsed) for which
Tenant was hereunder granted occupancy without any obligation to pay such rent
(if any). Tenant shall also be liable for additional damages which at Landlord's
election shall be either: (a) an amount equal to the Base Rent and additional
rent which would have become due during the remainder of the Lease Term, less
the amount of rental, if any, which Landlord receives during such period from
others to whom the Premises may be rented (other than any additional rent
payable as a result of any failure of such other person to perform any of its
obligations), in which case such damages shall be computed and payable in
monthly installments, in advance, on the first day of each calendar month
following Tenant's default and continuing until the date on which the Lease Term
would have expired but for Tenant's default provided, however, that separate
suits may be brought to collect any such damages for any month(s), and such
suits shall not in any manner prejudice Landlord's right to collect any such
damages for any subsequent month(s), or Landlord may defer any such suit until
after the expiration of the Lease Term, in which event such suit shall be deemed
not to have accrued until the expiration of the Lease Term). Tenant waives any
right of redemption, re-entry or restoration of the operation of this Lease
under any present or future law, including any such right which Tenant would
otherwise have if Tenant shall be dispossessed for any cause. As used in the
preceding sentence, the words "redemption", "re-entry", "retention", and
"dispossessed" shall not be deemed restricted to their technical or legal
meanings. Whether or not this Lease and/or Tenant's right of possession is
terminated, Landlord shall have the right to terminate by written notice any
renewal or expansion right contained in this Lease and to grant or withhold any
consent or approval pursuant to this Lease in its sole and absolute discretion.
With respect to Tenant liabilities per this section should Tenant be in default
of this Lease, damages due from Tenant shall be calculated as if Tenant elected
to terminate this lease in accordance with Section 3.4.
19.3 Landlord's rights and remedies set forth in this Lease are
cumulative and in addition to Landlord's other rights and remedies at law or in
equity, including those available as a result of any anticipatory breach of this
Lease. Landlord's exercise of any such right or remedy shall not prevent the
concurrent or subsequent exercise of any other right or remedy. Landlord's delay
or failure to exercise or enforce any of Landlord's rights or remedies or
Tenant's obligations shall not constitute a waiver of any such rights, remedies
or obligations. Landlord shall not be deemed to have waived any default unless
such waiver expressly is set forth in an instrument signed by Landlord. Any such
waiver shall not be construed as a waiver of any covenant or condition except as
to the specific circumstances described in such waiver. Neither Tenant's payment
of an amount less than a sum due nor Tenant's endorsement or statement on any
check or letter accompanying such payment shall be deemed an accord and
satisfaction. Notwithstanding any request or designation by Tenant, Landlord may
apply any payment received from Tenant to any payment then due. Landlord may
accept the same without prejudice to Landlord's right to recover the balance of
such sum or to pursue other remedies. Re-entry and acceptance of keys shall not
be considered an acceptance of a surrender of this Lease.
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19.4 If more than one natural person and/or entity shall constitute
Tenant or any Guarantor, then the liability of each person or entity shall be
joint and several. If Tenant or any Guarantor is a general partnership or other
entity the partners or members of which are subject to personal liability, then
the liability of each such partner or member shall be joint and several.
19.5 If Tenant fails to make any payment to any third party or to do any
act herein required to be made or done by Tenant, then Landlord may, but shall
not be required to, make such payment or do such act. Landlord's taking such
action shall not be considered a cure of such failure by Tenant nor prevent
Landlord from pursuing any remedy it is otherwise entitled to in connection with
such failure. If Landlord elects to make such payment or do such act, then all
expenses incurred, plus interest thereon at the Default Rate (as hereinafter
defined) from the date incurred to the date of payment thereof by Tenant, shall
constitute additional rent. The Default Rate shall equal the rate per annum
which is the lesser of eighteen percent (18%) or the highest rate permitted by
law.
19.6 If Tenant fails to make any payment of the Base Rent, additional
rent or any other sum payable to Landlord after expiration of any grace periods,
then Tenant shall pay a late charge equal to the greater of (i) five percent (5
%) of the amount of such payment or (ii) three hundred dollars ($300.00). Such
payment and such late fee shall bear interest at the Default Rate from the date
such payment was due to the date of payment. If Tenant is in default of this
Lease for the same or substantially the same reason more than twice during any
Lease Year, then, at Landlord's election, Tenant shall not have the right to
cure such repeated default. In the event of Landlord's election not to allow a
cure of a repeated default, Landlord shall have all the rights and remedies
provided herein and by law. If Tenant shall deliver to Landlord a check that is
returned unpaid for any reason, such payment shall be deemed never to have been
made and, additionally, Tenant shall pay Landlord twenty-five dollars ($25.00)
for Landlord's expense in connection therewith (plus any out-of-pocket expenses
incurred in connection therewith) and said charge shall be payable to Landlord
on the first day of the next succeeding month as additional rent.
