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Exhibit 10.20
STANDARD LEASE
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
LANDLORD: TIAA Realty, Inc.
TENANT: Cyrk, Inc.
PREMISES: Suites 200, 180 and 115 comprised of (i) approximately 38,129 rentable
square feet of space located on the second (2nd) floor, (ii)
approximately 6,579 rentable square feet of space on the first (1st)
floor and (iii) 3,201 rentable square feet of space also located on
the first (1st) floor, all situated in the Building known as ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ and (the "Building") more particularly
described in Exhibit A to this Lease
DATED: As of July 29, 1999
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FIRST AMENDMENT TO LEASE
This First Amendment to Lease is dated as of this 27 day of December,
1999 by and between TIAA Realty, Inc. (the "Landlord") and Cyrk, Inc. (the
"Tenant").
WHEREAS, Landlord and Tenant are the Landlord and Tenant respectively
under and pursuant to that certain standard Lease Agreement dated as of July 29,
1999;
WHEREAS, as a result of certain delays of the Tenant in executing the
Lease and providing the Landlord with Tenant's Plans, the Landlord and Tenant
have agreed, subject to entering into this First Amendment, to amend the Lease
to call for a Commencement Date of March 1, 2000, notwithstanding that
Landlord's Work may not be performed or completed on or before March 1, 2000.
NOW, THEREFORE, the Landlord and the Tenant, each intending to be
legally bound, hereby agree as follows:
1. Commencement Date. Notwithstanding anything contained in the Lease
including, without limitation, Section 4.1 of the Lease to the contrary, the
Commencement Date under the Lease is hereby agreed to be March 1, 2000
notwithstanding whether or not the Landlord's Work, the Elevator Up-grade or the
Lobby Renovation Work may or may not be completed on or before March 1, 2000.
Tenant hereby agrees to commence payment of Basic Rent, Escalation Charges and
other sums and charges payable under the Lease on March 1, 2000 regardless of
whether or not Landlord's Work, the Elevator Up-grade or the Lobby Renovation
Work is completed or the Premises is then "ready for occupancy".
2. Preparation of the Premises. Article IV of the Lease is hereby
amended in the following respects:
(a) The first sentence of Section 4.1 is hereby deleted and the
following sentences are hereby inserted in its place and
stead:
"The Commencement Date shall be March 1, 2000 notwithstanding
that Landlord's Work will not be substantially completed on
such date. As used in this Lease, the term "Construction
Completion Date" shall mean August 1, 2000".
(b) The definition of the term "Tenant Plan Delivery Date" set
forth in Section 4.2 shall be amended to be "March 29, 2000".
(c) The definition of the term "Outside Plan Date" as set forth in
Section 4.2 shall be deemed amended to be "April 29, 2000".
(d) Section 4.2(e) of the Lease is hereby deleted and the
following new Section 4.2(e) shall be inserted in its place
and stead:
"(e) If the Substantial Completion Date has not
occurred by the Construction Completion Date (as it
may be extended pursuant to Section 4.4) then,
beginning on the day immediately following the
Construction
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Completion Date (as such date may be extended
pursuant to Section 4.4), Basic Rent and Escalation
Charges otherwise payable under this Lease shall
▇▇▇▇▇ day for day thereafter until the date that the
Premises is "ready for occupancy" to the extent
required by Section 4.2(b) above, on which date the
abatement of Basic Rent and Escalation Charges set
forth herein shall terminate; and such right of
abatement of Basic Rent and Escalation Charges shall
be Tenant's sole and exclusive remedy at law and in
equity for Landlord's failure so to complete
Landlord's Work within such time. In the event that
Tenant shall occupy all or any portion of the
Premises for the Permitted Use (as opposed to entry
of the Premises for the purpose of "Early Entry" as
defined in Section 4.1 above) during such period of
abatement, the abatement of Basic Rent and Escalation
Charges provided herein shall be appropriately
adjusted given the nature and extent of Tenant's use
of the Premises during such period."
3. Generally. Except as herein modified, all the terms, covenants,
provisions and agreements contained in the Lease remain in full force and effect
and are hereby ratified and affirmed. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Lease.
Witness our hands and seals on the day and year first above written.
LANDLORD:
TIAA Realty, Inc., a Delaware
corporation, as Landlord
By: Teachers Insurance and Annuity Association of
America, a New York corporation
Its: Authorized Representative
DATED: 12/27/99 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Its: Director
TENANT:
Cyrk, Inc.
DATED: 12/22/99 By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Its: President
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TABLE OF CONTENTS
ARTICLE CAPTION
I. BASIC LEASE PROVISIONS
1.1 Introduction
1.2 Basic Data
1.3 Additional Definitions
II. PREMISES AND APPURTENANT RIGHTS
2.1 Lease of Premises
2.2 Appurtenant Rights and Reservations
III. BASIC RENT
3.1 Payment
IV. COMMENCEMENT AND CONDITION
4.1 Commencement Date
4.2 Preparation of the Premises
4.3 Conclusiveness of Landlord's Performance
4.4 Tenant's Delays
V. USE OF PREMISES
5.1 Permitted Use
5.2 Installation and Alterations by Tenant
VI. ASSIGNMENT AND SUBLETTING
6.1 Prohibition
VII. RESPONSIBILITY FOR REPAIRS AND CONDITIONS
OF PREMISES; SERVICES TO BE FURNISHED BY LANDLORD
7.1 Landlord Repairs
7.2 Tenant's Agreement
7.3 Floor Load - Heavy Machinery
7.4 Building Services
7.5 Electricity
7.6 Interruption of Essential Services
VIII. REAL ESTATE TAXES
8.1 Payments on Account of Real
Estate Taxes
8.2 Abatement
8.3 Alternate Taxes
IX. OPERATING EXPENSES
9.1 Definitions
9.2 Tenant's Payments
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X. INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 Tenant's Indemnity
10.2 Public Liability Insurance
10.3 Tenant's Risk
10.4 Injury Caused by Third Parties
10.5 Landlord's Indemnity
XI. LANDLORD'S ACCESS TO PREMISES
11.1 Landlord's Rights
XII. FIRE, EMINENT DOMAIN, ETC.
12.1 Abatement of Rent
12.2 Right of Termination
12.3 Restoration; Tenant's Right of Termination
12.4 Award
12.5 Condemnation
XIII. DEFAULT
13.1 Tenant's Default
13.2 Landlord's Default
XIV. MISCELLANEOUS PROVISIONS
14.1 Extra Hazardous Use
14.2 Waiver
14.3 Covenant of Quiet Enjoyment
14.4 Landlord's Liability
14.5 Notice to Mortgagee or Ground Lessor
14.6 Assignment of Rents and Transfer of Title
14.7 Rules and Regulations
14.8 Additional Charges
14.9 Invalidity of Particular Provisions
14.10 Provisions Binding, Etc.
14.11 Recording
14.12 Notices
14.13 When Lease Becomes Binding
14.14 Paragraph Headings
14.15 Rights of Mortgagee or Ground Lessor
14.16 Status Report
14.17 Security Deposit/Letter of Credit
14.18 Remedying Defaults
14.19 Holding Over
14.20 Waiver of Subrogation
14.21 Surrender of Premises
14.22 Intentionally Omitted
14.23 Brokerage
14.24 Special Taxation Provisions
14.25 Hazardous Materials
14.26 Governing Law
14.27 Options to Extend
14.28 Right of First Offer
14.29 Satellite Business Terminal System
14.30 Elevator Upgrade
14.31 Lobby Upgrade
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L E A S E
Preamble
THIS INSTRUMENT IS A LEASE, dated as of July __, 1999 in which the Landlord and
the Tenant are the parties hereinafter named, and which relates to space located
in that certain building known and numbered as ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ (the "Building"). The parties to this instrument hereby agree with
each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. The following terms and provisions set forth basic data
and, where appropriate, constitute definitions of the terms hereinafter
listed:
1.2 BASIC DATA.
LANDLORD: TIAA Realty, Inc.
LANDLORD'S ORIGINAL ADDRESS:
c/o Leggat ▇▇▇▇▇▇ Properties, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Property Manager: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇
TENANT: Cyrk, Inc.
TENANT'S ORIGINAL ADDRESS: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
GUARANTOR: N/A
BASIC RENT:
LEASE YEAR BASIC RENT MONTHLY PAYMENT
---------- ---------- ---------------
1 $946,202.75 $78,850.23
2 $958,180.00 $79,848.33
3 $970,157.25 $80,846.44
4 $982,134.50 $81,844.54
5 $994,111.75 $82,842,65
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BASE TAXES: Taxes for the calendar Year January 1, 2000 through and
including December 31, 2000, as the same may be abated.
BASE OPERATING EXPENSES: Operating Expenses for the calendar year
ending December 31, 2000, adjusted in accordance with Section 14.27
with respect to each Extension Period.
BASE UTILITY EXPENSES: Utility Expenses for the calendar year ending
December 31, 2000, adjusted in accordance with Section 14.27 with
respect to each Extension Period.
PREMISES RENTABLE AREA: Agreed to be approximately 47,909 rentable
square feet.
PERMITTED USES: General Office and as ancillary thereto, to the extent
permitted by applicable laws, storage of non-flammable, non-hazardous
materials in furtherance of the business of the Original Tenant named
in this Lease.
ESCALATION FACTOR: 64.45%, as computed in accordance with the
Escalation Factor Computation.
INITIAL TERM: Five (5) years commencing on the Commencement Date and
expiring at the close of the day immediately preceding the fifth (5th)
anniversary of the Commencement Date, except that if the Commencement
Date shall be other than the first day of a calendar month, the
expiration of the Initial Term shall be at the close of the day on the
last day of the calendar month on which such anniversary date shall
fall.
SECURITY DEPOSIT: Initially, $242,539.32 in the form of a Letter of
Credit subject to and in accordance with the provisions of Section
14.17 of this Lease.
1.3 ADDITIONAL DEFINITIONS.
MANAGER: Leggat ▇▇▇▇▇▇ Properties, LLC or such other managing
representative designated by Landlord as the Manager from time to time.
BUILDING RENTABLE AREA: Agreed to be approximately 74,332 rentable
square feet.
BUSINESS DAYS: All days except Saturday, Sunday, New Year's Day,
Washington's Birthday, Patriot's Day, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day
(and the following day when any such day occurs on Sunday).
COMMENCEMENT DATE: As defined in Section 4.1.
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DEFAULT OF TENANT: As defined in Section 13.1.
ESCALATION CHARGES: The amounts prescribed in Sections 8.1 and 9.2.
ESCALATION FACTOR COMPUTATION: Premises Rentable Area divided by the
Building Rentable Area.
FORCE MAJEURE: Collectively and individually, strike or other labor
trouble, fire or other casualty, governmental preemption of priorities
or other controls in connection with a national or other public
emergency or shortages of, or inability to obtain, fuel, supplies or
labor resulting therefrom, or any other cause, whether similar or
dissimilar, beyond Landlord's reasonable control.
INITIAL PUBLIC LIABILITY INSURANCE: $1,000,000 (per occurrence) primary
liability and $5,000,000 (per occurrence) excess liability (combined
single limit) for bodily injury, death and property damage, such
policies to be written with companies approved by Landlord and having a
Best's Insurance Rating of A- or better with a Financial Rating of X.
LAND PARCEL: The parcel of land upon which the Building is located, as
more particularly described in Exhibit A-1.
LEASE YEAR OR LEASE YEAR: Each consecutive 12 calendar month period
immediately following the Commencement Date, but if the Commencement
Date shall fall on other than the first day of a calendar month, then
such term shall mean each consecutive twelve calendar month period
commencing with the first day of the first full calendar month
following the calendar month in which the Commencement Date occurs,
however, the first lease year shall include any partial month between
the Commencement Date and the first day of the first full calendar
month immediately following the Commencement Date.
OFFICE PARK: The land with the buildings and improvements thereon
situated in Wakefield, Massachusetts and known as Edgewater Office
Park.
OPERATING EXPENSES: As set forth in Section 9. 1.
OPERATING YEAR: As defined in Section 9.1.
PREMISES: The portions of the first and second floors of the Building
comprised of the aggregate of approximately 47,909 rentable square feet
and shown on Exhibit A annexed hereto.
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PROPERTY: The Building and the Land Parcel on which it is located
(including parking areas, loading areas, driveways, landscaped areas
and adjacent sidewalks).
TAX YEAR: As defined in Section 8.1.
TAXES: As determined in accordance with Section 8. 1.
TENANTS REMOVABLE PROPERTY: As defined in Section 5.2.
TERM OF THIS LEASE: The Initial Term and any extension thereof in
accordance with the provisions hereof.
UTILITY EXPENSES: As defined in Section 9.1.
EXHIBITS: The following Exhibits are annexed to this Lease and
incorporated herein by this reference:
Exhibit A - Plan showing Premises
Exhibit A-1 Land Parcel
Exhibit B - Tenant Plan Requirements
Exhibit C - Rules and Regulations
Exhibit D - List of Approved General Contractors
Exhibit E - Operating Expenses
Exhibit F - Cleaning Services
ARTICLE II
PREMISES AND APPURTENANT RIGHTS.
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for the
Term of this Lease and upon the terms and conditions hereinafter set
forth, and Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
appurtenant to the Premises, the non-exclusive right to use, and permit
its invitees to use in common with others and subject to the rights of
others from time to time entitled thereto, (i) public or common
lobbies, hallways, elevators, (ii) common walkways necessary for access
to the Building, (iii) parking spaces and roadways located in the
parking areas located on the Land Parcel and the parcel of land known
as Lot 54 as shown on that certain Plan entitled "Subdivision Plan of
Land in Wakefield, Mass" (Scale 1" = 200") dated March 11, 1985
(revised March 28, 1985) prepared by ▇▇▇▇▇ Engineering, Inc. and filed
with the Middlesex (South) Registry District of the Land Court as Plan
No. 27190W with Certificate of Title No. 172727 (the "Adjacent Parcel")
such plan being described in that certain Grant of Easements filed in
the Middlesex (South) Registry District
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of the Land Court as Document Number 725575 as the "Subdivision Plan",
and if the portion of the Premises on any floor includes less than the
entire floor, the common toilets, corridors and elevator lobby of such
floor; but Tenant shall have no other appurtenant rights and all such
rights shall always be subject to reasonable and uniformly applied
rules and regulations from time to time established by Landlord
pursuant to Section 14.7 and to the right of Landlord to designate and
change from time to time areas and facilities so to be used; provided
that such designations or changes do not materially and adversely
interfere with Tenant's access to the Property and the Premises or
Tenant's right to use or enjoy the Premises. As long as the Land Parcel
and the Adjacent Parcel are owned and controlled by Landlord, or a
subsidiary of Landlord or any entity that is owned or controlled by
Landlord or controls Landlord and, subject to actions of public or
governmental authority Landlord represents and warrants to Tenant that
there is and will be during the Term of this Lease an aggregate of at
least 579 parking spaces located on the Land Parcel and the Adjacent
Parcel.
(b) Excepted and excluded from the Premises are the ceiling, floor,
perimeter walls and exterior windows, except the inner surfaces
thereof, but the entry doors (and related glass and finish work) to the
Premises are a part thereof; and Tenant agrees that Landlord shall have
the right to place in the Premises (but in such manner as to reduce to
a minimum interference with Tenant's use of the Premises) interior
storm windows, subcontrol devices (by way of illustration, an electric
sub panel, etc.), utility lines, pipes, equipment and the like, in,
over and upon the Premises provided that the same do not materially and
adversely interfere with the operation of Tenant's business. Tenant
shall install and maintain, as Landlord may require, proper access
panels in any hung ceilings or walls as may be installed by Tenant in
the Premises to afford access to any facilities above the ceiling or
within or behind the walls.
(c) Subject to all other applicable provisions of this Lease, Tenant
shall have as appurtenant to the Premises, the right of access to the
Building roof to the extent necessary for purposes of (i) performing
its obligations and exercising its rights pursuant to Section 14.29 or
(ii) the repair, installation and maintenance of HVAC equipment in
accordance with Tenant's rights and obligations under this Lease.
Tenant shall be responsible for any damage to the roof of the Building
and shall advise Landlord in advance of any entry upon the roof.
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ARTICLE III
BASIC RENT
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
Landlord, commencing on the Commencement Date without offset,
abatement, deduction or demand, the Basic Rent plus Landlord's
estimated amounts for Escalation Charges. Such Basic Rent plus
Landlord's estimated amounts for Escalation Charges shall be payable in
equal monthly installments, in advance, on the first day of each and
every calendar month during the Term of this Lease, at Landlord's
Original Address, or at such other place as Landlord shall from time to
time designate by notice to Tenant, in lawful money of the United
States. In the event that any installment of Basic Rent or Escalation
Charges is not paid within five (5) days after the due date thereof on
any two (2) occasions during any twelve (12) calendar month period then
beginning with the third (3rd) such occasion during such 12 calendar
month period and thereafter at any time that any installation of Basic
Rent or Escalation Charges is not paid when due, Tenant shall pay, in
addition to any other additional charges due under this Lease, an
administrative fee equal to 5% of the overdue payment.
(b) Basic Rent and Escalation Charges for any partial month shall be
pro-rated on a daily basis, and if the first day on which Tenant must
pay Basic Rent and Escalation Charges shall be other than the first day
of a calendar month, the first payment which Tenant shall make to
Landlord shall be equal to a proportionate part of the monthly
installment of Basic Rent for the partial month from the first day on
which Tenant must pay Basic Rent and Escalation Charges to the last day
of the month in which such day occurs, plus the installment of Basic
Rent and Escalation Charges for the succeeding calendar month.
ARTICLE IV
COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. The Commencement Date shall be the last to occur of
(i) March 1, 2000 (the "Construction Completion Date") or (ii) the day
following the Substantial Completion Date (as defined in Section
4.2(b). Notwithstanding the foregoing, if Tenant's personnel shall
occupy all or any part of the Premises for the conduct of its business
(as opposed to mere installation of telecommunications, equipment or
furnishings as and to the extent permitted hereunder) prior to the
Commencement Date, such date shall
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for all purposes of this Lease be the Commencement Date.
Notwithstanding the foregoing to the contrary, entry by Tenant for
purposes of Early Entry pursuant to the next grammatical paragraph of
this Section 4.1 shall not, in and of itself, result in the occurrence
of the Commencement Date. It is agreed and understood that the
Commencement Date shall occur upon the date determined in accordance
with the foregoing provisions of this Section 4.1 notwithstanding that
the "Elevator Up-grade" and the Lobby Renovation Work (as those terms
are defined in Section 14.30 and 14.31 hereof respectively) may or may
not be completed on or before the Commencement Date with respect to the
Premises. Tenant shall execute a certificate written certificate
confirming the Commencement Date as it is determined in accordance with
the provisions of this Section 4.1 within ten (10) days of written
demand by Landlord.
At such time and to the extent that Landlord shall reasonably determine
that Landlord's Work (as said term is hereafter defined) has progressed
to the point that entry by Tenant or Tenant's contractors will not
materially interfere with the performance and completion of Landlord's
Work, Landlord shall permit Tenant, Tenant's employees and Tenant's
contractors and vendors to enter the Premises prior to the Commencement
Date ("Early Entry") in order to (a) perform installations of
telecommunications, voice and data systems, furniture and other
equipment and (b) test and commence to operate computer and
telecommunications equipment and systems in the computer room in order
to facilitate smooth transition of Tenant's business between the
Premises and Tenant's current premises in Gloucester, MA. Such Early
Entry shall be upon and subject to all of the terms, covenants and
provisions of this Lease notwithstanding that the Commencement Date
shall not then have occurred.