ARTICLE XX
----------
BANKRUPTCY
----------
20.1 An Event of Bankruptcy is: (a) Tenant's, a Guarantor's or any
general partner (a "General Partner") of Tenant's becoming insolvent, as that
term is defined in Title 11 of the United States Code (the "Bankruptcy Code"),
or under the insolvency laws of any state (the "Insolvency Laws"); (b)
appointment of a receiver or custodian for any property of Tenant, a Guarantor
or a General Partner, or the institution of a foreclosure or attachment action
upon any property of Tenant, a Guarantor or a General Partner not released,
discharged or discontinued within forty-five (45) days; (c) filing of a
voluntary petition by Tenant, a Guarantor or a General Partner under the
provisions of the Bankruptcy Code or Insolvency Laws; (d) filing of an
involuntary petition against Tenant, a Guarantor or a General Partner as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which either (1) is
not discussed within forty-five (45) days after filing, or (2) results in the
issuance of an order for relief against the debtor; (e) Tenant's a Guarantor's
or a General Partner's making or consenting to an assignment for the benefit of
creditors or a composition of creditors; or (f) an admission by Tenant or a
Guarantor of its inability to pay debts as they become due.
20.2 Upon occurrence of an Event of Bankruptcy, Landlord shall have all
rights and remedies available pursuant to Article XIX; provided, however, that
while a case (the "Case") in which Tenant is the subject debtor under the
Bankruptcy Code is pending, Landlord's right to terminate this Lease shall be
subject, to the extent required by the Bankruptcy Code, to any rights of Tenant
or its trustee in bankruptcy (collectively, "Trustee") to assume or assign this
Lease pursuant to the Bankruptcy Code. Trustee shall not have the right to
assume or assign this Lease unless Trustee promptly (a) cures all defaults under
this Lease, (b) compensates Landlord for all damages incurred as a result of
such defaults, (c) provides adequate assurance of future performance on the part
of Tenant as debtor in possession or Tenant's assignee, and (d) complies with
all other requirements of the Bankruptcy Code. If Trustee fails to assume or
assign this Lease in accordance with the requirements of the Bankruptcy Code
within sixty (60) days after the initiation of the Case, then Trustee shall be
deemed to have rejected this Lease. Adequate assurance of future performance
shall require that, at a minimum, all of the following minimum criteria be met:
(1) Tenant's gross income (as defined by generally accepted accounting
principles) during the thirty (30) days preceding the filing of the Case must be
greater than ten (10) times the next monthly installment of the Base Rent and
additional rent; (2) Both the average and median of Tenant's monthly gross
income (as defined by generally accepted accounting principles) during the seven
(7) months preceding the filing of the Case must be greater than ten (10) times
the next monthly installment of the Base Rent and additional rent; (3) Trustee
must pay its estimated pro rata share of the cost of all services performed or
provided by Landlord (whether directly or through agents or contractors and
whether or not previously included as part of the Base Rent) in advance of the
performance or provision of such services; (4) Trustee must agree that Tenant's
business shall be conducted in a first-class manner, and that no liquidating
sale, auction or other non-first-class business operation shall be conducted in
the Premises; (5) Trustee must agree that the use of the Premises as stated in
this Lease shall remain unchanged and that no prohibited use shall be permitted;
(6) Trustee must agree that the assumption or assignment of this Lease shall not
violate or affect the rights of other tenants in the Building and the Complex;
(7) Trustee must pay at the time the next monthly installment of the Base Rent
is due, in addition to such installment, an amount equal to the monthly
installments of the Base Rent and additional rent due for the next six (6)
months thereafter, such amount to be held as a
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security deposit; (8) Trustee must agree to pay, at any time Landlord draws on
such security deposit, the amount necessary to restore security deposit to its
original amount; and (9) All assurances of future performance specified in the
Bankruptcy Code must be provided.
ARTICLE XXI
-----------
SUBORDINATION
-------------
21.1 This Lease is subject and subordinate to the hen, provisions,
operation and effect of all mortgages, deeds of trust, ground leases or other
security instruments which may now or hereafter encumber the Building or the
Land (individually, "Mortgage" and collectively, "Mortgages"), to all funds and
indebtedness intended to be secured thereby, and to all renewals, extensions,
modifications, recastings or refinancings thereof. The holder of any Mortgage to
which this Lease is subordinate shall have the right (subject to any required
approval of the holders of any superior Mortgage) at any time to declare this
Lease to be superior to the lien, provisions, operation and effect of such
Mortgage and Tenant shall execute, acknowledge and deliver all confirming
documents required by such holder.
21.2 In confirmation of the foregoing subordination, Tenant shall at
Landlord's request promptly execute any requisite or appropriate document.
Tenant appoints Landlord as Tenant's attorney-in-fact to execute any such
document for Tenant if Tenant fails to execute same within ten (10) days after
request therefor. 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 any such 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. If this Lease is not
extinguished upon such sale or by the purchaser following such sale, then, at
the request of such purchaser, Tenant shall attorn to such purchaser and shall
recognize such purchaser as the landlord under this Lease. Upon such attornment
such purchaser shall not be (a) bound by any payment of the Base Rent or
additional rent more than one (1) month in advance, (b) bound by any amendment
of this Lease made without the consent of the holder of each Mortgage existing
as of the date of such amendment, (c) liable for damages for any breach, act or
omission of any prior landlord, or (d) subject to any offsets or defenses which
Tenant might have against any prior landlord. Within five (5) days after
receipt, Tenant shall execute, acknowledge and deliver any requisite or
appropriate document submitted to Tenant confirming such attornment.
21.3 If any lender providing financing secured by the Building requires
as a condition of such financing that modifications to this Lease be obtained,
and provided that such modifications (a) are reasonable, (b) do not adversely
affect in a material manner Tenant's use of the Premises as herein permitted,
and (c) do not increase the rent and other sums to be paid by Tenant, then
Landlord may submit to Tenant an amendment to this Lease incorporating such
modifications. Tenant shall execute, acknowledge and deliver such amendment to
Landlord within five (5) days after receipt.
21.4 Landlord shall, at Tenants request, provide it's best efforts to
obtain so-called non-disturbance and attornment agreements in Tenant's favor
from all present and future mortgagees.
ARTICLE XXII
------------
COVENANTS OF LANDLORD
---------------------
22.1 Landlord covenants that if Tenant shall perform timely all of its
obligations, then, subject to the provisions of this Lease, Tenant shall during
the Lease Term peaceably and quietly occupy and enjoy possession of the Premises
without hindrance by Landlord or anyone claiming through Landlord.
22.2 Landlord reserves the right to: (a) change the street address and
name of the Building or the Complex; (b) change the arrangement and location of
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the Building and the Complex, and, in connection with
such work, to temporarily close door entry ways, common or public spaces and
corridors of the Building or the Complex so long as the Premises remain
reasonably accessible; (c) erect, use and maintain pipes and conduits in and
through the Premises; (d) grant to anyone the exclusive right to conduct any
particular business in the Building or the Complex not inconsistent with the
permitted use of the Premises; (e) use or lease exclusively the roof areas, the
sidewalks and other exterior areas; (f) resubdivide the Land or to combine the
Land with other lands so long as Real Estate Taxes shall only relate to the Land
and Building as now constituted; (g) construct improvements (including kiosks)
on the Land and in the public and common areas of the Building; (h) relocate or
change roads, driveways and parking areas and to alter the means of access to
all or any portion of the Building or Complex; (i) install and display signs,
advertisements and notices on any part of the exterior or interior of the
Building; (i) install such security systems and devices as Landlord deems
appropriate; (k) create easements over the Premises and in the entrances, aisles
and stairways of any parking areas for utilities, telephone lines, sanitary
sewer, storm sewer, water lines, pipes, conduits, drainage ditches, sidewalks,
pathways, emergency vehicles, and ingress and egress for the use and benefit of
others, without Tenant joining in the execution thereof and the Lease shall
automatically be subject and subordinate thereto; and (1) alter the site plan,
landscaping, walkways and common areas outside the Building within the context
of general site improvements, repairs and maintenance. Exercise of any such
right shall not be considered a constructive eviction or a disturbance of
Tenant's business or
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occupancy.
ARTICLE XXIII
-------------
GENERAL PROVISIONS
------------------
23.1 Tenant acknowledges that neither Landlord nor any broker, agent or
employee of Landlord has made any representation or promise with respect to the
Premises or the Building or the Land except as expressly set forth herein, and
no right is being acquired by Tenant except as expressly set forth herein. This
Lease contains the entire agreement of the parties and supersedes all prior
agreements, negotiations, letters of intent, proposals, representations,
warranties and discussions between the parties. This Lease may be changed in any
manner only by an instrument signed by both parties.