4.2 PREPARATION OF THE PREMISES. (a) It is agreed and understood that
Tenant shall be responsible for developing detailed plans,
specifications and construction documents reflecting the improvements
desired by Tenant in the Premises and necessary and sufficient to
obtain a Building Permit from the Town of Wakefield and to enable
Landlord to complete Landlord's Work containing, without limitation,
the plans, construction documents, details and information specified in
Exhibit B ("Tenant's Plans"). Tenant shall engage Elkus Manfredfi
Architects Ltd. as the architect for purposes of preparing Tenant's
Plans (the "Architect"). As proposed Tenant's Plans are being
developed, Tenant shall consult with Landlord's construction manager in
order to permit Landlord's construction manager to provide assistance
and guidance in connection with the development of Tenant's Plans. In
any and all events, Tenant shall cause final and complete Tenant's
Plans to be delivered to Landlord on or before November 29, 1999 (the
"Tenant Plan Delivery Date").
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Upon receipt of a complete set of Tenant's Plans from Tenant, Landlord
shall have a period of seven (7) Business Days to review Tenant's
Plans. Such review and approval shall take place in the time and manner
hereinafter specified. Landlord shall not unreasonably withhold its
approval of Tenant's Plans.
If Landlord shall approve Tenant's Plans, Landlord shall thereafter
commence the Bid Process (as hereafter defined). In the event Landlord
shall not approve of Tenant's Plans (or any aspect thereof), Landlord
shall provide Tenant with written notice (written notice by facsimile
or overnight courier shall be sufficient) of the specific aspects of
Tenant's Plans of which, as so submitted, Landlord does not approve (a
"Rejection Notice") within seven (7) Business Days after Landlord's
receipt of such complete Tenant's Plans.
Upon receipt of a Rejection Notice, Tenant shall thereafter revise
Tenant's Plans in the manner required by the Rejection Notice and shall
deliver revised Tenant's Plans to Landlord on or before the date which
is seven (7) Business Days after Tenant's receipt of such Rejection
Notice. Landlord shall again have five (5) Business Days after receipt
of such revised Tenant's Plans within which to review and approve (or
reject) Tenant's Plans. In any and all events, Landlord and Tenant
shall agree on Final Tenant's Plans on or before December 29, 1999 (the
"Outside Plan Date"). Landlord shall not be required to approve any
alteration, improvement, work or materials called for in Tenant's Plans
which (i) is not approved by Landlord's architect or (ii) does not
comply with any of the Requirements as defined in Article VII
including, without limitation, any and all applicable laws, ordinances
or building codes or (iii) does not meet Landlord's minimum standards
for the Building as determined by Landlord in Landlord's sole but
reasonable judgment or (iv) do not call for work or improvements
sufficient to bring the Premises into compliance with all applicable
Requirements (as defined in Section 7.2) or (v) pertain to the Lobby
Area which is to be renovated pursuant to Section 14.31 hereof. Tenant
shall be responsible for the content of Tenant's Plans and shall insure
that the same call for work and improvements which are designed in
compliance with and which, when performed, shall bring the Premises
into compliance with all applicable Requirements. Landlord's approval
of Tenant's Plans shall not be deemed or construed as a representation
or warranty by Landlord or Landlord's construction manager that the
work and improvements called for therein are in compliance with the
Requirements.
Upon approval of Tenant's Plans by Landlord, Landlord shall promptly
apply for all licenses, permits and approvals necessary to perform
Landlord's Work and Landlord shall also
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forward the approved Tenant's Plans to the general contractors set
forth in Exhibit D (such bidding process being the "Bid Process").
Subject to the rights of Landlord under this Lease with respect to the
selection and designation of the general contractor, Landlord shall
consult with Tenant in connection with completing the Bid Process and
shall share information relative the bids submitted by the various
contractors with Tenant.
After completion of the Bid Process, Landlord will arrange for a
meeting between the Architect, Landlord's Construction Manager, Tenant
and the lowest qualified responsible bidder, wherein the contractors
bid and the scope of work called for therein shall be reviewed. Such
meeting shall take place within two (2) Business Days after completion
of the Bid Process.
After such meeting, Landlord shall select the lowest qualified
responsible bid submitted by one of the contractors and shall designate
and enter into a construction contract with such bidder as the general
contractor for purposes of performing Landlord's Work. Landlord shall
provide Tenant with a copy of the construction contract as executed.
Upon completion of the Bid Process and Landlord's designation of and
entry into the construction contract with the general contractor as
aforesaid, Landlord shall exercise all reasonable efforts to promptly
complete the work necessary to prepare the Premises for Tenant's
occupancy pursuant to the Tenant's Plans ("Landlord's Work"), but
Tenant shall have no claims against Landlord for failure to timely
complete such Landlord's Work except the right to terminate this Lease
in accordance with the provisions of Section 4.2(e). It is agreed and
understood that notwithstanding anything contained in the Tenant's
Plans to the contrary, Landlord's Work shall not include any aspect of
the Elevator Up-Grade or the Lobby Renovation Work contemplated in
Section 14.30 and Section 14.31 respectively, unless expressly agreed
to by Landlord in writing.
Landlord shall cause Landlord's Construction Manager to oversee the
performance of Landlord's Work and shall use good faith efforts to
ensure that such work is performed in a good and workmanlike manner in
compliance with Tenant's Plans as approved by Landlord and Tenant.
Landlord's construction manager shall:
1. review all of Tenant's architectural plans and shall provide
feedback to Tenant on the Landlord's behalf;
2. coordinate the Bid Process;
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3. review all bids in conjunction with Tenant and Tenant's
architect;
4. organize and coordinate a weekly construction meeting;
5. insure that all change orders are appropriately approved;
6. oversee the punch-list process;
7. pay all approved and appropriate general contractor invoices
(provided that Tenant has timely paid Tenant's Share to the
extent that all or any portion of Tenant's Share is then due
and payable);
8. coordinate with Tenant's specialty vendors such as furniture,
data and telecommunications contractors.
Tenant hereby acknowledges that Landlord's construction manager is
Landlord's representative and is charged with representation of the
Landlord.
Landlord has agreed to provide Tenant with an allowance and shall pay
up to $20.00 per square foot contained in the Premises Rentable Area
(the "Allowance") toward the Total Cost of Landlord's Work (as
hereafter defined).
To the extent that the Total Cost of Landlord's Work exceeds the
Allowance (such excess of the Total Cost of Landlord's Work over the
Allowance being "Tenant's Share"), Tenant shall pay the Landlord the
Tenant's Share as an additional charge under this Lease as hereafter
set forth in Section 4.2(d). Tenant shall, if requested by Landlord,
execute a work letter confirming such excess costs and Tenant's Share
prior to the time Landlord shall be required to commence Landlord's
Work. To the extent shown on and required by Tenant's Plans, Landlord
shall perform Landlord's Work in compliance with the Requirements.
Landlord shall require that all payments of the Allowance and the funds
representing Tenant's Share shall be paid to the general contractor
only upon submission of Standard AIA Requisition Forms (a
"Requisition") and approval thereof by the Architect as Landlord's Work
progresses (copies of such Requisition Forms shall promptly be provided
to Tenant's Construction Representatives, as hereafter defined, and the
Architect). The approval of the Architect shall not be unreasonably
withheld or delayed. All such payments shall be subject to a retainage
which shall not be released until such time as Landlord's Work is
substantially complete and all punch-list work is completed as mutually
consented to by Landlord, Tenant and the Architect, which consent the
parties hereby agree shall not be unreasonably withheld or delayed.
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(b) The Premises shall be deemed "ready for occupancy" on the first
Business Day (the "Substantial Completion Date") after (a) Landlord's
Work has been completed except for items of work (and, if applicable,
adjustment of equipment and fixtures) which can be completed after
occupancy has been taken without causing undue interference with
Tenant's use of the Premises (i.e., so called "punch list" items), and
Tenant shall afford Landlord access to the Premises for such purposes
and (b) Landlord has obtained a certificate of occupancy permitting
Tenant to occupy the Premises (such certificate may be a temporary
certificate provided that Landlord has substantially completed
Landlord's Work and a permanent certificate is not issued due to work,
alterations, improvements or installations which are being performed by
Tenant's contractors or vendors).
(c) As used herein, the term "Total Cost of Landlord's Work" shall mean the
aggregate cost of (1) obtaining all licenses, permits and governmental
approvals and performing and/or providing all work, labor, materials,
supplies, demolition work, alterations and improvements including,
without limitation, general conditions, overhead, profit and other
costs and fees payable to the designated general contractor in
connection with performing and completing Landlord's Work and (2)
Tenant's architectural and engineering fees sustained in connection
with the development review and revision of Tenant's plans. The Total
Cost of Landlord's Work shall not include (i) any construction
management fees or expenses payable to the Landlord's construction
manager, (ii) the cost of bringing the electrical capacity/service to
the Premises up to ten ▇▇▇▇▇ per square foot excluding HVAC service and
(iii) the cost of upgrading the HVAC service to the Premises to provide
one (1) ton of HVAC service/capacity (including diffusers duct work and
controls) as necessary for each 350 square feet of Premises Rentable
Area as of the Commencement Date. It is agreed and understood that
Landlord shall bear the cost of performing the work described in
Sections 4.2(c)(i), 4.2(c)(ii) and 4.2(c)(iii) all at Landlord's sole
cost and expense.
(d) Tenant's Share shall be payable as an additional charge under this
Lease within two (2) Business Days after receipt of written demand (a
"Tenant's Share Request") from Landlord to Tenant's Construction
Representatives which shall be accompanied by the Requisition then
pertaining to the payment of Tenant's Share signed by the Architect. As
used herein, the term "Tenant's Construction Representatives" shall
mean ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Mr. ▇▇▇▇ ▇▇▇▇▇▇▇ each having an address
at ▇/▇ ▇▇▇▇, ▇▇▇., ▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Payments of
Tenant's Share shall be paid by wire transfer to the following account:
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Account Name: Leggat ▇▇▇▇▇▇ Properties, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Account
Bank Name: Fleet Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA#: 011 000 138
Account #: 9411958556
In addition to and without limitation of any other right or remedy of
Landlord with respect to Tenant's failure to timely pay Tenant's Share
as and when due under this Lease, in the event that all or any portion
of Tenant's Share is not paid in full within two (2) Business Days
after receipt of a Tenant's Share Request (which may be given via fax
transmission or overnight courier), Tenant shall pay Landlord as an
additional charge under this Lease an administrative fee equal to 10%
of the overdue payment.
In any and all events, Tenant shall pay Tenant's Share to Landlord
prior to Tenant taking occupancy of the Premises. Landlord shall be
entitled to retain 50% of any portion of the Allowance not needed to
complete Landlord's Work in the Premises. Although Tenant's Share is
payable to Landlord as and when provided in this section 4.2(d),
Landlord shall not disburse funds representing Tenant's Share to the
general contractor unless and until Landlord has fully advanced the
Allowance (inclusive of the required retainage, which Landlord shall
continue to hold as aforesaid). In addition to and without limitation
of any other right or remedy of Landlord provided in this Lease,
Landlord shall have the same rights and remedies against Tenant for
Tenant's failure to timely pay Tenant's Share as and when due as
Landlord has against Tenant for failure to pay Basic Rent when due.
(e) If the Substantial Completion Date has not occurred by the
Construction Completion Date (as it may be extended pursuant to Section
4.4), Tenant shall have the right to terminate this Lease by giving
notice to Landlord, not later than thirty (30) days after the
Construction Completion Date (as so extended), of Tenant's desire so to
do; and this Lease shall cease and come to an end without further
liability or obligation on the part of either party one hundred twenty
(120) days after the giving of such notice, unless, within such 120-day
period, Landlord substantially completes Landlord's Work to the extent
required by Section 4.2(b) above, which substantial completion shall
void Tenant's election to terminate; and such right of termination
shall be Tenant's sole and exclusive remedy at law or in equity for
Landlord's failure so to complete such Work within such time.
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4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Prior to commencing occupancy
of the Premises, Tenant and Tenant's architect shall coordinate with
Landlord's construction manager to create a punch-list of outstanding
aspects of Landlord's Work. Unless Tenant shall have given Landlord
written notice by the end of the sixth (6th) full calendar month after
the Commencement Date of specific respects in which Landlord has not
performed Landlord's Work in compliance with the Tenant's Plans, Tenant
shall have no claim that Landlord has failed to perform any of
Landlord's Work except for (a) defects in workmanship and materials
which were not reasonably susceptible of discovery at the time of
creation of the punchlist or within the six (6) calendar month period
described above and of which Tenant shall give Landlord written notice
within such six (6) month period and (b) defects in HVAC equipment
installed by Landlord or originally installed in the Premises by
Landlord and serving the Premises and of which Tenant shall have given
Landlord written notice within one (1) year after the Commencement
Date. Except for Landlord's Work and as otherwise expressly provided in
this Lease, the Premises are being leased in their condition, "as is"
without warranty or representation by Landlord. Tenant acknowledges
that it has inspected the Premises, the common areas of the Building
and the Property and, except for Landlord's Work, the Elevator Up-grade
(as defined in Section 14.30) and the Lobby Renovation Work (as defined
in Section 14.31), has found the same to be satisfactory.
Nothing contained herein shall be deemed or construed to affect or
limit any rights or claims Tenant may have, if any, against Landlord's
general contractor. To the extent assignable, Landlord shall assign
(without recourse to Landlord), its warranties given to Landlord in
connection with Landlord's Work to Tenant. Upon such assignment
Landlord shall be entirely freed and released from any responsibility
or liability with respect to any matter covered by such warranties as
so assigned to Tenant.
Further, nothing contained in this Section 4.3 shall be deemed or
construed to limit Landlord's repair and maintenance obligations
pursuant to Section 7.1 of this Lease.
Upon the written request of Tenant, within one (1) year after
completion of Landlord's Work and provided that Tenant has paid
Tenant's Share in full to Landlord, Tenant shall have the right to
review and audit Landlord's records pertaining to the Total Cost of
Landlord's Work, the funding and payment of the Allowance and Tenant's
Share and all payments made to the General Contractor by Landlord in
connection with Landlord's Work. Landlord represents and warrants that
neither Landlord, Landlord's construction manager nor any of their
respective agents, servants or
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employees shall accept or receive any consideration or "kick-backs"
from the general contractor or subcontractors that are hired to perform
Landlord's Work or any other entity engaged in designing or building
out the Premises.
4.4 TENANT'S DELAYS. (a) If the Substantial Completion Date shall be
delayed as the result of:
(i) any request by Tenant that Landlord delay in the
commencement or completion of Landlord's Work for any reason; or
(ii) failure of Tenant to deliver complete Tenant's Plans to
Landlord on or before the Tenant Plan Delivery Date or failure by
Tenant to timely deliver revised Tenant's Plans to Landlord as and when
required by this Article IV or any change in Tenant's Plans requested
by Tenant and approved by Landlord; or
(iii) failure of Landlord and Tenant to agree on the form of
Tenant's Plans on or before the Outside Plan Date or any failure of
Tenant to pay all or any portion of the Tenant's Share as and when due
and payable under this Article IV; or
(iv) any reasonably necessary displacement of any of
Landlord's Work from its place in Landlord's construction schedule
resulting from any of the causes for delay referred to in clauses (i),
(ii) or (iii) of this paragraph and the fitting of such Work back into
the schedule;
then, in any such event, Tenant shall, from time to time and within ten
(10) days after demand therefor, pay to Landlord for each day the
Substantial Completion Date is delayed by reason of the delays referred
to in clauses (i), (ii), (iii) and (iv) above, an amount equal to one
day of Basic Rent (pro-rated on a daily basis) for each such day of
delay. Provided, however, that the daily payment of Basic Rent called
for by the immediately preceding sentence shall not apply with respect
to the first ten (10) days of Tenant's Delay.
(b) Intentionally Omitted.
(c) The delays referred to in paragraph (a) are herein referred to
collectively and individually as "Tenant's Delay". It is agreed and
understood that the Tenant's Plans shall not include alterations or
improvements to the common areas of the Building pursuant to Sections
14.30 and 14.31 and accordingly, failure to agree upon plans and
specifications with respect to the matters contemplated in Section
14.30 and Section 14.31 shall not constitute a Tenant's Delay.
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(d) If, as a result of Tenant's Delay, the Substantial Completion Date
is delayed in the aggregate for more than sixty (60) days, Landlord may
(but shall not be required to), by written notice to Tenant within ten
(10) days after expiration of such sixty (60) day period, terminate
this Lease by giving written notice of such termination to Tenant and
thereupon this Lease shall terminate without further liability or
obligation on the part of either party, except that Tenant shall pay to
Landlord the cost theretofore incurred by Landlord in performing
Landlord's Work, plus an amount equal to Landlord's out-of-pocket
expenses incurred in connection with this Lease, including, without
limitation, brokerage and legal fees, together with any amount required
to be paid pursuant to paragraph (a) through the effective termination
date.
(e) The Construction Completion Date shall automatically be extended
for the period of any delays caused by Tenant's Delay or Force Majeure.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
occupied by Tenant only for Permitted Uses.
(b) Tenant agrees to conform to the following provisions during the
Term of this Lease:
(i) Tenant shall cause all freight to be delivered to or
removed from the Building and the Premises in accordance with
reasonable rules and regulations established and uniformly applied by
Landlord therefor;
(ii) Except as otherwise expressly permitted by this Lease,
Tenant will not place on the exterior of the Premises (including both
interior and exterior surfaces of doors and interior surfaces of
windows) or on any part of the Building outside the Premises, any
signs, symbol, advertisements or the like visible to public view
outside of the Premises with the exception of identity signage in
Tenant's entrance area which may be visible in the main lobby of the
Building. Landlord will not unreasonably withhold consent for such
interior signs or signs or lettering on the entry doors to the Premises
provided such signs conform to building standards adopted by Landlord
and Tenant has first submitted a sketch of the sign to Landlord for its
approval.
Landlord shall install, at Landlord's sole cost and expense, Tenant's
name on signage on the main Building
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directory as well as on Edgewater Office Park's existing directory sign
at the entrance to Edgewater Office Park.
In addition, provided that and so long as Tenant is occupying the
entire Premises, Tenant shall have the right, at Tenant's sole cost and
expense, to place Tenant's logo on the tombstone sign at the entrance
to the Building. The size and location of Tenant's logo on such
tombstone sign shall be subject to Landlord's approval, which approval
will not be unreasonably withheld or delayed.
Any and all signs installed by or on behalf of Tenant shall be removed
by Tenant upon expiration or earlier termination of the Term of the
Lease (repairing any damage to the Property or any portion thereof
caused by such installation). Tenant shall also maintain and repair any
such signage in good condition at all times during the Term of this
Lease.
(iii) Tenant shall not perform any act or carry on any
practice which may injure the Premises, or any other part of the
Building, or cause offensive odors or loud noise or constitute a
nuisance or menace to any other tenant or tenants or other persons in
the Building;
(iv) Tenant shall, at its sole cost and expense: (x) in its
use of the Premises, the Building or the Land under the Lease, comply
with the requirements of all applicable governmental laws, rules and
regulations including, without limitation, the Americans with
Disabilities Act of 1990, as amended (the "ADA") and (y) pay for and
perform any work necessary to bring the Premises into compliance with
the ADA which work is required due to the Tenant's use of the Premises.
Nothing contained in this clause (iv) shall be deemed or construed to
require Tenant to perform alterations to the elevator in order to bring
the same into compliance with the ADA; and
(v) Tenant shall occupy the Premises for the Permitted Uses
and for no other purposes.