23.2 Nothing contained in this Lease shall be construed as creating any
relationship between Landlord and Tenant other than that of landlord and tenant.
23.3 Landlord and Tenant each warrants that in connection with this Lease
it has not employed or dealt with any broker, agent or finder other than the
Broker(s). Tenant shall indemnify and hold Landlord harmless from and against
any claim for brokerage or other commissions asserted by any other broker, agent
or finder employed by Tenant or with whom Tenant has dealt.
23.4 From time to time upon ten (10) days prior written notice, Tenant
and each subtenant, assignee or occupant of Tenant shall execute, acknowledge
and deliver to Landlord and any designee of Landlord a written statement
certifying: (a) that this Lease is unmodified and in full force and effect (or
that this Lease is in full force and effect as modified and stating the
modifications); (b) the dates to which rent and any other charges have been
paid; (c) that Landlord is not in default in the performance of any obligation
(or specifying the nature of any default); (d) the address to which notices are
to be sent; (e) that this Lease is subject and subordinate to all Mortgages;(f)
that Tenant has accepted the Premises and all work thereto has been completed
(or specifying the incomplete work); and (g) such other matters as Landlord may
request. Any such statement may be relied upon by any owner of the Building or
the Land, any prospective purchaser of the Building or the Land, any holder or
prospective holder of a Mortgage or any other person or entity. Tenant
acknowledges that time is of the essence to the delivery of such statements and
Tenant's failure to deliver timely such statements may cause substantial damages
resulting from, for example, delays in obtaining financing secured by the
Building.
From time to time upon ten (10) days prior written notice, Landlord
shall execute, acknowledge and deliver to Tenant, and any designee of Tenant, a
written statement certifying: (a) that this Lease is unmodified and in full
force and effect (or that this Lease is in full force and effect as modified and
stating the modifications); (b) the dates to which rent and any other charges
have been paid; (c) that Tenant is not in default in the performance of any
obligation (or specifying the nature of any default); (d) the address to which
notices are to be sent; (e) that this Lease is subject and subordinate to all
Mortgages; (f) such other matters as Tenant may request. Any such statement may
be relied upon by any person or entity. Landlord acknowledges that time is of
the essence to the delivery of such statements and Landlord's failure to deliver
timely such statements may cause substantial damages.
23.5 LANDLORD, TENANT, GUARANTORS AND GENERAL PARTNERS WAIVE TRIAL BY
JURY IN ANY ACTION, CLAIM OR COUNTERCLAIM BROUGHT IN CONNECTION WITH ANY MATTER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE LANDLORD-TENANT
RELATIONSHIP, TENANT'S USE OR OCCUPANCY OF THE PREMISES OR ANY CLAIM OF INJURY
OR DAMAGE. Tenant consents to service of process and any pleading relating to
any such action at the Premises; provided, however, that nothing herein shall be
construed as requiring such service at the Premises. Landlord, Tenant, all
Guarantors and all General Partners waive any objection to the venue of any
action filed in any court situated in the jurisdiction in which the Building is
located and waive any right under the doctrine of forum non conveniens or
otherwise to transfer any such action filed in any such court to any other
court.
23.6 All notices or other required communications shall be in writing and
shall be deemed duly given only when delivered in person (with receipt
therefor), or when sent by certified or registered mail, return receipt
requested, postage prepaid, to the following addresses: (a) if to Landlord, at
the Landlord Address for Notices; or (b) if to Tenant, at the Tenant Address for
Notices. Either party may change its address for the giving of notices by notice
given in accordance with this Section. If Landlord or the holder of any Mortgage
notifies Tenant that a copy of each notice to Landlord shall be sent to such
holder at a specified address, then Tenant shall send (in the manner specified
in this Section and at the same time such notice is sent to Landlord) a copy of
each such notice to such holder, and no such notice shall be considered duly
sent unless such copy is so sent to such holder. If Tenant claims that Landlord
has breached any obligation, then Tenant shall send such holder notice
specifying the breach and permit such holder a reasonable opportunity to cure
the breach.
23.7 Each provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law. If any provision or its application to any
person or circumstance shall to any extent be invalid or unenforceable, then
such provision shall be deemed to be replaced by the valid and enforceable
provision most substantively similar thereto, and the remainder of this Lease
and the application of such provision to other persons or circumstances shall
not be affected.
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23.8 Feminine, masculine and neuter pronouns shall be substituted for
those of another form, and the plural or singular shall be substituted for the
other number, in any place in which the context may require.
23.9 The provisions of this Lease shall be binding upon and inure to the
benefit of the parties and their respective representatives, successors and
assigns, subject to the provisions herein restricting assignment or subletting.
23.10 Landlord and its designees may enter the Premises at any time, in
the company of an officer or employee of Tenant after reasonable oral notice
(except in the case of emergencies) without charge therefor and without
diminution of the rent payable by Tenant, to inspect and exhibit the Premises
and make such alterations and repairs as Landlord may deem necessary (including,
but not limited to, alterations and repairs for a new tenant during the last
sixty (60) days of the Lease Term if Tenant has vacated the Premises).
23.11 This Lease shall be governed by the laws of the jurisdiction in
which the Building is located.
23.12 Headings are used for convenience and shall not be considered when
construing this Lease.
23.13 The submission of a copy of this document to Tenant shall not
constitute an offer or option to lease. This Lease shall become effective and
binding only upon execution and delivery by both Landlord and Tenant.
23.14 Time is of the essence with respect to each obligation of Tenant and
Landlord.
23.15 This Lease may be executed in multiple counterparts, each of which
is deemed an original and all of which constitute one and the same document.
23.16 Neither this Lease nor a memorandum thereof shall be recorded.
23.17 Landlord reserves the right to make reasonable changes to the plans
and specifications for the Building without Tenant's consent, provided such
changes do not alter the character of the Building as a first-class office
building.
23.18 Except as otherwise provided in this Lease, any additional rent or
other sum owed by Tenant to Landlord, and any cost, expense, damage or liability
incurred by Landlord for which Tenant is liable, shall be considered additional
rent payable pursuant to this Lease and paid by Tenant no later than thirty (30)
days after the date Landlord notified Tenant of the amount thereof.
23.19 Tenant's liabilities existing as of the expiration or earlier
termination of the Lease Term shall survive such expiration or earlier
termination.
23.20 If Landlord or Tenant is in any way delayed or prevented from
performing any obligation, except for payment of monetary obligations, due to
fire, act of God, governmental act or failure to act, labor dispute, inability
to procure materials or any cause beyond Landlord's reasonable control (whether
similar or dissimilar to the foregoing events), then the time for performance of
such obligation shall be excused for the period of such delay or prevention and
extended for the time necessary to compensate for the period of such delay or
prevention.
23.21 The deletion of any printed, typed or other portion of this Lease
shall not evidence an intention to contradict such deleted portion. Such deleted
portion shall be deemed not to have been inserted in this Lease.
23.22 The person executing this Lease on Tenant's behalf and the person
executing this Lease on Landlord's behalf, each warrants that such person is
duly authorized to so act.
23.23 Intentionally Deleted.
23.24 If any Base Rent or additional rent is collected by or through an
attorney or if Landlord requires the services of an attorney to cause Tenant to
cure any default, to evict Tenant or to pursue any other remedies to which
Landlord is entitled hereunder, Tenant shall pay the reasonable fees of such
attorney together with all reasonable costs and expenses incurred by Landlord in
connection with such matters, whether or not any legal proceedings have been
commenced.
23.25 Intentionally Deleted.
23.26 Landlord agrees to make readily achievable modifications in order to
comply with applicable laws and regulations pertaining to access by handicapped
persons, including, but not limited to, the Americans with Disabilities Act
("ADA"), with respect to the Building and the parking lot and other common
areas. Tenant acknowledges its understanding that the ADA code makes the Tenant
responsible for compliance therewith in Tenant Premises, during the term of this
lease.
15
21
ARTICLE XXIV
------------
PARKING
-------
24.1 During the Lease Term, Tenant shall have the right to use (on a
non-exclusive first-come, first-served basis) the Parking Lot for the parking of
passenger automobiles in the parking areas designed from time to time by
Landlord for the use of tenants of the Building, in a ratio of 2.83 spaces per
one thousand rentable square feet leased, rounded to the nearest full space.
24.2 Landlord reserves the right to establish and modify or amend rules
and regulations governing the use of such parking areas. Landlord shall have the
right to revoke a user's parking privilege in the event such user fails to abide
by the rules and regulations governing the use of such parking areas. Tenant
shall be prohibited from using such parking areas for purposes other than for
parking registered vehicles. The storage or repair of vehicles in such parking
areas shall be prohibited.