5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions (including, for the purposes hereof,
wall-to-wall carpeting), or improvements in or to the Premises in
excess of $10,000.00 without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed with respect to
non-mechanical, non-structural or non-electrical changes, alterations
or improvements. Any such alterations, additions or improvements shall
(i) be in accordance with complete plans and specifications prepared by
Tenant and consented to in advance by Landlord, which consent shall
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not be unreasonably withheld or delayed with respect to non-mechanical,
non-structural or non-electrical changes, alterations or improvements;
(ii) be performed in a good and workmanlike manner and in compliance
with all applicable laws; (iii) be performed and completed in the
manner required in Section 5.2(d) hereof; (iv) be made at Tenant's sole
expense and at such times as Landlord may from time to time designate;
and (v) become a part of the Premises and the property of Landlord. It
is agreed and understood that Landlord shall have the right to review
and approve all changes to any plans which Landlord shall have approved
pursuant to this Section 5.2(a), which approval shall not be
unreasonably withheld or delayed. Landlord may condition its consent to
any alteration, modification or improvement made by or at the request
of Tenant after the Commencement Date upon a requirement that Tenant,
at its sole cost and expense, remove same upon expiration or earlier
termination of the Term of this Lease returning the Premises to its
condition prior to the making or installation thereof (including the
repair of any damage resulting from the installation or removal
thereof).
It is also agreed and understood that Landlord shall not be deemed to
be unreasonable in denying its consent to alterations, additions and
improvements to the Premises which affect "Base Building Systems" (as
said term is hereafter defined).
As used herein, the term "Base Building Systems" shall mean (i) any
mechanical, electrical or plumbing system or component of the Building
(including the Premises) (ii) the exterior of the Building (iii) the
Building HVAC distribution system (iii) any fire safety
prevention/suppression system and (iv) any structural element or
component of the Building.
(b) All articles of personal property and all business fixtures,
machinery and equipment and furniture owned or installed by Tenant
solely at its expense in the Premises ("Tenant's Removable Property")
shall remain the property of Tenant and may be removed by Tenant at any
time prior to the expiration of this Lease, provided that Tenant, at
its expense, shall repair any damage to the Building caused by such
removal.
(c) Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit,
and that no mechanic's or other lien for any such labor or materials
shall attach to or affect the reversion or other estate or interest of
Landlord in and to the Premises. Whenever and as often as any
mechanic's lien shall have been filed against the Premises based upon
any act or interest of Tenant or of
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anyone claiming through Tenant, Tenant shall forthwith take such
actions by bonding, deposit or payment as will remove or satisfy the
lien.
(d) All of the Tenant's alterations, additions and installation of
furnishings shall be coordinated with any work being performed by
Landlord and in such manner as to maintain harmonious labor relations
and not damage the Property or interfere with Building construction or
operation and, except for installation of furnishings, shall be
performed by contractors or workmen first approved by Landlord. Except
for work by Landlord's general contractor, Tenant before its work is
started shall: secure all licenses and permits necessary therefor and
deliver copies thereof to Landlord; deliver to Landlord a statement of
the names of all its contractors and subcontractors and the estimated
cost of all labor and material to be furnished by them; and cause each
contractor to carry workmen's compensation insurance in statutory
amounts covering all the contractor's and subcontractor's employees and
comprehensive public liability insurance and property damage insurance
with such limits as Landlord may reasonably require but in no event
less than the Initial Public Liability Insurance specified in Section
1.3 of this Lease as the same may be increased from time to time in
accordance with the provisions of Article X of this Lease (all such
insurance to be written in companies approved by Landlord and insuring
Landlord, Manager and Tenant as well as the contractors), and to
deliver to Landlord certificates of all such insurance. Tenant agrees
to pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees, or independent contractors,
and not to cause or permit any liens for labor or materials performed
or furnished in connection therewith to attach to the Premises or the
Property and immediately to discharge or bond off in an amount
sufficient to cover the lien with respect to any such liens which may
so attach and, at the request of Landlord to deliver to Landlord
security satisfactory to Landlord against liens arising out of the
furnishing of such labor and material. Upon completion of any work done
on the Premises by Tenant, its agents, employees, or independent
contractors, Tenant shall promptly deliver to Landlord (i) original
lien releases and waivers executed by each contractor, subcontractor,
supplier, materialmen, architect, engineer or other party which
furnished labor, materials or other services in connection with such
work and pursuant to which all liens, claims and other rights of such
party with respect to labor, material or services furnished in
connection with such work are unconditionally released and waived and
(ii) copies of any certificate(s) of occupancy relating to the Premises
issued by the Town of Wakefield.
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EXHIBIT 10.20
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether
voluntarily, involuntarily, by operation of law or otherwise,
neither this Lease nor the term and estate hereby granted, nor
any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred and that neither the
Premises nor any part thereof will be encumbered in any manner by
reason of any act or omission on the part of Tenant, or used or
occupied, by anyone other than Tenant, or for any use or purpose
other than a Permitted Use, or be sublet (which term, without
limitation, shall include granting of concessions, licenses and
the like) in whole or in part, or be offered or advertised for
assignment or subletting without Landlord's prior written
consent, which consent, subject to all other applicable
provisions of this Article VI, including, without limitation,
Landlord's rights pursuant to Section 6.1(c) and 6.1(d) hereof,
shall not be unreasonably withheld, conditioned or delayed.
Tenant shall reimburse Landlord for all reasonable costs and
expenses sustained or incurred by Landlord (not to exceed
$2,000.00 per event) in connection with any assignment or
subletting.
(b) The provisions of paragraph (a) of this Section shall apply
to a transfer (by one or more transfers) of a majority of the
stock or partnership interests, or other evidences of ownership
of Tenant as if such transfer were an assignment of this Lease;
but such provisions shall not apply to transactions with an
entity into or with which Tenant is merged or consolidated or to
which substantially all of Tenant's assets are transferred or to
any entity (an "Affiliate of Tenant") which controls or is
controlled by Tenant or is under common control with Tenant,
provided that in any of such events Tenant seeks to assign or
sublet to a party meeting the following criteria: (i) the
successor to Tenant in the case of a merger, consolidation or
transfer of all or substantially all of the assets of Tenant, has
a net worth computed in accordance with generally accepted
accounting principles at least equal to the net worth of Tenant
immediately prior to such merger, consolidation or transfer, (ii)
to the extent applicable under clause (i) hereof, proof
satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least 10 days prior to the effective
date of any such transaction, and (iii) the assignee or
sublessee, in all such cases, including transactions involving an
Affiliate of Tenant agrees directly with Landlord, by written
instrument in form satisfactory to Landlord, to be bound
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by all the obligations of Tenant hereunder including, without
limitation, the covenant against further assignment or
subletting. It is agreed and understood that the Take Back Option
set forth in Section 6.1(d) hereof shall not apply to
transactions described and permitted pursuant to this Section
6.1(b).
(c) If this Lease be assigned, or if the Premises or any part
thereof be sublet or occupied by anyone other than Tenant,
Landlord may, at any time and from time to time, collect rent and
other charges from the assignee, subtenant or occupant, and apply
the net amount collected to the rent and other charges herein
reserved, but no such assignment, subletting, occupancy,
collection or modification of any provisions of this Lease shall
be deemed a waiver of this covenant, or the acceptance of the
assignee, subtenant or occupant as a tenant or a release of the
original named Tenant from the further performance by the
original named Tenant hereunder. No assignment or subletting
hereunder shall relieve Tenant from its obligations hereunder and
Tenant shall remain fully and primarily liable therefor. No
assignment or subletting, or occupancy shall affect Permitted
Uses. Any subletting shall expire as of the day immediately
preceding the date of expiration of the Term of this Lease.
(d) In connection with any assignment or subletting, Tenant shall
first submit to Landlord in writing: (i) the name of the proposed
assignee or subtenant, (ii) such information as to its financial
responsibility and standing as Landlord may reasonably require
(except that Landlord need not be provided with such financial
information where the applicable transfer involves an Affiliate
of Tenant), and (iii) all terms and provisions upon which the
proposed assignment or subletting is to be made. Upon receipt
from Tenant of such request and information, the Landlord shall
have an option (sometimes hereinafter referred to as the "option"
or "Take Back Option") to be exercised in writing within Ten (10)
Business Days after its receipt from Tenant of such request and
information, if the request is to assign the Lease or to sublet
all of the Premises, to cancel or terminate this Lease, or, if
the request is to sublet a portion, of the Premises only, to
cancel and terminate this Lease with respect to such portion, in
each case, as of the date set forth in Landlord's notice of
exercise of such option, which shall be not less than fifteen
(15) nor more than sixty (60) days following the giving of such
notice; in the event Landlord shall exercise such option, Tenant
shall surrender possession of the entire Premises, or the portion
which is the subject of the option, as the case may be, on the
date set forth in such notice in accordance with the provisions
of this Lease relating to surrender of Premises at the expiration
of the Term. If
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this Lease shall be cancelled as to a portion of the Premises
only, Basic Rent and Escalation Charges shall thereafter be
abated proportionately according to the ratio the number of
square feet of the portion of the space surrendered bears to the
size of the Premises. As additional rent, Tenant shall reimburse
Landlord promptly for reasonable legal and other expenses
incurred by Landlord (not to exceed $2,000.00 per event) in
connection with any request by Tenant for consent to assignment
or subletting.
If Landlord shall not exercise its option pursuant to the
foregoing provisions, Landlord will not unreasonably delay or
withhold its consent to the assignment or subletting to the party
referred to upon all the terms and provisions set forth in
Tenant's notice to Landlord, provided that the terms and
provisions of such assignment or subletting shall specifically
make applicable to the assignee or sublessee all of the
provisions of this Article VI of the Lease so that Landlord shall
have against the assignee or sublessee all rights with respect to
any further assignment or subletting which are set forth in
Article VI of the Lease as amended hereby except that no such
assignee or sublessee shall have any right to further assign or
sublet the Premises. Further, in any case where Landlord consents
to an assignment or a subletting, Landlord shall be entitled to
receive 50% of all Subleasing Overages (as said term is
hereinafter defined). As used herein, the term "Subleasing
Overages" shall mean, for each period in question, all amounts
received by Tenant in excess of Basic Rent and Escalation Charges
and other items of additional rent reserved under this Lease
attributable to the space sublet (including, without limitation,
all lump sum payments made in connection therewith).
Any such assignment or subletting shall nevertheless be subject
to all the terms and provisions of Article VI and no assignment
shall be binding upon Landlord or any of Landlord's mortgagees,
unless Tenant shall deliver to Landlord an instrument in
recordable form which contains a covenant of assumption by the
assignee running to Landlord and all persons claiming by, through
or under Landlord. The failure or refusal of the assignee to
execute such instrument of assumption shall not release or
discharge the assignee from its liability as Tenant hereunder. In
addition, Tenant shall furnish to Landlord a conformed copy of
any sublease effected under terms of this Article VI. In no event
shall the Tenant hereunder be released from its liability under
this Lease.
Landlord shall not be deemed unreasonable in refusing to approve
a sublease wherein the proposed subtenant is a tenant of any
building in the Office Park and Landlord has
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space of comparable size and utility as the space proposed to be
sublet available for leasing in the Office Park.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
Landlord agrees to keep in good order, condition and repair the
parking areas, roof of the Building, public or common areas of
the Property, exterior walls (including exterior glass) and
structure and foundation of the Building (including plumbing,
HVAC, mechanical and electrical systems installed by Landlord but
excluding any systems installed specifically for Tenant's benefit
or serving the Premises exclusively), all insofar as they affect
the Premises, except that Landlord shall in no event be
responsible to Tenant for (i) the condition of glass in the
Premises or for the doors (or related glass and finish work)
leading to the Premises, or (ii) for any special or supplemental
HVAC equipment installed within the Premises to serve Tenant's
special computer room and equipment needs or (iii) for any
condition in the Premises or the Building caused by any act or
neglect of Tenant, its agents, employees, invitees or contractors
(reasonable wear and tear excepted). Landlord shall not be
responsible to make any improvements or repairs to the Building
other than as expressly provided in this Section 7.1 provided,
unless expressly provided otherwise in this Lease. All costs and
expenses incurred by Landlord in performing its obligations under
this Section 7.1 shall be included in Operating Expenses (as said
term is hereafter defined) unless otherwise and to the extent
expressly excluded from Operating Expenses pursuant to Exhibit E.
(b) Landlord shall never be liable for any failure to make
repairs which Landlord has undertaken to make under the
provisions of this Section 7.1 or elsewhere in this Lease, unless
Tenant has given notice to Landlord of the need to make such
repairs, and Landlord has failed to commence to make such repairs
within a reasonable time but in no event later than thirty (30)
days after receipt of such notice, or fails to proceed with
reasonable diligence to complete such repairs once commenced.
(c) Any services which Landlord is required to furnish pursuant
to the provisions of this Lease may, at Landlord's option be
furnished from time to time, in whole or in part, by employees of
Landlord or by the Manager of the Property or by one or more
third persons. Landlord shall cause the paved portions of the
Property to be kept
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reasonably free and clear of snow, ice and refuse and shall cause
the landscaped areas of the Property to be maintained in a
reasonably attractive appearance.
7.2 TENANT'S AGREEMENT. (a) Tenant will keep neat and clean and
maintain in reasonably good order, condition and repair the
Premises and every part thereof, excepting only those repairs for
which Landlord is responsible under the terms of this Lease,
reasonable wear and tear of the Premises, and damage by fire or
other casualty and as a consequence of the exercise of the power
of eminent domain and those repairs caused by the Landlord's
negligence or Landlord's default under the terms of this Lease;
and shall surrender the Premises, at the end of the Term, in such
condition, ordinary wear and tear and damage by fire or other
casualty excepted. Without limitation, Tenant shall continually
during the Term of this Lease maintain the Premises in accordance
with all laws, codes and ordinances from time to time in effect
and all directions, rules and regulations of the proper officers
of governmental agencies having jurisdiction and shall, at
Tenant's own expense, obtain all permits, licenses and the like
required by applicable law except that Landlord shall be required
to obtain all licenses, permits and approvals necessary to
perform and complete Landlord's Work. Notwithstanding the
foregoing or the provisions of Article XII, Tenant shall be
responsible for the cost of repairs which may be necessary by
reason of damage to the Building caused by any wrongful act or
the negligent acts or omissions of Tenant or its agents,
employees, contractors or invitees (including any damage by fire
or any other casualty arising therefrom). Tenant shall be
responsible for the payment of all charges (whether billed
directly to Tenant by the applicable utility or submetered and
billed to Tenant by Landlord) for electricity, HVAC, gas and
other utilities used or consumed in the Premises in accordance
with the provisions of this Lease. Without limitation of the
foregoing, Tenant shall not do or perform, and shall not permit
its agents, servants, employees, contractors or invitees to do or
perform any act or thing in or upon the Property or the Office
Park which will invalidate or be in conflict with the certificate
of occupancy for the Premises or the Building or violate any
statute, law, rule, by-law or ordinance of any governmental
entity having jurisdiction over the Property (the
"Requirements"). Tenant shall, at Tenant's sole cost and
expenses, take all action, including the making of any
improvements or alterations to the Premises necessary to comply
with all Requirements (including, but not limited to the
Americans With Disabilities Act of 1990 (the "ADA"), as modified
and supplemented from time to time) which shall, with respect to
the Premises or with respect to any abatement of nuisance, impose
any violation, order or duty upon Landlord or Tenant arising
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from, or in connection with the Premises, Tenant's occupancy, use
or manner of use of the Premises (including, without limitation,
any occupancy, use or manner of use that constitutes a "place of
public accommodation" under the ADA), or any installations in the
Premises, or required by reason of a breach of any of Tenant's
covenants or agreements under this Lease, whether or not such
Requirements shall now be in effect or hereafter enacted or
issued, and whether or not any work required shall be ordinary or
extraordinary or foreseen or unforeseen at the date hereof.
Nothing contained in this Section 7.2(a) shall be deemed or
construed to require Tenant to make alterations or improvements
to the common areas of the Building including the elevator and
main entry lobby doors necessary to bring the same into
compliance with the ADA.
(b) If repairs are required to be made by Tenant pursuant to the
terms hereof, Landlord may demand that Tenant make the same
forthwith, and if Tenant refuses or neglects to commence such
repairs and complete the same with reasonable dispatch after such
demand, Landlord may (but shall not be required to do so) make or
cause such repairs to be made (the provisions of Section 14.18
being applicable to the costs thereof) and shall not be
responsible to Tenant for any loss or damage that may accrue to
Tenant's stock or business by reason thereof. Notwithstanding the
foregoing, Landlord may elect to take action hereunder
immediately and without notice to Tenant if Landlord reasonably
believes an emergency to exist.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load
upon any floor in the Premises exceeding the floor load per
square foot of area which such floor was designed to carry and
which is allowed by law. Landlord reserves the right to prescribe
the weight and position of all business machines and mechanical
equipment, including safes, which shall be placed so as to
distribute the weight. Business machines and mechanical equipment
shall be placed and maintained by Tenant at Tenant's expense in
settings sufficient, in Landlord's judgment, to absorb and
prevent vibration, noise and annoyance. Tenant shall not move any
safe, heavy machinery or heavy equipment into or out of the
Building without Landlord's prior consent, which consent may
include a requirement to provide insurance, naming Landlord as an
insured, in such amounts as Landlord may deem reasonable.
(b) If such safe, machinery or equipment requires special
handling, Tenant agrees to employ only persons holding a Master
Rigger's License to do such work, and that all work in connection
therewith shall comply with applicable laws and regulations. Any
such moving shall be at the sole risk and hazard of Tenant, and
Tenant will exonerate, indemnify
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and save Landlord harmless against and from any liability, loss,
injury, claim or suit resulting directly or indirectly from such
moving unless such loss liability, injury, claim or suit is
caused by the negligence or default of Landlord or Landlord's
representatives, contractors or employees.
7.4 BUILDING SERVICES. (a) Landlord shall also provide:
(i) Cold water (at temperatures supplied by the Town of
Wakefield) and reasonably hot water for drinking, lavatory and
toilet purposes. If Tenant uses water for any purpose other than
for ordinary lavatory and drinking purposes, Landlord may assess
a reasonable charge for the additional water so used, or install
a water meter and thereby measure Tenant's water consumption for
all purposes. In the latter event, Tenant shall pay the cost of
the meter and the cost of installation thereof including,
without limitation, any related charges incurred by Landlord in
connection with providing and installing the same. Tenant, at
Tenant's sole cost and expense, shall keep such meter and
related equipment in good working order and repair. Tenant
agrees to pay for water consumed, as shown on such meter,
together with the sewer charge based on such meter charges, as
and when bills are rendered, and in default in making such
payment Landlord may pay such charges and collect the same from
Tenant as an additional charge.
(ii) Access to the Premises twenty-four hours per day, subject
to reasonable security restrictions and restrictions based on
emergency conditions and all other applicable provisions of this
Lease.
(iii) Cleaning Services described in Exhibit F as and to the
extent required by Exhibit F.
(b) Landlord reserves the right to curtail, suspend, interrupt
and/or stop the supply of water, sewage, electrical current,
cleaning, and other services, and to curtail, suspend, interrupt
and/or stop use of entrances and/or lobbies serving access to the
Building, without thereby incurring any liability to Tenant, when
necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements in the judgment of
Landlord desirable or necessary, or when prevented from supplying
such services or use by strikes, lockouts, difficulty in
obtaining materials, accidents or any other cause beyond
Landlord's control, or by laws, orders or inability, by exercise
of reasonable diligence, to obtain electricity, water, gas,
steam, coal, oil or other suitable fuel or power. Except as
otherwise expressly provided in Section 7.6 of this Lease, no
diminution or abatement of rent or other compensation, nor any
direct,
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indirect or consequential damages shall or will be claimed by
Tenant as a result of, nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of, any
such interruption, curtailment, suspension or stoppage in the
furnishing of the foregoing services or use, irrespective of the
cause thereof. Failure or omission on the part of Landlord to
furnish any of the foregoing services or use shall not be
construed as an eviction of Tenant, actual or constructive, nor
(except as expressly provided in Section 7.6 of this Lease)
entitle Tenant to an abatement of rent, nor to render the
Landlord liable in damages, nor release Tenant from prompt
fulfillment of any of its covenants under this Lease.