24.3 Tenant shall not assign or sublet any parking rights granted to
Tenant herein. Any attempted assignment or sublease shall be null and void.
24.4 Landlord reserves the right to institute a valet parking system or a
magnetic card access system or any other parking or permit system it deems
appropriate.
24.5 Landlord shall not be liable for any damage or loss to any
automobile (or property therein) parked in, on or about such parking areas, or
for any injury sustained by any person in, on or about such areas. If Landlord,
in its sole and absolute discretion, deems it necessary to repair or maintain
such parking areas, Landlord shall have the right to substitute use of other
parking areas.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date first above written.
WITNESS: LANDLORD:
Nationwide Life Insurance Company
---------------------------------
/s/ Xxx Xxx Xxxxx By: /s/ Xxxxxx X. XxXxxxxxx
-------------------------- ------------------------------
Xxxxxx X. XxXxxxxxx
Title: Vice President
--------------------------
Date: 11-29-93
---------------------------
WITNESS: TENANT:
GeoTel Communications Corporation
---------------------------------
/s/ Xxxxx Xxxxxx By: /s/ G. Xxxxx Xxxxxxx
--------------------------- ------------------------------
Title: President & CEO
---------------------------
Date: 11-22-93
---------------------------
16
22
EXHIBIT B
---------
WORKLETTER
----------
Landlord at its sole cost and expense shall perform the following work:
(a) Create a new signage program for the property, including a tenant
directory in main lobby of Building. The existing tenant signs shall be removed
from the grounds and the lobby area.
(b) Upgrade main lobby area of the building with new flooring and new
paint on walls. Remove existing guard desk and glass case.
(c) Deliver all building systems (including mechanical, electrical,
HVAC, lighting and outlets) in good working order.
(d) Install a "coffee station" comprised of sink with running water,
formica countertop and stock lower cabinetry. This will be installed in a
mutually agreeable location on the wall contiguous to the bathroom.*
The time-frame for completing items (c) and (d) above shall be within one
month of lease execution date. Landlord's time-frame for completion of items
9(a) and (b) above shall be five (5) months of lease execution date.
Landlord shall install a wall demising Tenant Premises from vacant space.
Landlord shall be responsible for installing locks in doors leading to the
common corridor. Landlord may, but shall not be obligated to, reconfigure the
Common Area connecting the second floor lobby to the second floor bathrooms. In
this instance, at Tenant's option, the room located adjacent to Tenant entry may
be demolished.
* Install 4 locks on 3 rooms during temporary occupancy and add 1 room.
B1
23
EXHIBIT "C"
00 XXXXXX XXXX,XXXXXXXXX, XXXXXXXXXXXXX
SAMPLE OPERATING CHARGES INCLUDING REAL ESTATE TAXES
===================================
P.S.F.
ANNUALLY
--------
(1) Building Insurance $ .09
(2) Trash Removal .12
(3) Landscape Maintenance .16
(4) Security ** .16
(5) Elevator Service .04
(6) HVAC Maintenance .13
(7) Other Utilities
(Water, Septic, Common area electric) .32
(8) Payroll & Related* .17
(9) Repairs & Maintenance .12
(10) Snow Removal/Parking Lot Maintenance .11
(11) General/Administrative .33
12. Nightly Cleaning of Common Areas .18
-----
SUBTOTAL 1.93
13. Real Estate Taxes .95
-----
TOTAL 2.88
* Represents a portion of the salary of a part-time, on-site, full-time, on
call building supervisor.
** Nightly car patrol and check of building two times per night on weekdays,
and three times per day during weekends.
B2
24
EXHIBIT A
PLAN SHOWING PREMISES
[GRAPHIC: FLOOR 2]
25
Landlord's Acknowledgement
--------------------------
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 29th of Nov.,
1993, by Xxxxxx X. XxXxxxxxx, Vice President (title) of Nationwide Life
Insurance Company, an Ohio corporation, on behalf of the corporation.