Notwithstanding the foregoing, to the extent within its
reasonable control in exercising its rights pursuant to this
paragraph (b), Landlord shall use good faith efforts to (i) avoid
unreasonable interference with Tenant's use of the Premises (ii)
provide Tenant reasonable advance oral or written notice of the
proposed stoppage (except in the case of emergency when advance
notice shall not be necessary) and (iii) promptly restore any
service and utility curtailed or suspended.
(c) In no event shall Landlord be required to provide any
cafeteria or food service operation in the Building or Office
Park.
7.5 ELECTRICITY. (a) The electrical service for the lights and
outlets in the Premises shall be 10 ▇▇▇▇▇ per square foot of
Premises Rentable Area (the "Electric Capacity") and shall be
made available to Tenant at the Premises. Tenant acknowledges and
agrees that there is a sub-meter or separate electrical meter in
the Premises for the purpose of measuring Tenant's use and
consumption of electricity in the Premises, and Tenant shall make
direct payment to the applicable utility for any costs, expenses
and charges for electricity relating to the Premises. Landlord
shall permit existing wires, pipes, risers, conduits and other
electrical equipment to be used for the purpose of providing
electrical service to the Premises. Tenant covenants and agrees
that its electrical usage and consumption will not
disproportionately "siphon off" electrical service necessary for
other tenants of the Building and that its total connected load
will not exceed the maximum load from time to time permitted by
applicable governmental regulations nor the Electrical Capacity
as defined above. Landlord shall not in any way be liable or
responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur if, during the Term of this Lease,
either the quantity or character of electric current is changed
or electric current is no longer available or suitable for
Tenant's requirements due to a factor or cause beyond Landlord's
control. Tenant shall purchase and install all lamps, tubes,
bulbs, starters and
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ballasts. Tenant shall pay all charges for electricity, HVAC and
other utilities used or consumed in the Premises. Tenant shall
bear the cost of repair and maintenance of any electric or gas
meter serving the Premises.
(b) In order to insure that the foregoing requirements are not
exceeded and to avert possible adverse affect on the Building's
electrical system, Tenant shall not, without Landlord's prior
consent (after completion or Landlord's Work as shown on Tenant's
Plans), connect any fixtures, appliances or equipment to the
Building's electrical distribution system which operates on a
voltage in excess of 120 volts nominal or which exceeds the
Electric Capacity (as defined above). If Landlord shall consent
to the connection of any such fixtures, appliances or equipment,
all additional risers or other electrical facilities or equipment
required therefor shall be provided by Landlord and the cost
thereof shall be paid by tenant upon Landlord's demand as
Additional Rent. From time to time during the Term of this Lease,
Landlord shall have the right to have an electrical consultant
selected by Landlord make a survey of Tenant's electric usage,
the result of which shall be conclusive and binding upon Landlord
and Tenant. In the event that such survey shows that Tenant has
exceeded the requirements set forth in paragraph (a), in addition
to any other rights Landlord may have hereunder, Tenant shall,
upon demand, reimburse Landlord for the costs of such survey.
To the extent not now available to the Premises, Landlord shall,
at Landlord's expense, provide one (1) ton of HVAC service
capacity (including ductwork, controls and diffusers where
necessary) for each 350 square feet of Premises Rentable Area as
of the Commencement Date.
7.6 INTERRUPTION OF ESSENTIAL SERVICES. Notwithstanding anything
contained in this Lease to the contrary, if (a) an interruption
or curtailment, suspension or stoppage of an Essential Service
(as said term is hereinafter defined) shall occur (any such
interruption of an Essential Service being hereinafter referred
to as a "Service Interruption"), and (b) such Service
Interruption occurs or continues as a result of the Landlord's
negligent acts or omissions and (c) such Service Interruption
continues for more than five (5) Business Days after Landlord
shall have received notice thereof from Tenant and (d) as a
result of such Service Interruption, the conduct of Tenant's
normal operations in the Premises are materially and adversely
affected, then there shall be an abatement of one day's Basic
Rent and Escalation Charges otherwise payable hereunder for each
day during which such Service Interruption continues beyond such
five (5) Business Day period; provided, further, however, that if
any part of the Premises is reasonably useable for Tenant's
operations
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or if Tenant conducts all or any part of its operations
notwithstanding such Service Interruption, then the amount of
each daily abatement of Basic Rent and Escalation Charges
otherwise payable hereunder shall only be proportionate to the
nature and extent of the interruption of Tenant's normal
operations. The rights granted under this paragraph shall be (i)
personal to the original Tenant named in this Lease and shall
terminate upon any assignment of the Lease or any subletting of
all or any portion of the Premises outstanding at any one time
and (ii) not be binding upon any mortgagee who shall take title
to the Property by foreclosure or deed in lieu of foreclosure or
any purchaser at foreclosure. For purposes hereof, the term
"Essential Services" shall mean the following services: access to
the Premises, telephone service, heating, air-conditioning,
water, sewer, and electricity but only if, as and to the extent
that Landlord is required to provide such service to Tenant under
this Lease. Any abatement of Basic Rent and additional rent under
this paragraph shall apply only with respect to Basic Rent
allocable to the period after each of the conditions set forth in
subsections (a) through (d) hereof shall have been satisfied and
only during such times as each of such conditions shall exist and
be continuing.
ARTICLE VIII
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of
this Article, the term "Tax Year" shall mean each twelve-month
period commencing on January 1 and each twelve-month period
thereafter commencing during the Term of this Lease; and the term
"Taxes" shall mean all real estate taxes, special assessments and
betterment assessments assessed with respect to the Property for
any Tax Year.
(b) In the event that during any Tax Year after the Tax Year in
which Base Taxes are determined, Taxes shall be greater than Base
Taxes, Tenant shall pay to Landlord, as an Escalation Charge, an
amount equal to (i) the excess of Taxes over Base Taxes for each
Tax Year (or partial Tax Year) falling within the Term of this
Lease, multiplied by (ii) the Escalation Factor, such amount to
be apportioned for any fraction of a Tax Year in which the
Commencement Date falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of Taxes shall be
made monthly and at the time and in the fashion herein provided
for the payment of Basic Rent. The monthly amount so to be paid
to Landlord shall be sufficient to
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provide Landlord by the time real estate tax payments are from
time to time due a sum equal to Tenant's required payments, as
reasonably estimated by Landlord from time to time, on account of
Taxes for the then current Tax Year. Once established, the
Landlord may change the monthly estimated amount not more than
once in any Tax Year. Promptly after receipt by Landlord of bills
for such Taxes, Landlord shall advise Tenant of the amount
thereof and the computation of Tenant's payment on account
thereof. If estimated payments theretofore made by Tenant for the
Tax Year covered by such bills exceed the required payments on
account thereof for such Year, Landlord shall credit the amount
of overpayment against subsequent obligations of Tenant on
account of Taxes (or refund such overpayment if the Term of this
Lease has ended and Tenant has no further obligation to
Landlord); but if the required payments on account thereof for
such Tax Year are greater than estimated payments theretofore
made on account thereof for such Tax Year, Tenant shall make
payment to Landlord within 30 days after being so advised by
Landlord. Landlord shall have the same rights and remedies for
the non-payment by Tenant of any payments due on account of Taxes
as Landlord has hereunder for the failure of Tenant to pay Basic
Rent. The obligations of Tenant pursuant to this Article VIII
shall survive expiration or earlier termination of the Term of
this Lease.
8.2 ABATEMENT. If Landlord shall receive any tax refund or
reimbursement of Taxes or sum in lieu thereof with respect to any
Tax Year which is not due to vacancies in the Building, then out
of any balance remaining thereof after deducting Landlord's
expenses reasonably incurred in obtaining such refund, Landlord
shall, provided there does not then exist a Default of Tenant,
credit an amount equal to such refund or reimbursement or sum in
lieu thereof (exclusive of any interest) multiplied by the
Escalation Factor against the obligations of Tenant next falling
due under this Article VIII; provided, that in no event shall
Tenant be entitled to receive a credit equal to more than the
payments made by Tenant on account of Taxes for such Year
pursuant to paragraph (b) of Section 8.1 or to receive any
payments or abatements of Basic Rent if Taxes for any Tax Year
are less than Base Taxes or if Base Taxes are abated.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall
replace the current method of assessment of real estate taxes in
whole or in part, or the type thereof, or if additional types of
taxes are imposed upon the Property or Landlord relating to the
Property, Tenant agrees that Tenant shall pay a proportionate
share of the same as an additional charge computed in a fashion
consistent with the method of computation herein provided, to the
end that
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Tenant's share thereof shall be, to the maximum extent
practicable, comparable to that which Tenant would bear under the
foregoing provisions.
(b) If a tax (other than Federal or State net income tax) is
assessed on account of the rents or other charges payable by
Tenant to Landlord under this Lease, Tenant agrees to pay the
same as an additional charge within ten (10) days after billing
therefor, unless applicable law prohibits the payment of such tax
by Tenant.
ARTICLE IX
OPERATING EXPENSES
9.1 DEFINITIONS. For the purposes of this Article, the following
terms shall have the following respective meanings:
(i) Operating Year: Each calendar year (January 1 through
December 31) in which any part of the Term of this Lease shall
fall.
(ii) Operating Expenses: The aggregate costs or expenses
reasonably incurred by Landlord with respect to the operation,
administration, insuring, cleaning, repair, maintenance and
management of the Property (but specifically excluding Utility
Expenses) all as set forth in Exhibit E annexed hereto, provided
that, if during any portion of the Operating Year for which
Operating Expenses are being computed, less than all of Building
Rentable Area was occupied by tenants or if Landlord is not
supplying all tenants with the services being supplied hereunder,
actual Operating Expenses incurred shall be reasonably
extrapolated by Landlord on an item by item basis to the
estimated Operating Expenses that would have been incurred if the
Building were fully occupied for such Year and such services were
being supplied to all tenants, and such extrapolated amount
shall, for the purposes hereof, be deemed to be the Operating
Expenses for such Year.
(iii) Utility Expenses: The aggregate costs or expenses
reasonably incurred by Landlord with respect to supplying
electricity (other than electricity supplied to those portions of
the Building leased to tenants), oil, steam, gas, water and sewer
and other utilities supplied to the Property and not paid for
directly by tenants, provided that, if during any portion of the
Operating Year for which Utility Expenses are being computed,
less than all Building Rentable Area was occupied by tenants or
if Landlord is not supplying all tenants with the
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utilities being supplied hereunder, actual utility expenses
incurred shall be reasonably extrapolated by Landlord on an
item-by-item basis to the estimated Utility Expenses that would
have been incurred if the Building were fully occupied for such
Year and such utilities were being supplied to all tenants, and
such extrapolated amount shall, for the purposes hereof, be
deemed to be the Utility Expenses for such Year.
9.2 TENANT'S PAYMENTS. (a) In the event that during any Operating
Year after the Operating Year in which Base Operating Expenses
are established, Operating Expenses shall exceed Base Operating
Expenses, Tenant shall pay to Landlord, as an Escalation Charge,
an amount equal to (i) the excess of Operating Expenses over Base
Operating Expenses for each Operating Year (or partial Operating
Year) falling within the Term of this Lease multiplied by (ii)
the Escalation Factor, such amount to be apportioned for any
partial Operating Year in which the Commencement Date falls or
the Term of this Lease ends. Landlord shall not recover more than
100% of its increases in Operating Expenses pursuant to this
Section 9.2(a)
(b) In the event that during any Operating Year after the
Operating Year in which Base Utility Expenses are determined,
Utility Expenses shall exceed Base Utility Expenses, Tenant shall
pay to Landlord, as an Escalation Charge, an amount equal to (i)
the excess of Utility Expenses over Base Utility Expenses for
each Operating Year (or partial Operating Year) falling within
the Term of this Lease multiplied by (ii) the Escalation Factor,
such amount to be apportioned for any partial Operating Year in
which the Commencement Date falls or the Term of this Lease ends.
Landlord shall not recover more than 100% of its increases in
Utility Expenses pursuant to this Section 9.2(b).
(c) Estimated payments by Tenant on account of Operating Expenses
and Utility Expenses shall be made monthly and at the time and in
the fashion herein provided for the payment of Basic Rent. The
monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the end of each Operating Year a sum equal to
Tenant's required payments, as reasonably estimated by Landlord
from time to time during each Operating Year, on account of
Operating Expenses and Utility Expenses for such Operating Year.
Once established, the Landlord may change the monthly estimated
amount not more than once in any Operating Year. After the end of
each Operating Year, Landlord shall submit to Tenant a reasonably
detailed accounting of Operating Expenses and Utility Expenses
for such Operating Year, and Landlord shall certify to the
accuracy thereof. If estimated payments theretofore made for such
Operating Year by Tenant exceed Tenant's required
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payment on account thereof for such Operating Year, according to
such statement, Landlord shall credit the amount of overpayment
against subsequent obligations of Tenant with respect to
Operating Expenses and Utility Expenses (or refund such
overpayment if the Term of this Lease has ended and Tenant has no
further obligation to Landlord), but, if the required payments on
account thereof for such Operating Year are greater than the
estimated payments (if any) theretofore made on account thereof
for such Operating Year, Tenant shall make payment to Landlord
within thirty (30) days after being so advised by Landlord.
Landlord shall have the same rights and remedies for the
nonpayment by Tenant of any payments due on account of Operating
Expenses and Utility Expenses as Landlord has hereunder for the
failure of Tenant to pay Basic Rent. The obligations of Tenant
under this Article IX shall survive expiration or earlier
termination of the Term of this Lease. Landlord shall maintain
its books and records in accordance with generally accepted
accounting principles.
(d) Provided that Tenant shall have first paid all amounts due
and payable by Tenant pursuant to this Article IX and upon the
written request of Tenant (but not more than once with respect to
any Operating Year), Tenant shall be permitted to inspect
Landlord's books and records pertaining to Operating Expenses
applicable to the Property for such Operating Year. Such
inspection shall take place at a mutually agreeable time at the
location where such books and records are kept by the Manager in
the ordinary course. Tenant shall keep the results of any such
inspection strictly confidential and shall not be permitted to
use any third party to perform such audit or inspection, other
than an independent firm of certified public accountants (A)
reasonably acceptable to Landlord, (B) which is not compensated
on a contingency fee basis or in any other manner which is
dependent upon the results of such audit or inspection (and
Tenant shall deliver the fee agreement or other similar evidence
of such fee arrangement to Landlord upon request), and (C) which
agrees with Landlord in writing to maintain the results of such
audit or inspection confidential. Tenant may not conduct an
inspection or have an audit performed more than once for and with
respect to any Operating Year. Failure of Tenant to provide
Landlord with a written request to review such books and records
within 90 days after receipt of a final statement pursuant to
this Article IX with respect to each respective Operating Year
shall be deemed a waiver of Tenant's rights hereunder with
respect to such Operating Year. In the event that any such audit
or inspection reveals a discrepancy or overstatement of a
particular line item of Operating Expense then Tenant shall be
permitted to review Landlord's records with respect to such line
item
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for the two (2) immediately preceding Operating Years (but only
as to the applicable line item and not others).
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be
made effective according to law, Tenant agrees to defend,
indemnify and save harmless Landlord and the Manager and their
respective officers, directors and shareholders, from and against
all claims, loss, liability, costs and damages of whatever nature
caused by the following: (i) any accident, injury, death or
damage whatsoever to any person, or to the property of any
person, occurring in the Premises; (ii) any accident, injury,
death or damage occurring outside of the Premises but on the
Property, where such accident, damage or injury results from an
act or omission on the part of Tenant or Tenant's agents,
servants, independent contractors, or any other person acting
under Tenant; or (iii) with the conduct or management of the
Premises or of any business therein, or any thing or work
whatsoever done, or any condition created (other than by
Landlord) in or about the Premises; and, in any case, occurring
after the date of this Lease, until the end of the Term of this
Lease, and thereafter so long as Tenant is in occupancy of the
Premises. This indemnity and hold harmless agreement shall
include indemnity against all costs, expenses and liabilities
incurred in, or in connection with, any such claim or proceeding
brought thereon, and the defense thereof, including, without
limitation, reasonable attorneys' fees and costs at both the
trial and appellate levels. Notwithstanding the above to the
contrary, Tenant shall not be required to defend, indemnify or
save harmless the above parties in the event that and to the
extent that such claim, loss, liability or cost arose as the
result of the negligence or default of the respective party
seeking indemnification. The provisions of this Section 10.1
shall survive the expiration or any earlier termination of this
Lease.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full
force from the date upon which Tenant first enters the Premises
for any reason, throughout the Term of this Lease, and thereafter
so long as Tenant is in occupancy of any part of the Premises, a
policy of general liability and property damage insurance
(including broad form contractual liability, independent
contractor's hazard and completed operations coverage) under
which Landlord, Manager and any mortgagee from time to time
holding a mortgage on the Property are named as additional
insureds.
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Each such policy shall be non-cancellable and non-amendable with
respect to Landlord, Manager and Landlord's said designees
without thirty (30) days' prior notice to Landlord and shall be
in at least the amounts of the Initial Public Liability Insurance
specified in Section 1.3 or such greater amounts as Landlord
shall from time to time request, and a certificate thereof shall
be delivered to Landlord.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to use and occupy the
Premises and to use such other portions of the Property as Tenant
is herein given the right to use at Tenant's own risk; and
Landlord shall have no responsibility or liability for any loss
of or damage to Tenant's Removable Property or for any
inconvenience, annoyance, interruption or injury to business
arising from Landlord's making any repairs or changes which
Landlord is permitted by this Lease or required by law to make in
or to any portion of the Premises or other sections of the
Property, or in or to the fixtures, equipment or appurtenances
thereof. Tenant shall carry "all-risk" property insurance on a
"replacement cost" basis (including so-called improvements and
betterments), and provide a waiver of subrogation as required in
Section 14.20. Nothing contained in this Section 10.3 shall be
deemed or construed to exculpate Landlord from its own negligence
or the negligence of Landlord's representatives, servants or
employees. The provisions of this Section 10.3 shall be
applicable from and after the execution of this Lease and until
the end of the Term of this Lease, and during such further period
as Tenant may use or be in occupancy of any part of the Premises
or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this
agreement may be made effective according to law, Tenant agrees
that Landlord shall not be responsible or liable to Tenant, or to
those claiming by, through or under Tenant, for any loss or
damage that may be occasioned by or through the acts or omissions
of persons occupying adjoining premises or any part of the
premises adjacent to or connecting with the Premises or any part
of the Property or otherwise. The provisions of this Section 10.4
shall survive the expiration or any earlier termination of this
Lease.
10.5 LANDLORD'S INDEMNITY. Subject to all other applicable provisions
of this Lease including, without limitation, Section 14.20
(Waiver of Subrogation) and Section 14.4 (Landlord's Liability),
Landlord hereby agrees to indemnify, defend and hold harmless
Tenant and it's officers, directors and shareholders against any
claims, loss, damages or liability for injury to person,
including
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death, or damage to property, caused by the intentional
misconduct or gross negligence of Landlord or the Manager or
their respective employees, agents, servants or contractors, and
from any costs relating thereto (including, without limitation,
attorneys' fees). Notwithstanding the foregoing to the contrary,
Landlord shall not be required to defend, indemnify or save
harmless the above parties in the event that and to the extent
that such claim, loss, liability or cost arose as the result of
the negligence or default of the respective party seeking
indemnification.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. Landlord shall upon reasonable advance oral or
written notice to Tenant (except in the case of an emergency
where no notice shall be required) have the right to enter the
Premises at all reasonable hours for the purpose of inspecting or
making repairs to the same, and Landlord shall also have the
right to make access available at all reasonable hours to
prospective or existing mortgagees, purchasers or tenants of any
part of the Property. In exercising its rights hereunder,
Landlord shall use good faith efforts to avoid unreasonable
interference with Tenant's use of the Premises.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT. If the Premises or the means of access to the
Property or the parking areas should be damaged by fire or
casualty, Basic Rent and Escalation Charges payable by Tenant
shall ▇▇▇▇▇ proportionately for the period in which, by reason of
such damage, there is material interference with Tenant's use of
the Premises, having regard to the extent to which Tenant may be
required to discontinue Tenant's use of all or a portion of the
Premises, but such abatement or reduction shall end if and when
Landlord shall have substantially restored the Premises
(excluding any alterations, additions or improvements made by
Tenant pursuant to Section 5.2, Tenant's trade fixtures and
Tenant's Removable Property) to the condition in which they were
prior to such damage. If the Premises shall be affected by any
exercise of the power of eminent domain, Basic Rent and
Escalation Charges payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent
of the loss of use thereof suffered by Tenant. In no event shall
Landlord have any liability for damages to Tenant for
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inconvenience, annoyance, or interruption of business arising
from such fire, casualty or eminent domain.