(SEAL) [LOGO] Xxx Xxx Xxxxx /s/ Xxx Xxx Xxxxx
Notary-Public-State of Ohio --------------------------
My Commission expires Notary Public
10-20-95
-----------------------
My commission expires:
Tenant's Acknowledgement
------------------------
STATE OF Massachusetts )
) SS:
COUNTY OF Suffolk )
The foregoing instrument was acknowledged before me this 22 of November,
1993, by G. Xxxxx Xxxxxxx, President & CEO (title) of GeoTel Communications Co.
a Massachusetts corporation, on behalf of the corporation
(SEAL) /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Notary Public
My commission expires:
XXXXXXXXX X. XXXXXX
Notary Public
My Commission Expires Dec. 4, 1998
17
26
AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE made this 28TH day of December, 1994 ("the
Effective Date") by and between NATIONWIDE LIFE INSURANCE COMPANY ("Landlord")
and GEOTEL COMMUNICATIONS CORPORATION ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have heretofore entered into a Lease, dated
November 29, 1993, covering certain premises located in the building known as 00
Xxxxxx Xxxx, Xxxxxxxxx, XX, said premises being more particularly described in
said Lease, attached hereto and incorporated herein, and
WHEREAS, Landlord and Tenant desire to amend said Lease in certain
respects.
NOW, THEREFORE, in consideration of mutual promises contained herein,
Landlord and Tenant agree as follows:
1. PREMISES. The Premises will be increased by 0000 Xxxxxxxx Xxxxxx Feet
(RSF) ("Additional Space") to a total of 14,356 RSF. The Additional Space is
located on the second floor as indicated in Exhibit A to this Amendment
(Attached hereto and incorporated herein).
2. OCCUPANCY DATE. Occupancy will occur in three phases:
Phase I 3500 RSF on the earlier of completion of tenant improvements
or occupancy.
Phase II 1500 RSF on or before 10-01-95 (Occupancy Date)
Phase III 2356 RSF on or before 01-01-96 (Occupancy Date)
So long as Tenant honors the size constraint detailed in this Section 2
above, the Tenant, at its own discretion, may occupy any section, or
non-contiguous sections, of the Additional Space. However, in the event that
Tenant requires occupancy of additional space prior to the Phase-in dates,
Tenant may occupy such additional space, and shall pay the Landlord for the
additional space in accordance with Section 3 of this Amendment.
3. BASE RENT. Tenant shall pay to Landlord Base Rent at a rate which is at
the same amount as the Lease. Also consistent with the Lease, Tenant shall pay
its Pro Rata Share of the Building Operating Charges. Tenant's Pro Rata Share
shall be modified as follows:
Phase I 15.79% (10,500 RSF)
Phase II 18.05% (12,000 RSF)
Phase III 21.59% (14,356 RSF)
4. LEASE TERM. This First Amendment to Lease will expire simultaneously
with the Lease.
27
5. LANDLORD'S CONTRIBUTION TO TENANT FIT-UP. Tenant accepts the Additional
Space in "as is" condition, and Tenant Fit-up shall be funded as follows: The
First $15,000 shall be funded by Tenant. The next $20,000 shall be funded by
Landlord. The next $15,000 shall be shared equally by both Landlord and Tenant.
Landlord shall not be responsible for funding any buildout in excess of the
above. X.X. Xxxxxxx will manage the fit-up and use best efforts to manage and
control the costs.
6. TENANTS TERMINATION RIGHT. Tenant's Right to Terminate shall be delayed
such that December 31, 1997 shall be the earliest date which Tenant may
terminate. The Termination Fee shall be $23,500 should Tenant terminate on
December 31, 1997, except that such fee shall be increased by the amount, if
any, by which Landlord's Contribution to Tenant Fit-up exceeds $20,000. The
Termination Fee shall be reduced on a monthly basis over the remainder of the
term should Tenant's Termination occur after December 31, 1997. Tenant's Right
to Terminate shall be in force until the occurrence of an Event of Default by
Tenant that has not been cured per Section 19 of the Lease.
7. Except as amended, all terms and conditions of said Lease are ratified
and reaffirmed in all respects.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date first above written.
WITNESS: LANDLORD:
/s/ Xxxx X. Xxxxx Nationwide Life Insurance Company
---------------------------------
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------
Xxxxxx X. XxXxxxxxx
Title: VICE PRESIDENT
Date: 12-28-94
WITNESS: TENANT:
GeoTel Communications Corporation
----------------------------------
By: Xxxx Xxxxxxxx
Title: PRESIDENT
Date: 12/20/94
28
Landlord's Acknowledgement
--------------------------
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 28 of December
1994, by Xxxxxx X. XxXxxxxxx, Vice President (title) of Nationwide Life
Insurance Company, an Ohio corporation, on behalf of the corporation.