12.2 RIGHT OF TERMINATION. If the Premises or the access to the
Property or the parking areas are damaged by fire or casualty,
Landlord shall cause an independent contractor designated by
Landlord to make a written estimate (the "Estimate") of the
amount of time normally required in the ordinary course to
perform and substantially complete the restoration of the damage
in question and a copy of the Estimate shall be provided to
Landlord and Tenant within forty five (45) days after the
casualty. If the Premises or the Building are substantially
damaged by fire or casualty (the term "substantially damaged"
meaning damage of such a character that the same cannot,
according to the Estimate, reasonably be expected to be repaired
within ninety (90) days from the time the repair work would
commence), or if any part of the Building or Property is taken by
any exercise of the right of eminent domain, then Landlord shall
have the right to terminate this Lease (even if Landlord's entire
interest in the Premises may have been divested) by giving notice
of Landlord's election so to do within sixty (60) days after the
occurrence of such casualty or the effective date of such taking
(either such 60 day period being hereafter the "Notice Period"),
whereupon this Lease shall terminate sixty (60) days after the
date of such notice with the same force and effect as if such
date were the date originally established as the expiration date
hereof.
12.3 RESTORATION; TENANT'S RIGHT OF TERMINATION. (a) If the estimated
amount of time required to perform and substantially complete
such restoration in the ordinary course as set forth in the
Estimate exceeds one hundred eighty (180) days from the time
repair work would commence, then Tenant shall have the right to
terminate this Lease effective as of the date of Tenant's
Termination Notice, such right to be exercised, if at all, by
written notice (a "Tenant's Termination Notice") to Landlord
within ten (10) days after Tenant's receipt of the Estimate.
Failure of Tenant to exercise such right within the time and
manner herein provided, time being of the essence, shall
constitute a waiver of such right by Tenant, time being of the
essence. Any termination of this Lease by Tenant pursuant to this
Section 12.3(a) shall have the same force and effect as if such
date were the date of termination originally established as the
date of expiration of the Term of this Lease.
(b) If the Premises or the access to the Property or the
parking areas are damaged by fire or casualty and if this Lease
shall not be terminated pursuant to Section 12.2, 12.3(a) or
12.5, Landlord shall thereafter use due diligence to restore the
Premises to its proper condition
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as required by Section 12.1. Landlord's obligation to restore
shall be limited to the net amount of insurance proceeds actually
made available to the Landlord for the purpose of restoration
plus the amount of any deductible carried by Landlord and
provided, further, that Landlord shall have no obligation to
restore the Premises or the Building as and to the extent the
same cannot be lawfully restored under then applicable zoning and
building laws. If, for any reason, restoration of the Premises to
the condition required by this Lease shall not be substantially
completed as aforesaid within the one hundred eighty (180) day
period set forth in 12.3(a) hereof (which 180 day period shall be
extended due to Force Majeure or any reason beyond the control of
Landlord), Tenant shall have the right to terminate this Lease by
giving notice to Landlord thereof within (30) days after the
expiration of such period (as so extended). Upon the giving of
such notice, this Lease shall (effective as of a date set forth
in such notice which date shall not be sooner than 30 nor later
than 60 days after the giving of such notice) cease and come to
an end without further liability or obligation on the part of
either party. If at any time Landlord shall determine that the
proceeds of insurance or condemnation awards to be available to
Landlord for restoration are or will be insufficient for
restoration of the Premises to the condition required by this
Lease and in the event Landlord shall not elect, in its sole
discretion, to advance the additional monies necessary to
complete such restoration, then Landlord shall provide Tenant
written notice of such insufficiency and upon receipt of such
notice, Tenant shall have the right to terminate this Lease by
written notice to Landlord not later than thirty (30) days after
Tenant's receipt of such written notice from Landlord, time being
of the essence. Such rights of termination set forth in this
Section 12.3 shall be Tenant's sole and exclusive remedy at law
or in equity for Landlord's failure to complete such restoration.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and
Tenant hereby grants and assigns to Landlord, all rights to
recover for damages to the Property and the leasehold interest
hereby created, and to compensation accrued or hereafter to
accrue by reason of such taking, damage or destruction, and by
way of confirming the foregoing, Tenant hereby grants and
assigns, and covenants with Landlord to grant and assign to
Landlord, all rights to such damages or compensation. Nothing
contained herein shall be construed to prevent Tenant from, at
its sole cost and expense, prosecuting a separate condemnation
proceeding with respect to a claim for the value of any of
Tenant's Removable Property installed in the Premises by Tenant
at Tenant's expense or Tenant's furniture, fixtures and equipment
and for relocation expenses, provided that
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such action shall not affect the amount of compensation otherwise
recoverable by Landlord from the taking authority.
12.5 CONDEMNATION. Notwithstanding the foregoing provisions of this
Article XII to the contrary, if (a) all or any material portion
of the Premises is permanently taken by exercise of the power of
eminent domain or (b) the means of access to and from the
Premises or if more than 15% of the parking areas on the Property
are permanently taken by exercise of the power of eminent domain
and Landlord is not able to provide Tenant with a substantially
similar and reasonable means of access to and egress from the
Premises or parking spaces, then, Landlord and Tenant shall each
have the right to terminate this Lease effective as of the date
(the "Termination Date") that Tenant is required to vacate such
portion (or all of the Premises) or cease using such means of
access or egress or parking areas, by giving the other party
written notice of such termination within thirty (30) days of
receipt of the final notice of such taking, time being of the
essence. In the event of such termination, this Lease and the
rights and obligations of the parties hereunder shall cease and
terminate as of the Termination Date as if such date were the
date set forth in this Lease for expiration of the Term of this
Lease. Such right of termination, together with Tenant's rights
pursuant to Section 12.1 and Section 12.4, shall be Tenant's sole
and exclusive rights with respect to damage or loss due to
condemnation.
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of
this Lease any one or more of the following events (herein
referred to as a "Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation Charges
or other sums payable as additional charges hereunder when due
and such failure shall continue for more than ten (10) days after
Tenant's receipt of written notice from Landlord to Tenant; or
(ii) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be performed
or observed, or Tenant shall desert or abandon the Premises or
the Premises shall become, or appear to have become vacant
(regardless whether the keys shall have been surrendered or the
rent and all other sums due shall have been paid), and Tenant
shall fail to remedy the same within thirty (30) days after
receipt of
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written notice to Tenant specifying such neglect or failure, or
if such failure is of such a nature that Tenant cannot reasonably
remedy the same within such thirty (30) day period, Tenant shall
fail to commence promptly to remedy the same and to prosecute
such remedy to completion with diligence and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law directed against
Tenant; or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in bankruptcy or
shall be adjudicated bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief for itself under any present or future Federal, State or
other statute, law or regulation for the relief of debtors, or
shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit in writing
its inability to pay its debts generally as they become due
unless such assignment, petition, answer, consent, acquiescence
or admission is dismissed or withdrawn within ninety (90) days;
or
(v) A petition shall be filed against Tenant in bankruptcy or
under any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar
relief under any present or future Federal, State or other
statute, law or regulation and shall remain undismissed or
unstayed for an aggregate of ninety (90) days (whether or not
consecutive), or if any debtor in possession (whether or not
Tenant) trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties or of the Premises shall
be appointed without the consent or acquiescence of Tenant and
such appointment shall remain unvacated or unstayed for an
aggregate of sixty (60) days (whether or not consecutive);
then in any such case (1) if such Default of Tenant shall occur
prior to the Commencement Date, this Lease shall ipso facto, and
without further act on the part of Landlord, terminate, and (2)
if such Default of Tenant shall occur after the Commencement
Date, Landlord may terminate this Lease by notice to Tenant, and
thereupon this Lease shall come to an end as fully and completely
as if such date were the date herein originally fixed for the
expiration of the Term of this Lease, and Tenant will then quit
and surrender the Premises to Landlord, but Tenant shall remain
liable as hereinafter provided.
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(b) If this Lease shall be terminated as provided in this
Article, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the Premises
shall be taken or occupied by someone other than Tenant, then
Landlord may, without notice, re-enter the Premises by summary
proceedings or any other means permitted by law (and as and to
the extent permitted by law) or upon obtaining a judgment for
possession and execution from a court of competent jurisdiction
remove and dispossess Tenant and all other persons and any and
all property from the same, as if this Lease had not been made.
(c) In the event of any termination, Tenant shall pay the Basic
Rent, Escalation Charges and other sums payable hereunder up to
the time of such termination, and thereafter Tenant, until the
end of what would have been the Term of this Lease in the absence
of such termination, and whether or not the Premises shall have
been relet, shall be liable to Landlord for, and shall pay to
Landlord, as liquidated current damages, the Basic Rent,
Escalation Charges and other reasonable sums which would be
payable hereunder if such termination had not occurred, less the
net proceeds, if any, of any reletting of the Premises, after
deducting all reasonable expenses in connection with such
reletting, including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees,
advertising, expenses of employees, alteration costs and expenses
of preparation for such reletting. Tenant shall pay such current
damages to Landlord monthly on the days which the Basic Rent
would have been payable hereunder if this Lease had not been
terminated.
(d) At any time after such termination, whether or not Landlord
shall have collected any such current damages, as liquidated
final damages and in lieu of all such current damages beyond the
date of such demand, at Landlord's election Tenant shall pay to
Landlord an amount equal to the excess (discounted to present
value using a discount factor reasonably determined by Landlord
in its sole but reasonable judgment), if any, of the Basic Rent,
Escalation Charges and other sums as hereinbefore provided which
would be payable hereunder from the date of such demand (assuming
that, for the purposes of this paragraph, annual payments by
Tenant on account of Taxes, Utility Expenses and Operating
Expenses would be the same as the payments required for the
immediately preceding Operating or Tax Year) for what would be
the then unexpired Term of this Lease if the same had remained in
effect, over the then fair net rental value of the Premises for
the same period.
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(e) In the case of any Default by Tenant, re-entry, expiration
and dispossession by summary proceeding or otherwise, Landlord
(i) shall, subject to the provisions of Section 13.1(i) hereafter
set forth, use reasonable efforts to re-let the Premises or any
part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's option be
equal to or less than or exceed the period which would otherwise
have constituted the balance of the Term of this Lease and may
grant concessions or free rent to the extent that Landlord
considers advisable and necessary to re-let the same and (ii) may
make such reasonable alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable and
necessary for the purpose of reletting the Premises; and the
making of such alterations, repairs and decorations shall not
operate or be construed to release Tenant from liability
hereunder as aforesaid. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed,
or in the event of Landlord obtaining possession of the Premises,
by reason of the violation by Tenant of any of the covenants and
conditions of this Lease.
(f) Intentionally Omitted.
(g) The specified remedies to which Landlord may resort hereunder
are not intended to be exclusive of any remedies or means of
redress to which Landlord may at any time be entitled to
lawfully, and Landlord may invoke any remedy (including the
remedy of specific performance) allowed at law or in equity as if
specific remedies were not herein provided for.
(h) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses) in
enforcing its rights hereunder or occasioned by any Default of
Tenant shall be paid by Tenant.
(i) Subject to the conditions and limitations hereafter set
forth, Landlord agrees to use reasonable efforts to relet the
Premises after Tenant vacates the Premises in the event that the
Lease is terminated by Landlord as the result of a Default of
Tenant hereunder. Marketing of Tenant's Premises in a manner
similar to the manner in which Landlord markets other premises
within Landlord's control in the Building shall be deemed to have
satisfied Landlord's obligation to use "reasonable efforts". In
no event shall Landlord be required to (a) solicit or entertain
negotiations with any other prospective tenants for the Premises
until Landlord obtains full and complete possession of the
Premises including, without limitation,
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the final and unappealable legal right to relet the Premises free
of any claim of Tenant, (b) relet the Premises before leasing
other vacant space in the Building or any other building in the
Office Park owned by Landlord, (c) lease the Premises for a
rental or upon terms less than the current fair market rental and
terms then prevailing for similar office space in the Building,
or (d) enter into a lease with any proposed tenant that does not
have, in Landlord's reasonable opinion, sufficient financial
resources or operating experience to operate the Premises in a
first-class manner.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default of
the performance of any of Landlord's obligations hereunder unless
and until Landlord shall have (a) unreasonably failed to commence
to perform such obligation within a reasonable period of time
(but in no event more than thirty (30) days) after notice by
Tenant to Landlord specifying wherein Landlord has failed to
perform any such obligations or (b) failed to diligently complete
the performance of such obligations once commenced.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will
not do or permit anything to be done in or upon the Premises, or
bring in anything or keep anything therein, which shall increase
the rate of property or liability insurance on the Premises or of
the Building above the standard rate applicable to premises being
occupied for Permitted Uses; and Tenant further agrees that, in
the event that Tenant shall do any of the foregoing, Tenant will
promptly pay to Landlord, on demand, any such increase resulting
therefrom, which shall be due and payable as an additional charge
hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain
of any action or non-action on the part of the other, no matter
how long the same may continue, shall never be a waiver by Tenant
or Landlord, respectively, of any of the other's rights
hereunder. Further, no waiver at any time of any of the
provisions hereof by Landlord or Tenant shall be construed as a
waiver of any of the other provisions hereof, and a waiver at any
time of any of the provisions hereof shall not be construed as a
waiver at any subsequent time of the same provisions. The consent
or approval of Landlord or Tenant to or of any action by the
other requiring such consent or approval shall not be construed
to waive or render unnecessary Landlord's or
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Tenant's consent or approval to or of any subsequent similar act
by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser
amount than shall be due from Tenant to Landlord shall be treated
otherwise than as a payment on account of the earliest
installment of any payment due from Tenant under the provisions
hereof. The acceptance by Landlord of a check for a lesser amount
with an endorsement or statement thereon, or upon any letter
accompanying such check, that such lesser amount is payment in
full, shall be given no effect, and Landlord may accept such
check without prejudice to any other rights or remedies which
Landlord may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Basic Rent and
Escalation Charges and observing, keeping and performing all of
the other terms and provisions of this Lease on Tenant's part to
be observed, kept and performed, shall lawfully, peaceably and
quietly have, hold, occupy and enjoy the Premises during the term
hereof, without hindrance or ejection by any persons lawfully
claiming under Landlord to have title to the Premises superior to
Tenant; the foregoing covenant of quiet enjoyment is in lieu of
any other covenant, express or implied.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look
solely to Landlord's then interest in the Property at the time
owned, for recovery of any judgment from Landlord; it being
specifically agreed that neither Landlord (original or successor)
nor any of its assets, agents, servants, employees, directors,
shareholders, officers, trustees and beneficiaries shall ever be
personally liable for any such judgment, or for the payment of
any monetary obligation to Tenant. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any
right that Tenant might otherwise have to obtain injunctive
relief or other equitable relief against Landlord or Landlord's
successors in interest, or to take any action not involving the
personal liability of Landlord (original or successor) to respond
in monetary damages from Landlord's assets other than Landlord's
equity interest in the Property.
(b) With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for
failure to furnish the same when prevented from doing so by Force
Majeure, strike, lockout, breakdown, accident, order or
regulation of or by any governmental authority, or failure of
supply, or inability by the exercise of reasonable diligence to
obtain supplies, parts or employees necessary to furnish such
services, or because of war or other emergency, or for any cause
beyond Landlord's reasonable control, or for any
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cause beyond Landlord's reasonable control, or for any cause due
to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees or any person claiming by, through or under
Tenant; nor shall any such failure give rise to any claim in
Tenant's favor that Tenant has been evicted, either
constructively or actually, partially or wholly.
(c) Except as provided in Section 14.19, in no event shall
Landlord or Tenant ever be liable to the other for any loss of
business or any other indirect or consequential damages.
(d) With respect to any repairs or restoration which are required
or permitted to be made by Landlord, the same may be made during
normal business hours provided that Landlord shall, to the extent
within its reasonable control, use good faith efforts to avoid
unreasonable interference with Tenant's use of the Premises.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from
any person, firm or other entity that it holds a mortgage or a
ground lease which includes the Premises, no notice from Tenant
to Landlord alleging any default by Landlord shall be effective
unless and until a copy of the same is given to such holder or
ground lessor (provided Tenant shall have been furnished with the
name and address of such holder or ground lessor), and the curing
of any of Landlord's defaults by such holder or ground lessor
shall be treated as performance by Landlord. Landlord hereby
warrants and represents to Tenant that as of the date of
execution and delivery of this Lease by Landlord, there is no
mortgage or ground lease with respect to Landlord's interest in
the Property which is superior to this Lease.
Nothing contained herein shall be deemed or construed to mean
that Landlord is precluded from placing mortgages or ground
leases on the Property in the future (subject to Section 14.15
hereof).
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to
any assignment by Landlord of Landlord's interest in this Lease,
or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a mortgage
on property which includes the Premises, Tenant agrees that the
execution thereof by Landlord, and the acceptance thereof by the
holder of such mortgage, shall never be treated as an assumption
by such holder of any of the obligations of Landlord hereunder
unless such holder shall, by notice sent to Tenant, specifically
otherwise elect and that, except as aforesaid, such holder shall
be treated as having assumed Landlord's obligations hereunder
only upon
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foreclosure of such holder's mortgage and the taking of
possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest in
the Property by a purchaser which, simultaneously therewith,
leases Landlord's entire interest in the Property back to the
seller thereof be treated as an assumption by operation of law or
otherwise, of Landlord's obligations hereunder, but Tenant shall
look solely to such seller-lessee, and its successors from time
to time in title, for performance of Landlord's obligations
hereunder. For all purposes, such seller-lessee, and its
successors in title, shall be the Landlord hereunder unless and
until Landlord's position shall have been assumed by such
purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in the
event of any transfer of title to the Property by Landlord, the
transferring Landlord shall thereafter be entirely freed and
relieved from the performance and observance of all covenants and
obligations hereunder which are to be performed or observed from
and after (but not before) the date of such transfer.
14.7 RULES AND REGULATIONS. Tenant shall abide by rules and
regulations set forth in Exhibit C attached hereto and those
rules and regulations from time to time established by Landlord,
it being agreed that such rules and regulations will be
established and applied by Landlord in a non-discriminatory
fashion, such that all rules and regulations shall be generally
applicable to other tenants of the Building of similar nature to
the Tenant named herein. Landlord agrees to use reasonable
efforts to insure that any such rules and regulations are
uniformly enforced, but Landlord shall not be liable to Tenant
for violation of the same by any other tenant or occupant of the
Building, or persons having business with them. In the event that
there shall be any conflict between such rules and regulations
and the provisions of this Lease, the provisions of this Lease
shall control.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums
under this Lease designated or payable as an additional charge,
Landlord shall have the same rights and remedies as Landlord has
hereunder for failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of
this Lease, or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby,
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and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by Law.
14.10 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the
terms hereof shall be binding upon and shall inure to the benefit
of the successors and assigns, respectively, of Landlord and
Tenant and, if Tenant shall be an individual, upon and to his
heirs, executors, administrators, successors and assigns. The
reference contained to successors and assigns of Tenant is not
intended to constitute a consent to assignment by Tenant, but has
reference only to those instances in which Landlord may later
give consent to a particular assignment as required by those
provisions of Article VI hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but each party
hereto agrees, on the request of the other, to execute a
so-called notice of lease in form recordable and complying with
applicable law and reasonably satisfactory to Landlord's
attorneys. In no event shall such document set forth the rent or
other charges payable by Tenant under this Lease; and any such
document shall expressly state that it is executed pursuant to
the provisions contained in this Lease, and is not intended to
vary the terms and conditions of this Lease.
14.12 NOTICES. Whenever, by the terms of this Lease, notices, consents
or approvals shall or may by given either to Landlord or to
Tenant, such notices, consents or approvals shall be in writing
and shall be sent by (i) nationally recognized overnight delivery
service with signature required on delivery or (ii) registered or
certified mail, return receipt requested, postage prepaid:
If intended for Landlord, addressed to Landlord at:
Landlord's Original Address
Attn: Property Manager
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
with a copy to:
▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Director, Asset Management
Teachers Insurance and Annuity Association of America
as Asset Manager on behalf of TIAA Realty, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(or to such other address as may from time to time hereafter be
designated by Landlord by like notice).
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If intended for Tenant, addressed to Tenant at Tenant's Original
Address until the Commencement Date and thereafter to the
Premises Attn: Corporate Counsel (or to such other address or
addresses as may from time to time hereafter be designated by
Tenant by like notice.)
All such notices shall be effective when delivered if sent by
overnight courier and if by registered or certified mail, when
delivered or upon the first date of attempted delivery by the
postal service, if delivery is rejected or not accepted.
14.13 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to
lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the
execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings
between Landlord and Tenant are incorporated herein and this
Lease expressly supersedes any proposals or other written
documents relating hereto. This Lease may be modified or altered
only by written agreement between Landlord and Tenant, and no act
or omission of any employee or agent of Landlord shall alter,
change or modify any of the provisions hereof.
14.14 PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience and reference only, and the words
contained therein shall in no way be held to explain, modify,
amplify or aid in the interpretation, construction, or meaning of
the provisions of this Lease.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be
subordinate to any mortgage or ground lease from time to time
encumbering the Premises, whether executed and delivered prior to
or subsequent to the date of this Lease, if the holder of such
mortgage or ground lease shall so elect. If this Lease is
subordinate to any mortgage or ground lease and the holder
thereof (or successor) shall succeed to the interest of Landlord,
at the election of such holder (or successor) Tenant shall attorn
to such holder and this Lease shall continue in full force and
effect between such holder (or successor) and Tenant. Tenant
agrees to execute such reasonable instruments of subordination,
non-disturbance and attornment in confirmation of the foregoing
agreement as such holder may reasonably request.
Notwithstanding anything to the contrary contained in this
Section 14.15 or in Section 14.6 of this Lease, Tenant shall not
be required to subordinate this Lease to any mortgage or the lien
of any mortgage or sale and a leaseback, nor shall the
subordination provided herein be
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self-operative unless the holder of such mortgage or the Lessor
under such ground lease, as the case may be, shall enter into an
Agreement with Tenant, recordable in form, to the effect that, in
the event of foreclosure of, or similar action taken under, such
mortgage or ground lease, Tenant's possession of the Premises
under this Lease shall not be terminated or disturbed by such
mortgage holder or ground lessor or anyone claiming under such
mortgage holder or a ground lessor, as the case may be, so long
as Tenant shall not be in default under this Lease. The form of
any such Agreement shall be the form usually and customarily
required by any such mortgagee or ground lessor so long as such
mortgagee or ground lessor complies with the requirements of this
Section 14.15.
14.16 STATUS REPORT. Recognizing that both parties may find it
necessary to establish to third parties, such as accountants,
prospective purchasers, banks, mortgagees, ground lessors, or the
like, the then current status of performance hereunder, either
party, on the request of the other made from time to time, will
promptly furnish to Landlord, or the holder of any mortgage or
ground lease encumbering the Premises, or to Tenant, as the case
may be, a statement of the status of any reasonable matter
pertaining to this Lease, including, without limitation,
acknowledgment that (or the extent to which) each party is in
compliance with its obligations under the terms of this Lease.
14.17 SECURITY DEPOSIT/LETTER OF CREDIT. Tenant shall deposit with
Landlord a Letter of Credit in the amount and form hereafter
described (the "Letter of Credit") to be held and, as applicable,
presented and drawn upon and the proceeds thereof retained and
applied by Landlord as security for the faithful payment,
performance and observance by Tenant of the terms, covenants,
provisions, conditions and agreements of Tenant under and
pursuant to this Lease. It is agreed and understood that in the
event of the occurrence of a Default of Tenant, Landlord may
present for payment and draw upon the Letter of Credit and
Landlord may use, apply or retain the whole or any part of the
amounts available to be drawn under the Letter of Credit to the
extent required for the payment of any Basic Rent, Escalation
Charges, additional rent or any other sum which Landlord may
expend or be entitled to the payment of by reason of any Default
of Tenant or any failure of tenant to pay, perform or observe any
term, covenant, condition or provision of this Lease, including
without limitation, any late charges, interest payments or any
damages or deficiency in the re-letting of the Premises whether
said damages or deficiency occurred before or after summary
proceedings or other re-entry by Landlord.
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If Landlord shall present, draw upon and apply or retain all or
any portion of the amounts evidenced by the Letter of Credit,
Tenant shall immediately replenish and reinstate the amount
available to be drawn under the Letter of Credit or cause a
substitute Letter of Credit in the form and amount required by
this Lease to be re-issued so that at all times during the Term
of this Lease, Landlord shall be entitled to draw upon the entire
dollar amount of the Letter of Credit in the amounts from time to
time required hereunder notwithstanding any prior presentation
and draw thereon.
The Letter of Credit must at all times be an "irrevocable clean"
commercial Letter of Credit in the amount required by this Lease
and payable through a bank or other financial institution having
and maintaining an office at which draws may occur in New York
City, New York, acceptable to Landlord in Landlord's sole
discretion. In addition, the Letter of Credit shall be payable
solely to the benefit of the Landlord from time to time under
this Lease and shall be automatically renewable and, upon the
direction of Landlord, transferable to and payable for the
benefit of any successor Landlord under the Lease. The Letter of
Credit (or substitutes thereof consistent with the terms hereof)
shall be and remain presentable and payable for the time period
beginning on the date of this Lease through and including the
date which is the last to occur of (i) the date which is 60 days
after the last day of the Term of this Lease or (ii) the date
which is 60 days after the date of delivery of the entire
Premises to Landlord in accordance with the terms and provisions
of this Lease or (iii) 60 days after the last of Tenant's
monetary obligations to Landlord under this Lease have been
satisfied in full. Tenant shall bear all costs and expenses in
connection with procuring the Letter of Credit and maintaining it
in full force and effect for the time periods required hereunder.
In the event of a sale or other transfer of the Building, Tenant
shall, at its sole cost and expense, cause the Letter of Credit,
in the form required hereunder, to be issued to and for the
benefit of such transferee or purchaser, as designated by
Landlord.
The Landlord from time to time under this Lease, shall be
entitled to receive 60 days prior written notice of any
cancellation of the Letter of Credit for any reason and the
Letter of Credit shall not be cancellable unless and until
Landlord shall have received such sixty (60) day advance written
notice. Upon (i) receiving notice of cancellation of the Letter
of Credit or (ii) failure of Tenant to deliver to Landlord a
substitute Letter of Credit on or before the date which is 30
days prior to any renewal date and whether or not Tenant shall
then be in default in the payment, performance or observance of
any term, covenant or provision of this Lease, Landlord shall be
entitled to
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present, draw upon and retain the entire amount of the Letter of
Credit and upon so doing, Landlord shall be entitled to hold,
apply and retain the proceeds of such payment as if it were a
cash security deposit under this Lease to be applied against
Defaults of Tenant from time to time arising under this Lease.
It is agreed and understood that any failure of Tenant to
perform, observe or comply with any term of provision contained
in this Section 14.17 to be performed or observed by Tenant shall
entitle Landlord to the same rights and remedies under this
Lease, as a failure by Tenant to pay Basic Rent as and when same
shall be due and payable.
Initially, the amount of the Letter of Credit shall be in the
amount stated in Section 1.2 hereof. Thereafter, beginning as of
the first day of the fourth lease year and provided that no
Default of Tenant shall exist and be continuing, the amount of
the Letter of Credit shall be reduced to $161,692.88.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, (but shall not
be required) upon not less than thirty (30) days notice to Tenant
and opportunity to cure within such thirty (30) day period
(except in the case of emergency when no advance notice nor
opportunity to cure shall be required), to pay such sums or to do
any act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of
Tenant to perform any of the provisions of this Lease, and in the
event of the exercise of such right by Landlord, Tenant agrees to
pay to Landlord forthwith upon demand all such sums, together
with interest thereon at a rate equal to 3% over the prime rate
in effect from time to time at BankBoston or such other banking
institution in Boston, MA as designated from time to time by
Landlord (but in no event greater than the maximum rate of
interest permitted by law), as an additional charge. Any payment
of Basic Rent, Escalation Charges or other sums payable hereunder
not paid when due shall, at the option of Landlord, bear interest
at a rate equal to 3% over the prime rate in effect from time to
time at BankBoston (but in no event greater than the maximum rate
of interest permitted by law) from the due date thereof and shall
be payable forthwith on demand by Landlord, as an additional
charge.
14.19 HOLDING OVER. Any holding over by Tenant after the expiration or
earlier termination of the Term of this Lease shall be treated as
a daily tenancy at sufferance at a rate equal to the then fair
rental value of the Premises but in no event less than 150% of
the sum of (i) Basic Rent and (ii) Escalation Charges in effect
on the expiration or termination date. Tenant shall also pay to
Landlord all damages, direct and/or indirect (including
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any loss of a tenant or rental income), sustained by reason of
any such holding over. Otherwise, such holding over shall be on
the terms and conditions set forth in this Lease as far as
applicable. The Landlord may, but shall not be required to, and
only on written notice to Tenant after the expiration of the Term
hereof, elect to treat such holding over as an extension of the
Term of this Lease for a period of up to one (1) year, as
designated by Landlord, such extension to be on the terms and
conditions set forth in this Section 14.19.
14.20 WAIVER OF SUBROGATION. Landlord and Tenant mutually agree that
any property damage insurance carried by either shall provide for
the waiver by the insurance carrier of any right of subrogation
against the other, and they further mutually agree that, with
respect to any damage to property, the loss from which is covered
by insurance then being carried by them, respectively, the one
carrying such insurance and suffering such loss releases the
other of and from any and all claims with respect to such loss to
the extent of the insurance proceeds paid with respect thereto.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination
of the Term of this Lease, Tenant shall peaceably quit and
surrender to Landlord the Premises in neat and clean condition
and in good order, condition and repair, together with all
alterations, additions and improvements which may have been made
or installed in, on or to the Premises prior to or during the
Term of this Lease, excepting only ordinary wear and use and
damage by fire or other casualty for which, under other
provisions of this Lease, Tenant has no responsibility of repair
and restoration. Tenant shall remove all of Tenant's Removable
Property and telecommunications cabling and, to the extent
specified by Landlord at the time Landlord grants its consent to
the making and installation thereof, all alterations and
additions made by Tenant and all partitions wholly within the
Premises made by Tenant after the Commencement Date and any
aspect of Landlord's Work with respect to which Landlord requires
removal by notice to Tenant at the time of approval of Tenant's
Plans; and shall repair any damage to the Premises or the
Building caused by such removal. Any Tenant's Removable Property
which shall remain in the Building or on the Premises after the
expiration or termination of the Term of this Lease shall be
deemed conclusively to have been abandoned, and either may be
retained by Landlord as its property or may be disposed of in
such manner as Landlord may see fit, at Tenant's sole cost and
expense.
14.22 SUBSTITUTE SPACE. Intentionally Omitted.
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14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt
with no broker in connection with the consummation of this Lease
other than Leggat ▇▇▇▇▇▇ Properties LLC (the "Broker") and, in
the event of any brokerage claims against Landlord predicated
upon prior dealings with Tenant, Tenant agrees to defend the same
and indemnify Landlord against any such claim (except any claim
by the Broker which shall be paid by Landlord pursuant to its
specific agreements with Broker).
Landlord warrants and represents that Landlord has dealt with no
broker in connection with the consummation of this Lease other
than Leggat ▇▇▇▇▇▇ Properties LLC (the "Broker") and, in the
event of any brokerage claims against Tenant predicated upon
prior dealings with Landlord, Landlord agrees to defend the same
and indemnify Landlord against any such claim.
14.24 SPECIAL TAXATION PROVISIONS. Landlord shall have the right at any
time and from time to time, to unilaterally amend the provisions
of this Lease if Landlord is advised by its Counsel that all or
any portion of the monies paid by Tenant to Landlord hereunder
are, or may be deemed to be, unrelated business income within the
meaning of the United States Internal Revenue Code, or any
regulation issued thereunder, and Tenant agrees that it will
execute all documents or instruments necessary to effect such
amendment or amendments, provided that no such amendment shall
result in Tenant having to pay in the aggregate more money on
account of its occupancy of the demised premises under the
provisions of this Lease as so amended and provided further, that
no such amendment or amendments shall result in Tenant receiving
under the provisions of this Lease less services than it is
entitled to receive nor services of a lesser quality. Anything
contained in the foregoing provisions of this Lease (including,
without limitation, Article VI hereof) to the contrary
notwithstanding, neither Tenant nor any other person having an
interest in the possession, use, occupancy or utilization of the
Premises, shall enter into any lease, sublease, license,
concession or other agreement for use, occupancy, utilization of
space in the Premises which provides for rental or other payment
for such use, occupancy or utilization of space, in whole or in
part, on the net income or profits derived by any person from the
Premises leased, used, occupied or utilized (other than an amount
based on a fixed percentage or percentage of receipts for sales)
and any such recorded lease, sublease, license, concession or
other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use,
occupancy or utilization of any part of the Premises.
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14.25 HAZARDOUS MATERIALS. (a) Tenant shall not (either with or without
negligence) cause or permit the escape, disposal, release or
threat of release of any biologically or chemically active or
other Hazardous Materials (as said term is hereafter defined) on,
in, upon or under the Property or the Premises. Tenant shall not
allow the generation, storage, use or disposal of such Hazardous
Materials in any manner not sanctioned by law or by the highest
standards prevailing in the industry for the generation, storage,
use and disposal of such Hazardous Materials, nor allow to be
brought into the Property any such Hazardous Materials except for
use in the ordinary course of Tenant's business, and then only
after written notice is given to Landlord of the identity of such
Hazardous Materials. If any governmental agency shall ever
require testing to ascertain whether or not there has been any
release of Hazardous Materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as
additional charges but only if such requirement is the result of
the acts or omissions of Tenant. In addition, Tenant shall
execute reasonable affidavits, representations and the like, from
time to time, at Landlord's reasonable request concerning
Tenant's best knowledge and belief regarding the presence of
Hazardous Materials on the Premises.
The Tenant shall, at its own expense, remove, clean up, remedy
and dispose of (in compliance with all applicable laws, rules and
regulations) all Hazardous Materials generated or released by the
Tenant or its officers, directors, employees, contractors,
servants or agents during the Term of this Lease (or during such
term as the Tenant is in occupancy or possession of any part of
the Premises, the Building or the Property) at or from the
Premises, the Building or the Property in compliance with all
Environmental Laws (as said term is hereafter defined) and
further, shall remove, clean up, remedy and dispose of all
Hazardous Materials located at, upon, under, within or in the
Premises, the Building or the Property generated by or resulting
from Tenant's operations, activities or processes during the term
of this Lease (or such other periods of time as the Tenant may be
in occupancy or in possession of the Premises or any portion of
the Property or Building), in compliance with all Environmental
Laws. In performing its obligations hereunder, the Tenant shall
use best efforts to avoid interference with the use and enjoyment
of the Building and the Property by other tenants and occupants
thereof. The provisions hereof shall survive expiration or
termination of this Lease.
The Tenant shall indemnify, defend and save harmless the
Landlord, the Manager and their respective officers, directors
and shareholders from and against all loss, costs, damages,
claims, proceedings, demands, liabilities,
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penalties, fines and expenses, including without limitation,
reasonable fees and costs for attorneys' fees, consultants' fees,
litigation costs and clean-up costs asserted against or incurred
by the Landlord, the Manager or their respective officers,
directors and shareholders, at any time caused by (i) any release
or threat of release of any Hazardous Materials at, in, upon,
under or from the Premises, the Building or the Property where
such release or threat of release caused by the acts or omissions
of the Tenant or its agents, servants, employees or contractors
or (ii) any violation or of any Environmental Laws governing
Hazardous Materials where such violation is caused by the acts or
omissions of the Tenant or its agents, servants, employees or
contractors. The indemnities set forth in this Section shall
survive expiration or termination of this Lease.
In addition to the requirements set forth above, the Tenant
shall, within ten (10) days of receipt, provide to the Landlord
copies of any inspection or other reports, correspondence,
documentation, orders, citations, notices, directives, or suits
from or by any governmental authority or insurer regarding
non-compliance with or potential or actual violation of
Environmental Laws. Subject to the requirements of Section 11.1
hereof, the Landlord hereby expressly reserves the right to enter
the Premises and all other portions of the Building and the
Property at reasonable times in order to perform inspections and
testing of the air, soil and groundwater for the presence or
existence of Hazardous Materials.
It is agreed and understood that in the event that Hazardous
Materials are discovered on the Premises during the course of
performance of Landlord's Work, then, unless such Hazardous
Material is present due to the acts of Tenant or Tenant's agents,
employees or contractors, (i) the Landlord shall remove same to
the extent required by law at Landlord's sole expense and (ii)
any delays in the Substantial Completion Date and the
Construction Completion Date shall not be deemed to be the result
of Tenant's Delay for purposes of Section 4.4 of this Lease.
As used herein, the term "Hazardous Materials" shall mean and
include, without limitation, any material or substance which is
(i) petroleum, (ii) asbestos, (iii) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution
Control Act, 33 U.S.C. SS 1251 et seq. (33 U.S.C. SS 1321) or
listed in SS 307 of the Federal Water Pollution Control Act (33
U.S.C. SS 1317), (iv) defined as a "hazardous waste" pursuant to
Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. SS 6901 et seq. (42 U.S.C. SS 6903), (v) defined as a
"hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and
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Liability Act, 42 U.S.C. SS 9601 et seq. (42 U.S.C. SS 9601), as
amended and regulations promulgated thereunder, or (vi) defined
as "oil" or a "hazardous waste", a "hazardous substance", a
"hazardous material" or a "toxic material" under any other law,
rule or regulation applicable to the Property, including, without
limitation, Chapter 21E of the Massachusetts General Laws, as
amended and the regulations promulgated thereunder. As used
herein, the term "Environmental Laws" shall mean, without
limitation, each and every law, rule, order, statute or
regulation described above in this Section, together with (i) any
amendments thereto, or regulations promulgated thereunder and
(ii) any other laws pertaining to the protection of the
environment or governing the use, release, storage, generation or
disposal of Hazardous Materials, whether now existing or
hereafter enacted or promulgated.