(SEAL) /s/ Xxxxxxx X. Xxxxxxx
Notary Public
[LOGO] XXXXXXX X. XXXXXXX
Notary Public
My commission expires: 01-06-95
My commission expires:
Tenant's Acknowledgement
------------------------
STATE OF MASSACHUSETTS )
) SS:
COUNTY OF MIDDLESEX )
The foregoing instrument was acknowledged before me this 20th of December,
1994, by Xxxx X. Xxxxxxxx, PRESIDENT (title) of GEOTEL COMMUNICATIONS, CORP.
corporation, on behalf of the corporation.
(SEAL) /s/ Xxxxx X. Xxxx
Notary Public
My commission expires:
MY COMMISSION EXPIRES OCTOBER 3, 1993
29
EXHIBIT A
The Premises Including Additional Space
14,356 RSF
(Not to Scale. No representation is made as to the accuracy of interior
partitioning. Existing configuration may be altered by Tenant per Section 5 of
Amendment).
[GRAPHIC: FLOOR 2]
30
ESTOPPEL CERTIFICATE
MGI Properties
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
RE: Lease dated: November 29, 1993
Lease Amendments (if any) dated: First Amendment dated December 28, 1994
Landlord: Nationwide Life Insurance Company
Tenant: GeoTel Communications Corporation
Demised Premises: 14,356 sq. ft. on second floor of Building located at
00 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
Ladies and Gentlemen:
The undersigned ("Tenant") is the tenant under the Lease noted above (said
lease together with all amendments thereto noted above shall be the "Lease")
and, understanding that Landlord and MGI Properties or its designee (the
"Buyer") will rely on the representations and agreements below in connection
with the purchase of the premises of which the Demised Premises are a part,
hereby acknowledges, certifies and represents to Landlord and Buyer that:
1. A true and accurate copy of the Lease, including all amendments
thereto (if any) noted above, have been delivered to the Buyer. The Lease
represents the entire understanding between Landlord and Tenant with respect to
the leasing of the Demised Premises, and, except as modified by the Lease
Amendments noted above (if any), the Lease has not been modified, altered or
amended. The Lease has been duly authorized, executed and delivered by Tenant
and is in full force and effect.
2. Tenant has accepted possession of the Demised Premises and is in
occupancy under the Lease. The initial term of the Lease commenced on March 8,
1994 and expires on March 7, 1999. Tenant has no option to extend the term of
the Lease. Tenant has no right to acquire or purchase the Demised Premises or
any portion thereof or interest therein.
3. The obligation to pay base and additional rent under the Lease
commenced on March 8, 1994. All rent payable through July 31, 1995 has been paid
by Tenant. Rent has not been paid for any period beyond the now current monthly
rental, except as expressly provided in the Lease. There exists no default nor
state of facts which with the passage of time or the giving of notice or both
could ripen into a default on the part of Tenant, or to the best knowledge of
Tenant, could ripen into a default on the part of Landlord under the Lease.
There are no offsets, deductions or credits against the rents due and payable
under the Lease.
4. The improvements to the Demised Premises which are the Landlord's
responsibility under the Lease have been completed, and to the best of Tenant's
knowledge paid for, in accordance with the terms of the Lease. Tenant is not
entitled to receive payment
31
or credit for tenant improvement work or any other charges related to any
leasehold improvements.
5. Landlord is holding a security deposit in the amount of $3,000.
6. Tenant has not assigned, transferred, pledged or hypothecated the
Lease or any interest therein or subleased all or any portion of the Demised
Premises as of the date hereof.
7. Tenant is not insolvent and is able to pay its debts as they mature
and there is not pending or, to the best knowledge of Tenant, threatened against
or contemplated by the Tenant, any petition in bankruptcy, whether voluntary or
otherwise, any assignment for the benefit of creditors, or any petition seeking
reorganization or arrangement under the federal bankruptcy laws or those of any
state.
8. The term "Buyer" as used herein includes any successor or assign of
MGI Properties or its designee, and the term "Tenant" as used herein includes
any successor or assign of the named Tenant herein.
WITNESS the execution hereof under seal the ______ day of July, 1995.
TENANT:
GEOTEL COMMUNICATIONS
CORPORATION
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
-----------------------------
Title: OFFICE ADMINISTRATOR
----------------------------
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. July 24, 1995
--------- -------------
Then, personally appeared the above-named Xxxx Xxxx , Office Administrator
of GeoTel Communications Corporation, and acknowledged the foregoing to be the
free act and deed of said entity.
/s/ Xxxxx Xxxxxxx
-----------------------------
Notary Public
My commission expires: 2/10/2000
2