(b) In the event that (i) Hazardous Materials are discovered on
the Premises and (ii) the presence or existence of such Hazardous
Materials is not the result of the acts or omissions of Tenant or
Tenant's agents, servants, employees or contractors (iii) as the
direct result of the presence of such Hazardous Materials, a
governmental authority either determining that the Premises are
unsafe and untenantable or ordering that Tenant cease operating
its business and vacate all or any portion of the Premises (an
"Order") and (iv) Tenant shall have provided Landlord with
written notice of the Determination or Order, then Basic Rent and
Escalation Charges payable by Tenant shall ▇▇▇▇▇ proportionately
for the period in which, by reason of the presence or existence
of such Hazardous Materials and such Order, there is substantial
interference with Tenant's use of the Premises, having regard to
the extent to which Tenant may be required to discontinue
Tenant's use of all or a portion of the Premises, but such
abatement or reduction shall end if and when Landlord shall have
completed the Remediation (as hereafter defined). Upon
satisfaction of the conditions specified in (i)-(iv) hereof, in
no event shall Landlord have any liability for damages to Tenant
for inconvenience, annoyance, or interruption of business arising
from the presence or existence of such Hazardous Materials.
Upon receipt of the written notice required by the first
paragraph of this Section 14.25(b), Landlord shall thereafter use
due diligence to promptly remove, ▇▇▇▇▇, remediate or clean-up
such Hazardous Materials to the extent required by applicable law
and the requirements of governmental agencies of competent
jurisdiction to the extent that Tenant shall be permitted to
re-enter the portion of the Premises which is the subject of the
Order (the "Remediation"). If, for any reason, such Remediation
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shall not be substantially completed within 240 days from the
date of Landlord's receipt of written notice of the Order from
Tenant (which period may be extended for such periods of time as
Landlord is prevented from proceeding with or completing such
Remediation for any cause beyond Landlord's reasonable control),
Tenant shall have the right to terminate this Lease by giving
notice to Landlord thereof within thirty (30) days after the
expiration of such period (as so extended). Upon the giving of
such notice, this Lease shall cease and come to an end without
further liability or obligation on the part of either party
unless, within such 30-day period, Landlord substantially
completes such Remediation. Such right of termination shall be
Tenant's sole and exclusive remedy at law or in equity for
Landlord's failure so to complete such Remediation.
14.26 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of
Massachusetts, as the same may from time to time exist.
14.27 OPTIONS TO EXTEND. (a) On or before the date which is not less
than fourteen (14) full calendar months prior to expiration of
(a) the Initial Term in the case of Tenant's option with respect
to the First Extension Period (as hereafter defined) and (b) as
applicable, the First Extension Period in the case of Tenant's
option with respect to the Second Extension Period (as hereafter
defined). Tenant shall have the right to provide Landlord with a
written request (a "Rent Request") requesting that Landlord
provide Tenant with written notice (a "Rent Designation") of the
Basic Rent Landlord projects to be the Basic Rent for the
Premises during the applicable Extension Period for which a Rent
Request is made. Landlord shall provide its Rent Designation to
Tenant within 21 days after its receipt of the Rent Request from
Tenant. Tenant's right to request a Rent Designation from
Landlord is merely for purposes of discussion and information
only and neither Landlord nor Tenant shall be bound in any manner
thereby. The mere act of Tenant giving Landlord a Rent Request
and Landlord providing a Rent Designation shall create no
liability or obligation on the part of Landlord or Tenant with
respect to any Extension Period and Landlord and Tenant shall
only be bound with respect to any Extension Period if Tenant
shall timely and properly exercise its option with respect to the
applicable Extension Period as hereafter set forth.
(b) Whether or not Tenant shall give Landlord a Rent Request
pursuant to the foregoing provisions of Section 14.27(a), Tenant
shall nevertheless have the right and option, which said option
and right shall not be severed from this Lease or separately
assigned, mortgaged or transferred, to extend the Initial Term
for two (2)
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additional consecutive periods of five (5) years each
(hereinafter respectively referred to as the "First Extension
Period" and the "Second Extension Period" and sometimes
generically as an "Extension Period"), provided that (a) Tenant
shall give Landlord notice (an "Option Notice") of Tenant's
exercise of each such option at least twelve full calendar months
prior to the expiration of (i) the Initial Term in the case of
the option with respect to the First Extension Period and (ii)
the First Extension Period in the case of the option with respect
to the Second Extension Period and (b) no Default of Tenant
(after expiration of applicable notice and cure periods, if any)
shall exist at the time of giving each applicable notice (c) the
original Tenant named in this Lease (or an assignee or sublessee
permitted in accordance with the provisions of Section 6.1(b) of
this Lease) is itself occupying the entire Premises both at the
time of giving the applicable notice and at the time of
commencement of each respective Extension Period and (d) Tenant
shall fail to give Landlord a Revocation Notice (as hereafter
defined) within ten (10) days after the Tenant's receipt of the
determination of Fair Market Rental Value as hereafter provided
(if Fair Market Rental Value for the applicable Extension is
determined by the appraisal process hereafter described). Except
for the amount of Basic Rent (which is to be determined as
hereinafter provided), all the terms, covenants, conditions,
provisions and agreements in the Lease contained shall be
applicable to the additional periods through which the Term of
this Lease shall be extended as aforesaid, except that (a) there
shall be no further options to extend the Term of this Lease
beyond the Second Extension Period, no Elevator Up-Grade, no
Lobby Renovation Work or Lobby Allowance nor shall Landlord be
obligated to make or pay for any improvements to the Premises nor
pay any Allowance or any inducement payments of any kind or
nature and (b) Base Taxes, Base Operating Expenses and Base
Utility Expenses shall be adjusted as hereafter set forth. If
Tenant shall give an Option Notice of its exercise of an option
to extend in the manner and within the time period provided
aforesaid and provided that Tenant shall not thereafter give
Landlord a Revocation Notice within the time and manner herein
specified, the Term of this Lease shall be extended without the
requirement of any further attention on the part of either
Landlord or Tenant. Landlord hereby reserves the right,
exercisable by Landlord in its sole discretion, to waive (in
writing) any condition precedent set forth in clauses (b) or (c)
above.
Upon the written request of Landlord, Tenant shall enter into an
amendment of this Lease reflecting the extension of the Term of
this Lease and the Basic Rent payable by Tenant during the
Extension Period. Base Taxes for each respective Extension Period
shall be the Taxes for the Tax
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Year in which the first day of the applicable Extension Period
shall fall. Likewise, the Base Operating Expenses and Base
Utility Expenses for each respective Extension Period shall be
the Operating Expenses and Utility Expenses, respectively for the
Operating Year in which the first day of the applicable Extension
Period shall fall.
If Tenant shall fail to exercise any such option as aforesaid as
and when specified herein, Tenant shall have no right to extend
the Term of this Lease, time being of the essence of the
foregoing provisions. Failure of Tenant to timely exercise its
option with respect to the First Extension Period shall terminate
Tenant's rights with respect to the option for the Second
Extension Period unless waived in writing by Landlord (in
Landlord's discretion). Any termination of this Lease Agreement
shall terminate the rights hereby granted Tenant.
The Basic Rent payable for each twelve (12) month period during
each Extension Period shall be the Fair Market Rental Value (as
said term is hereinafter defined) calculated in each case as of
commencement of the applicable Extension Period but in no event
less than the Basic Rent per annum plus Escalation Charges
payable for and with respect to the 12 calendar month period
immediately preceding commencement of the applicable Extension
Period.
Dispute as to Fair Market Value. Landlord shall initially
designate the Fair Market Rental Value and shall furnish data in
support of such designation by written notice to Tenant within
thirty (30) days after receipt of Tenant's Option Notice
exercising the option for the applicable Extension Period. Such
designation by Landlord need not be in the amount specified in
any Rent Designation previously given by Landlord pursuant to
Section 14.27(a) above and shall be determined by Landlord in
Landlord's sole and absolute discretion. If Tenant disagrees with
Landlord's designation of the Fair Market Rental Value, Tenant
shall have the right, by written notice (a "Call for Rent
Determination") given to Landlord within ten (10) days after
Tenant has been notified of Landlord's designation pursuant to
this paragraph, to submit such Fair Market Rental Value to be
determined as follows: The Landlord and Tenant shall each appoint
a Qualified Officer (as said term is hereinafter defined) and
shall designate the Qualified Officer so appointed by notice to
the other party within 15 days after the Tenant's Call for Rent
Determination. The two Qualified Officers so appointed shall meet
within ten (10) days after both Qualified Officers are designated
in an attempt to agree upon the Fair Market Rental Value for the
applicable Extension Period and if, within fifteen (15) days
after both Qualified Officers are designated, the two Qualified
Officers do not agree upon the Fair Market Rental
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Value, then each Qualified Officer shall, not later than thirty
(30) days after both Qualified Officers have been designated,
deliver a written report (the "Individual Rent Report") to both
the Landlord and Tenant setting forth the Fair Market Rental
Value as determined by each Qualified Officer. The two Qualified
Officers shall promptly appoint a third Qualified Officer and
shall designate such third Qualified Officer by notice to
Landlord and Tenant within ten (10) days after delivery of their
Individual Rent Reports. The cost and expenses of each Qualified
Officer appointed separately by Tenant and Landlord shall be
borne by the party who appointed the Qualified Officer. The cost
and expenses of the third Qualified Officer shall be shared
equally by Tenant and Landlord. The third Qualified Officer shall
designate and select one of the designations of the Fair Market
Rental Value set forth in the Individual Rent Report submitted by
one of the two Qualified Officers designated by Landlord and
Tenant as the Fair Market Rental Value. The Fair Market Rental
Value of the subject space determined in accordance with the
provisions of this Section shall be binding and conclusive on
Tenant and Landlord. IN ANY AND ALL EVENTS, THE FAIR MARKET
RENTAL VALUE SHALL BE DETERMINED NO LATER THAN THE DATE WHICH IS
SEVEN FULL CALENDAR MONTHS PRIOR TO THE FIRST DAY OF THE
APPLICABLE EXTENSION PERIOD FOR WHICH IT IS BEING DETERMINED.
Upon determination of the Fair Market Rental Value as aforesaid
(unless such determination shall be made by mutual agreement of
Landlord and Tenant outside of the Qualified Officer process
described above), Tenant shall have a period of ten (10) days
within which to give Landlord written notice of its revocation of
its Option Notice with respect to the applicable Extension Period
(such written notice of revocation being a "Revocation Notice"),
time being of the essence. In the event that Tenant shall fail or
neglect to give Landlord a Revocation Notice within the time and
manner specified above, Tenant shall be deemed to have accepted
the determination of Fair Market Rental value as determined as
set forth above and the Term of this Lease shall be extended to
include the applicable Extension Period at the Basic Rent so
determined as the Fair Market Rental Value.
In the event that Tenant shall give Landlord a Revocation Notice
within the time and manner hereinabove set forth, time being of
the essence, then, Tenant shall be deemed to have revoked its
Option Notice and the Term of this Lease shall not be extended to
include the applicable Extension Period for which it was given
but the Term of this Lease shall be temporarily extended for an
additional period of nine (9) full calendar months (the "Short
Term Extension") beginning as of the day immediately following
the last day of (a) the Initial Term (in the case of a Revocation
Notice
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with respect to an Option Notice for the First Extension Period)
or (b) the last day of the First Extension Period (in the case of
a Revocation Notice with respect to an Option Notice for the
Second Extension Period).
Basic Rent per rentable square foot per annum payable during the
Short Term Extension shall be at an annual rate equal to the sum
of (i) the Basic Rent per square foot per annum payable during
the last twelve months, as applicable, of (a) the Initial Term
(in the case of a Short Term Extension resulting from a
Revocation Notice relating to the First Extension Period) and (b)
the First Extension Period (in the case of a Short Term Extension
resulting from a Revocation Notice relating to the Second
Extension Period plus (ii) $1.00 per rentable square foot (for
example, if the Basic Rent for such 12 month period were $23.00
per rentable square foot per annum, the Basic Rent payable during
the subject Short Term Extension would be $24.00 ($23.00 + $1.00
= $24.00). Except for the amount of Basic Rent which shall be as
set forth above, all of the terms and provisions of the Lease
shall apply during the Short Term Extension, except that there
shall be no option to extend beyond the last day of the Short
Term Extension. Accordingly, the provisions of Section 14.19 of
this Lease shall apply to any holding over beyond expiration of
the Short Term Extension as if the last day of the Short Term
Extension were the last day of the Term of this Lease.
As used herein, the term "Qualified Officer" shall mean any
disinterested and independent person (i) who is a senior officer
of a major nationally recognized leasing brokerage firm having an
office in the Boston Metro Area(ii) who has not less than ten
(10) years experience in (a) leasing office space in the
Edgewater Office Park or other similar first class suburban
office parks in the suburban Boston Office Market or (b)
appraising and valuing properties of the general location, type
and character as the Building in other similar first class office
parks in the suburban Boston Office Market. Notwithstanding the
foregoing, the Landlord may not designate its then leasing broker
as the "Qualified Officer" to be designated by Landlord. If
either party shall fail to appoint its Qualified Officer within
the period specified above (such party referred to hereinafter as
the "Failing Party"), the other party may serve notice on the
Failing Party requiring the Failing Party to appoint its
Qualified Officer within ten (10) days of the giving of such
notice and if the Failing Party shall not respond by appointment
of its Qualified Officer within said ten (10) day period, then
the Qualified Officer appointed by the other party shall be the
sole Qualified Officer whose determination of Fair Market Rental
Value shall be binding and conclusive upon Tenant and Landlord.
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14.28 RIGHT OF FIRST OFFER. In the event that during the Initial Term or
any applicable Extension Period, all or any portion of the
Building shall become "available for leasing" (as hereafter
defined) and provided that no Default of Tenant shall exist and be
continuing then, prior to leasing such space to a third party,
Landlord shall first offer (the "Offer") to lease all of the such
available space to Tenant upon terms and conditions specified by
Landlord in the Offer. The Term of this Lease as it relates to
such space set forth in the Offer shall be for a period equal to
the then unexpired balance of the Term of this Lease (inclusive of
any Extension Periods).
If (a) within ten (10) Business Days after Landlord provides the
Offer to Tenant, Tenant does not unconditionally accept the Offer
as to all of such space described in the Offer in writing or (b)
if Tenant accepts the Offer as aforesaid but does not execute and
deliver a final fully executed Amendment to this Lease Agreement
in form and substance satisfactory to Landlord and Tenant within
thirty (30) days after acceptance of the Offer as aforesaid,
Landlord shall be free to rent all or any part of such space to
any party upon terms and conditions determined by Landlord in its
sole discretion, and Tenant's Right of First Offer shall
terminate as to all of the space described in such Offer (but
only as to the space described in such Offer).
As used herein, the term "available for leasing" shall mean that
Landlord has determined that such space is or will become vacant
as and when determined by Landlord in Landlord's sole discretion
and (a) no other tenant of the Building has any rights of first
offer or expansion rights or other rights of any kind with
respect to such space and/or (b) the then existing tenant in such
space shall (i) not exercise its option to extend or renew its
lease or (ii) fail to negotiate an extension or renewal of its
lease absent a right of extension or renewal in its Lease or any
failure to timely exercise an option or right that existed in its
lease.
In no event shall Landlord provide Tenant with an Offer more than
twelve (12) months prior to the date Landlord anticipates that
such space shall become vacant.
14.29 SATELLITE BUSINESS TERMINAL SYSTEM. (a) To the extent permitted
by and subject to all applicable laws, rules, ordinances and
codes of the Town of Wakefield and any other local, state or
federal agency having jurisdiction and the provisions of this
Section 14.29, Landlord will not unreasonably withhold or delay
its consent to the installation of one Satellite Dish Antenna
System on the roof of the Building comprised of one (1) Satellite
Dish with related components necessary to connect the same to
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the Premises (the "Satellite System"). If Landlord consents to
the installation of the Satellite System, Tenant shall, prior to
commencing to install the Satellite System, comply with the
provisions of Section 5.2 hereof and all such work shall be
performed subject to and in compliance with the provisions of
Section 5.2 of this Lease except that notwithstanding anything
contained in Section 5.2 to the contrary, Tenant shall first
submit to Landlord detailed plans and specifications and such
other information as to the Satellite System as Landlord shall
require regardless of whether or not any permit or governmental
approval is required for the installation of the same. Such
Satellite System shall be used solely by Tenant in the course and
conduct of its business for the Permitted Use and Tenant shall
not grant others the right to use same nor shall Tenant use such
Satellite System to provide voice or data telecommunications
network service to Tenant's customers or clients. Tenant shall be
responsible for all costs and expenses associated with the
installation, maintenance and repair of said Satellite System and
the condition of the area of the roof on which it is installed.
All work relating to the Satellite System shall, at Tenant's
expense, be coordinated with Landlord's roofing contractor so as
not to affect any warranty for the Building's roof. The location
of any such Satellite System and the manner of its attachment to
the roof shall be subject to the approval of Landlord which shall
not be unreasonably withheld or delayed. Without limitation of
any other right of Landlord hereunder, Landlord may condition its
consent to installation of the Satellite System upon a
requirement that Tenant "Screen" the dish (and component parts to
be located on the roof) from public view as reasonably required
by Landlord in its sole discretion. Upon expiration or earlier
termination of the Lease, Tenant shall remove such Satellite
System together with any appurtenant equipment from the Building
and repair any damage to the roof and/or the Building caused by
the installation and/or removal of such Satellite System. Tenant
hereby acknowledges and agrees that Landlord makes no
representation or warranty as to whether or not installation of a
rooftop Satellite System is permitted in accordance with
applicable laws of the Town of Wakefield and/or any other state,
local or federal agency. Tenant hereby acknowledges and agrees
that responsibility for compliance of law with respect to the
installation, maintenance and operation of such Satellite System
shall be the sole and exclusive responsibility of the Tenant.
Notwithstanding anything to the contrary in this Lease, Tenant
shall be solely responsible for any damages or the cost of any
repairs to or replacements of the Building or the roof resulting
from the installation, removal or maintenance of the Satellite
System.
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(b) Tenant shall, at Tenant's sole cost and expense, defend,
indemnify, save and hold harmless Landlord and the Manager and
their respective licensees, servants, agents, employees, members,
shareholders, officers, directors, partners, affiliated entities
and contractors, from and against any loss, damage, claim of
damage, liability or expense, (including attorney fees) to or for
any person or property, whether based on contract, tort,
negligence or otherwise, arising directly or indirectly out of or
in connection with the Satellite System or the operation, use,
repair and maintenance thereof, whatever the cause or in any
litigation or other proceedings by or against Tenant or Landlord,
or any person, and/or entity described above in this Section (b)
with respect to the Satellite System unless said loss, damage,
claim of damage, liability or expense is caused by Landlord or
Landlord's representatives, employees or contractors.
(c) Tenant shall bear the cost of any damage to the Building,
Property and/or the roof of the Building, or any increase in the
Operating Expenses or Real Estate Taxes that may be incurred or
assessed against the Property as a result of the installation of
the Satellite System.
(d) Tenant's installation, maintenance and operation of the
Satellite System as defined herein shall not interfere with
Landlord's operation of the Building, cause radio or television
interference to any tenant of the Building, or cause signal
interference to any communication equipment operating on the
Property or in the Office Park. In the event any such
interference is caused by Tenant, Tenant shall, at its own
expense, provide and install any filter, isolators and other
equipment necessary to eliminate such interference or if unable
to eliminate such interference, Tenant shall remove the Satellite
System from the Property and cease operation of the Satellite
System.
(e) Tenant will be responsible for all marking and lighting
requirements of the Federal Aviation Administration ("FAA") or
the Federal Communications Commissions ("FCC") specifically
associated with the construction, maintenance, or operation of
the Satellite System on the Property. Tenant shall indemnify and
hold Landlord and the Manager and their respective agents,
servants, employees, contractors, officers, directors,
shareholders, members and partners harmless from and against any
fines or other liabilities caused by Tenant's failure to comply
with such requirements unless said loss, damage, claim of damage,
liability or expense is caused by Landlord or Landlord's
representatives, employees or contractors. Should Tenant be cited
by either the FCC or FAA because the Satellite System is not in
compliance and should Tenant fail to cure the conditions of
noncompliance within the time frame allowed by the citing agency,
Landlord upon notice to
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Tenant may proceed to cure the conditions of noncompliance at the
sole cost and expense of Tenant.
(f) To the extent that Landlord shall determine in its sole but
reasonable judgment that the roof of the Building does not have
sufficient space or area for the Satellite System or if
installation of the Satellite System and related wiring and
facilities will result in interference with the Landlords ability
to provide services to other tenants or occupants of the Property
or the Office Park, Landlord shall have the right to deny its
consent to the installation of the Satellite System or cause
Tenant (at Tenant's sole cost and expense) to remove the
Satellite System and related wiring and facilities from the
Building.
14.30 ELEVATOR UPGRADE. Upon execution and delivery of this Lease,
Landlord shall commence its planned elevator upgrade (the
"Elevator Up-grade"). The nature and scope of the Elevator
Upgrade shall be as determined by Landlord in its sole and
absolute discretion. Landlord shall not be required to expend
more than $7,000.00 in connection with the Elevator Up-grade and
the scope of such work shall be determined by Landlord in its
sole and absolute discretion. The Commencement Date shall not be
delayed due to Landlord's failure to complete the Elevator
Up-grade on or before the Commencement Date. For purposes of
calculating the amount to be expended by Landlord pursuant to
this Section 14.30 the cost of such Elevator Up-Grade shall be
deemed to include all costs and expenses of every kind and nature
sustained or incurred by Landlord in connection with the Elevator
Up-Grade including, without limitation, the cost of design,
labor, work, materials, fees, licenses, permits and governmental
approvals necessary to complete the Elevator Up-Grade.
14.31 LOBBY UPGRADE. Tenant has expressed a desire to Landlord to have
the Building lobby renovated areas and common areas further
renovated. Landlord and Tenant have not agreed on the scope and
content of such work. Landlord has agreed to expend up to
$100,000.00 (the "Lobby Allowance") toward the cost of lobby
renovations to be performed by Landlord and approved by Landlord
in Landlord's sole and absolute discretion (the "Lobby
Renovations"). It is agreed and understood that Landlord shall
have the right to approve any Lobby Renovations requested by
Tenant in its sole and absolute discretion (the "Lobby Renovation
Work"). Landlord's failure to consent or agree to any Lobby
Renovation shall have no affect on the validity of this Lease.
Notwithstanding the foregoing, Landlord may condition its consent
to any Lobby Renovation Work upon a condition that Tenant restore
such area to its condition prior to the performance of such Lobby
Renovation Work. As and to the extent that Landlord shall, in its
sole and absolute discretion, approve Lobby Renovation Work and
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there are not sufficient funds remaining in the Lobby Allowance
in order to perform same, Landlord shall not be required to
perform same unless and until Tenant shall deposit with Landlord
amounts sufficient to fully reimburse Landlord for the cost of
such Lobby Renovation Work to the extent that the cost of such
Lobby Renovation Work would exceed the amount of any dollars
remaining from the Lobby Allowance. The Landlord shall use good
faith efforts to promptly complete Lobby Renovation Work once
mutually agreeable plans and specifications are agreed to by
Landlord and Tenant and such Lobby Renovation Work may occur
after the Commencement Date and shall not delay the occurrence of
the Commencement Date in the event that they are not completed
prior to the Commencement Date. Any portion of the Lobby
Allowance not used to perform Lobby Renovation Work shall be
applied toward the Total Cost of Landlord's Work pursuant to
Section 4.3 (any then remaining balance of the Lobby Allowance
not so applied shall be retained by Landlord). Landlord may
condition its approval to any Lobby Renovation Work (or any
portion thereof) upon a requirement that Tenant, at Tenant's sole
cost and expense, remove same upon expiration or earlier
termination of the Term of this Lease repairing any damage to the
Building and restoring the lobby areas so disturbed to their
condition prior to the performance of the Lobby Renovation Work.
For purposes of this Section 14.31, the cost of Lobby Renovation
Work shall be deemed to include all costs and expenses of every
kind and nature sustained or incurred by Landlord in connection
with the planning, design and completion of the Lobby Renovation
Work including, without limitation, architectural and engineering
fees and the cost of all labor, work, materials, fees, licenses,
permits and governmental approvals needed to design, plan and
perform the Lobby Renovation Work.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in multiple
copies, each to be considered an original hereof, as of the date first set forth
above.
TENANT:
Cyrk, Inc.
Dated: 12/14/99 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------- -------------------------------------------
Its: CO CEO & PRESIDENT
------------------------------------------
LANDLORD:
TIAA REALTY, INC., a Delaware
corporation, as Landlord
By: Teachers Insurance and Annuity
Association of America,
a New York corporation
Its: Authorized Representative
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Its: Director
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FIRST AMENDMENT TO LEASE
This First Amendment to Lease is dated as of this ____ day of December,
1999 by and between TIAA Realty, Inc. (the "Landlord") and Cyrk, Inc. (the
"Tenant").
WHEREAS, Landlord and Tenant are the Landlord and Tenant respectively
under and pursuant to that certain standard Lease Agreement dated as of July 29,
1999;
WHEREAS, as a result of certain delays of the Tenant in executing the
Lease and providing the Landlord with Tenant's Plans, the Landlord and Tenant
have agreed, subject to entering into this First Amendment, to amend the Lease
to call for a Commencement Date of March 1, 2000, notwithstanding that
Landlord's Work may not be performed or completed on or before March 1, 2000.
NOW, THEREFORE, the Landlord and the Tenant, each intending to be
legally bound, hereby agree as follows:
1. Commencement Date. Notwithstanding anything contained in the Lease
including, without limitation, Section 4.1 of the Lease to the contrary, the
Commencement Date under the Lease is hereby agreed to be March 1, 2000
notwithstanding whether or not the Landlord's Work, the Elevator Up-grade or the
Lobby Renovation Work may or may not be completed on or before March 1, 2000.
Tenant hereby agrees to commence payment of Basic Rent, Escalation Charges and
other sums and charges payable under the Lease on March 1, 2000 regardless of
whether or not Landlord's Work, the Elevator Up-grade or the Lobby Renovation
Work is completed or the Premises is then "ready for occupancy".
2. Preparation of the Premises. Article IV of the Lease is hereby
amended in the following respects:
(a) The first sentence of Section 4.1 is hereby deleted and the
following sentences are hereby inserted in its place and
stead:
"The Commencement Date shall be March 1, 2000 notwithstanding
that Landlord's Work will not be substantially completed on
such date. As used in this Lease, the term "Construction
Completion Date" shall mean August 1, 2000".
(b) The definition of the term "Tenant Plan Delivery Date" set
forth in Section 4.2 shall be amended to be "March 29, 2000".
(c) The definition of the term "Outside Plan Date" as set forth in
Section 4.2 shall be deemed amended to be "April 29, 2000".
(d) Section 4.2(e) of the Lease is hereby deleted and the
following new Section 4.2(e) shall be inserted in its place
and stead:
"(e) If the Substantial Completion Date has not
occurred by the Construction Completion Date (as it
may be extended pursuant to Section 4.4) then,
beginning on the day immediately following the
Construction Completion Date (as such date may be
extended pursuant to Section 4.4), Basic Rent and
Escalation Charges otherwise payable under this Lease
shall ▇▇▇▇▇ day for day thereafter until the date
that the Premises is "ready for occupancy" to the
extent required by Section 4.2(b) above, on which
date the abatement of Basic Rent and Escalation
Charges set forth herein shall terminate; and such
right of abatement of Basic Rent and Escalation
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Charges shall be Tenant's sole and exclusive remedy
at law and in equity for Landlord's failure so to
complete Landlord's Work within such time. In the
event that Tenant shall occupy all or any portion of
the Premises for the Permitted Use (as opposed to
entry of the Premises for the purpose of "Early
Entry" as defined in Section 4.1 above) during such
period of abatement, the abatement of Basic Rent and
Escalation Charges provided herein shall be
appropriately adjusted given the nature and extent of
Tenant's use of the Premises during such period."
3. Generally. Except as herein modified, all the terms, covenants,
provisions and agreements contained in the Lease remain in full force and effect
and are hereby ratified and affirmed. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Lease.
Witness our hands and seals on the day and year first above written.
LANDLORD:
TIAA Realty, Inc., a Delaware
corporation, as Landlord
By: Teachers Insurance and Annuity
Association of America, a
New York corporation
Its: Authorized Representative
DATED: By:
--------------------------- -----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Its: Director
TENANT:
Cyrk, Inc.
DATED: By:
--------------------------- -----------------------------------------
Its:
----------------------------------------
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Exhibit A
Page 1 of 2
[GRAPHIC - FLOORPLAN]
75
Exhibit A
Page 2 of 2
[GRAPHIC - FLOORPLAN]
76
EXHIBIT A-1
That certain Parcel of Land in Wakefield, Middlesex County, Massachusetts shown
as Lot 55 on a Plan entitled "Subdivision Plan of Land in Wakefield, MA" (Scale
1 in. = 200 feet) dated March 11, 1985 (Revised March 28, 1985) by ▇▇▇▇▇
Engineering, Inc. filed with the Land Registration Office as Plan 27190W.
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EXHIBIT B
Tenant Plan Requirements
Attached to and made part of Lease
dated as of July __, 1999
1. Dimensional floor plan indicating location of partitions and doors (details
required of partition and door types).
2. Location of standard electrical convenience outlets and telephone outlets.
3. Location and specification of special electrical outlets; e.g. copiers,
computers, etc.
4. Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located indicating
fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting fixtures,
speakers, diffusers, sprinkler heads, etc.
6. Location and specifications of floor covering, paint or paneling with paint
colors referenced to standard color system.
7. Finish schedule plan indicating wall covering, paint, or paneling with paint
colors referenced to standard color system.
8. Details and specifications of special millwork, glass partitions, rolling
doors and grilles, blackboards, shelves, etc.
9. Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latchsets or locksets, closures, stops, and any
special items such as thresholds, soundproofing, etc. Keying schedule is
required.
10. Locations and verified dimensions of all built-in equipment (file cabinets,
lockers, plan files, etc.).
11. All necessary mechanical, plumbing and electrical and sprinkler drawings to
complete the Premises in accordance with Tenant's Plans and tie same into
Building systems.
12. All drawings to be uniform size (36" x 48") and shall incorporate the
standard project electrical and plumbing symbols and be at a scale of 1/8" = 1"
or larger.
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13. Location and details of special floor areas whose loading exceeds any of the
following:
50 pounds per square foot live load
20 pounds per square foot partition load
TOTAL = 70 pounds per square foot
14. Location of any special soundproofing requirements.
15. Existence of any extraordinary HVAC requirements necessitating perforation
of structural members.
16. Location and details of any interior stairs, blended deck or other special
requirements affecting the structure.
17. Any necessary increase in the design loads for the building electrical
system and air conditioning system.
18. Indicate the location and identity and electrical requirements of any
equipment exceeding the electrical service allowed pursuant to Section 7.5(b).
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EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, paved and/or landscaped areas shall not be obstructed
or encumbered by Tenant or used for any purpose other than ingress and egress to
and from the demised premises.
2. Except as otherwise expressly permitted by this Lease, no sign,
advertisement, notice or other lettering shall be exhibited, inscribed, painted
or affixed by Tenant on any part of the demised premises or Building so as to be
visible from outside the demised premises without the prior written consent of
Landlord, which will not be unreasonably withheld or delayed. In the event of
any violation of this paragraph, Landlord may remove same without any liability,
and may charge the expense incurred in such removal to Tenant, as additional
rent.
3. No awnings, curtains, blinds, shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
demised premises or any outside wall of the Building without the prior written
consent of Landlord, which will not be unreasonably withheld or delayed so long
as said so long as said awning or other item conforms to similar items installed
in or upon other portions of the Building. Such awnings, curtains, blinds,
shades, screens or other projections must be of a quality, type, design and
color, and attached in the manner, approved by Landlord, which approval shall
not be unreasonably withheld or delayed. If any portion of the demised premises
which is not used for office purposes shall have windows, such windows shall be
equipped with curtains, blinds or shades approved by Landlord, and said
curtains, blinds or shades shall be kept closed at all times.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids, chemicals, process water,
cooling water or like substances shall be deposited therein. Said plumbing
fixtures and the plumbing system of the Building shall be used only for
discharge of so-called sanitary waste. All damage resulting from any misuse of
said fixtures and/or plumbing system by Tenant or anyone claiming under Tenant
shall be borne by Tenant.
5. Tenant must, upon the termination of its tenancy, return to Landlord
all locks, cylinders and keys to the demised premises and any offices therein.
6. Tenant shall, at Tenant's expense, provide artificial light and
electric current for the employees of Landlord and/or Landlord's contractors
while making repairs or alterations in the demised premises, except during the
initial performance of Landlord's Work.
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7. Tenant shall not make, or permit to be made, any unseemly or
disturbing odors or noises or disturb or interfere with occupants of the
Building or those having business with them, whether by use of any musical
instrument, radio, machine, or in any other way.
8. Canvassing, soliciting, and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
9. Tenant shall keep the demised premises free at all time of pests,
rodents and other vermin, and Tenant shall keep all trash and rubbish stored in
containers.
10. Landlord reserves the right to rescind, alter, waive and/or
establish any reasonable rules and regulations of uniform application to all
tenants which, in its judgment, are necessary, desirable or proper for its best
interests and the best interests of the occupants of the Building.
12. The access roads, driveways, entrances and exits shall not be
obstructed or encumbered by Tenant or used for any purpose other than ingress
and egress.
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EXHIBIT D
APPROVED GENERAL CONTRACTORS
1. ▇. ▇▇▇▇▇▇ CONTRACTORS
2. INTEGRATED BUILDERS
3. STRUCTURETONE
4. ▇▇▇▇▇▇, SPD
5. SHAWMUT DESIGN
6. ▇▇▇▇▇ CONSTRUCTION
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EXHIBIT E
(ITEMS INCLUDED IN BUILDING/
UTILITY COSTS AND OPERATING EXPENSES)
A. Without limitation, Building Energy/Utility Costs shall include:
Costs for electricity, fuel, oil, gas, steam, water and sewer use
charges and other utilities supplied to the Property and not paid for
directly by tenants. Building Energy/Utility Costs shall not include
Tenant Electricity Expenses paid directly by Tenants.
B. Without limitation, Operating Expenses shall include:
1. All reasonable expenses incurred by Landlord or Landlord's
representatives which shall be directly related to employment
of personnel, including amounts incurred for wages, salaries
and other compensation for services, payroll, social security,
unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization,
retirement plans and group insurance, uniforms and working
clothes and the cleaning thereof, and reasonable expenses
imposed on Landlord or Landlord's agents in connection with
the operation, repair, maintenance, cleaning, management and
protection of the Property, and its mechanical systems
including, without limitation, day and night supervisors,
property manager, accountants, bookkeepers, janitors,
carpenters, engineers, mechanics, electricians and plumbers
and personnel engaged in supervision of any of the persons
mentioned above: provided that, if any such employee is also
employed on other property of Landlord, such compensation
shall be suitably allocated by Landlord among the Property and
such other properties.
2. The cost of services, materials and supplies furnished or used
in the operation, repair, maintenance, cleaning, management
and protection of the Property including, without limitation,
fees and assessments, if any, imposed upon Landlord, or
charged to the Property, by any governmental agency or
authority or other duly authorized private or public entity on
account of public safety services, transit, housing, police,
fire, sanitation or other services or purported benefits.
3. The cost of replacements for tools and other similar equipment
used in the repair, maintenance, cleaning and protection of
the Property, provided that, in the case of any such equipment
used jointly on other property of
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Landlord, such costs shall be allocated by Landlord among the
Property and such other properties.
4. Premiums for insurance against damage or loss to the Building
from such hazards as shall from time to time be generally
required by institutional mortgagees in the Boston area for
similar properties, including, but not by way of limitation,
insurance covering loss of rent attributable to any such
hazards, and public liability insurance.
5. Where the Property is managed by Landlord or an affiliate of
Landlord, a sum equal to the amounts customarily charged by
management firms in the Boston area for similar properties,
but in no event more than six percent (6%) of gross annual
income, whether or not actually paid, or where managed by
other than Landlord or an affiliate thereof, the amounts
accrued for management, together with, in either case, amounts
accrued for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in
connection with services rendered for securing or renewing
leases and for matters not related to the normal
administration and operation of the Building.
6. If, during the Term of this Lease, Landlord shall make a
capital expenditure (a) with the express or intended purpose
of reducing Operating Expenses or making the Building operate
more efficiently (regardless of whether or not such reductions
or efficiencies are actually realized) or (b) for the purpose
of complying with any applicable Requirements not in effect as
of the Commencement Date and in either case, the total cost of
which shall not be properly includable in Operating Expenses
for the Operating Year in which it was made, there shall
nevertheless be included in such Operating Expenses for the
Operating Year in which it was made and in Operating Expenses
for each succeeding Operating Year, an annual charge-off of
such capital expenditure. The annual charge-off shall be
determined by dividing the original capital expenditure plus
an interest factor, reasonably determined by Landlord, as
being the interest rate then being charged for long-term
mortgages, by institutional lenders on like properties within
the locality in which the Building is located, by the number
of years of useful life of the capital expenditure, and the
useful life shall be determined reasonably by Landlord in
accordance with generally accepted accounting principles and
practices in effect at the time of making such expenditure.
Notwithstanding, the foregoing, to the contrary, a capital
expenditure resulting from (a) repaving of the parking areas
or (b) structural improvements or repairs to the Building
shall be excluded from Operating Expenses. Without limitation
of any other provision of
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this paragraph 6 "Structural Repairs or Improvements" shall
not be deemed to include repairs or improvements to the
Building Roof which shall be included in Operating Expenses on
an annual charge-off basis as set forth above.
7. Betterment assessments provided the same are apportioned
equally over the longest period permitted by law.
8. Amounts paid to independent contractors for services,
materials and supplies furnished for the operation, repair,
maintenance, cleaning and protection of the Property.
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EXHIBIT F
(Cleaning Specifications)
A. Premises
Daily on Business Days except Saturdays:
1. Empty all waste receptacles and ash trays and remove
waste material from the Premises.
2. Sweep and dust mop all uncarpeted areas using a
dust-treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all
horizontal surfaces including furniture, office
equipment, window ▇▇▇▇▇, door ledges, chair rails and
counter tops, within normal reach.
5. Wash clean all water fountains.
6. Upon completion of cleaning, all lights will be
turned off and doors locked, leaving the Premises in
an orderly condition.
7. Tenant entry door glass.
8. Interior restrooms.
Quarterly:
Render high dusting not reached in daily cleaning to include:
1. Dusting all pictures, frames, charts, graphs and
similar wall hangings.
2. Dusting all vertical surfaces, such as walls,
partitions, doors and ducts.
3. Dusting of all pipes, ducts and high moldings.
B. LAVATORIES:
Daily on Business Days except Saturdays:
1. Sweep and damp mop floors.
2. Clean all mirrors, powder shelves, dispensers and
receptacles, bright work, flushometers, pipes and
toilet seat hinges.
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3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal
receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel
dispensers, vending sanitary dispensers, material to
be furnished by Landlord.
9. A sanitizing solution will be used in all lavatory
cleaning.
Monthly:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
C. MAIN LOBBY, ELEVATORS, BUILDING EXTERIOR AND CORRIDORS
Daily on Business Days except Saturdays:
1. Sweep and wash all floors.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe down
walls and doors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding building
entrance doors.
Monthly:
All resilient tile floors in public areas to be treated
equivalent to spray buffing.
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D. WINDOW CLEANING: Windows of exterior walls will be washed on the outside once
every six months and on the inside once every six months, weather permitting.
E. Tenant requiring services in excess of ▇▇▇▇ described above shall request
same through Landlord, at Tenant's expense.