STANDARD FORM COMMERCIAL LEASE
THIS INSTRUMENT IS A LEASE, dated as of 5/2, 1997, in which the LESSOR and
LESSEE are the parties hereinafter named, and which relates to space in the
property (the "Property") known as Lincoln Plaza and located at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇. The parties to this
instrument hereby agree with each other as follow:
1. BASIC LEASE
PROVISIONS: The following set forth basic data and, where appropriate,
constitute definitions of the terms hereinafter listed.
A. BASIC DATA.
LESSOR: Lincoln Plaza Limited Partnership, a Massachusetts
limited partnership.
LESSOR'S Original Address: c/o Capital Properties, Inc., ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSEE: Silicon Valley Internet Partners, a California
corporation.
LESSEE'S Original Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
PERMANENT PREMISES
Permanent Premises Basic Rent:
31/98 - 3/15/99 For year one, the sum of $480,000 ($24 per
square foot of Premises Rentable Area) per
annum as the same may be adjusted and/or
abated.
3/15/00 For year two, the sum of $500,000 ($25 per
square foot of Premises Rentable Area) per
annum as the same may be adjusted and/or
abated.
3/15/01 For year three, the sum of $520,000 ($26 per
square foot of Premises Rentable Area) per
annum as the same may be adjusted and/or
abated.
5/19/02 For year four, the sum of $540,000 ($27 per
square foot of Premises Rentable Area) per
annum as the same may be adjusted and/or
abated.
3/15/03 For year five, the sum of $560,000 ($28 per
square foot of Premises Rentable Area) per
annum as the same may be adjusted and/or
abated.
Permanent Premises Rentable Area: Agreed to be 20,000 square
feel located on the second floor of the Building.
Permanent Premises Escalation Factor: 12.53%, as computed in
accordance with the Escalation Factor Computation for the
building located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
Permanent Premises Construction Completion Date: Ninety (90)
days after the current tenant(s) vacate the premises,
estimated to be between January 1, 1998 and March 1, 1998,
but not later than March 30, 1998.
INITIAL PREMISES
Initial Premises Basic Rent: At the rate of $107,993 ($12.75
per square foot of Premises Rentable Area) per annum as the
same may be adjusted and/or abated.
Initial Premises Rentable Area: Agreed to be 8,470 square
feet located on the sixth floor of ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇.
INITIAL TERM Approximately five years and ten months commencing
on the Initial Premises Commencement Date and expiring at the close of
the day immediately preceding the fifth anniversary of the Permanent
Premises Commencement Date, except that if the Permanent Premises
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
shall fall.
Permitted Uses: General office use.
LEASE SECURITY:
At lease Execution - LESSEE shall provide LESSOR
with a Letter of Credit in the
amount of $150,000.
Thirty (30) days prior The Letter of Credit shall be
to the Commencement increased to $614,500 (base
of construction for the portion) plus the cost of the tenant
Permanent Premises. improvements paid by LESSOR at
the request of LESSEE in excess
of $25/psf.
At six (6) months after The base portion of the Letter of
the Permanent Premises Credit may be reduced to
Commencement Date $574,000 *
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At thirteen (13) months The base portion of the Letter of
after the Permanent Credit may be reduced to
Premises Commencement $460,000 *
Date
At twenty-five (25) The base portion of the Letter of
months after the Credit may be reduced to
Permanent Premises $155,000 *
Commencement Date
At thirty-seven (37) The base portion of the Letter of
months after the Credit may be reduced to
Permanent Premises $93,333 *
Commencement Date
* Contingent upon no monetary default from the Initial
Premises Commencement Date through this reduction date. The
portion in excess of the base portion of the Letter of
Credit shall be reduced one third at thirteen months after
the Permanent Premises Commencement Date one third at twenty
five months after the Permanent Premises Commencement Date
and one third at thirty seven months after the Permanent
Premises Commencement Date.
Prepaid Rent: On the Permanent Premises Commencement Date, LESSEE
shall prepay the first three months rent.
Base Operating Expenses: The actual Operating Expenses for the
calendar year commencing January 1, 1998 and ending December 31, 1998,
as adjusted for 95% building occupancy.
Base Taxes: The actual Taxes for the Tax Year commencing July 1,
1997 and ending June 30, 1998.
Broker: Whittier Partners, Inc. & ▇▇▇▇▇▇▇▇ & Grew
B. ADDITIONAL DEFINITIONS.
Agent: Capital Properties, Inc., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Business Days: All days except Saturday, Sunday, New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas
Day (and the following Monday when any such day occurs on Sunday).
Unless specifically referred to herein as Business Days, all
references in this Lease to "days" shall mean calendar days. There
shall be no cleaning services provided on President's Day, Patriot's
Day, Columbus Day or Veterans' day.
Initial Premises: As described in Exhibit A1 attached hereto.
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Permanent Premises: As described in Exhibit A2 attached hereto.
Building Access: LESSEE shall have access to the building
together with the necessary utilities three hundred and sixty five
days per year, twenty four hours a day.
Initial Premises Commencement Date: Not later than June 1, 1997
or upon substantial completion of LESSOR'S Work.
Permanent Premises Commencement Date: The Permanent Premises
Substantial Completion Date, as defined in Section 26B of this Lease,
approximately first quarter, 1998, not later than May 1, 1998.
Escalation Factor Computation: Premises Rentable Area divided by
95% of building rentable area.
Extended Term: As defined in Section 34.
First Offered Space: As defined in Section 35.
Guarantor: None.
Initial Public Liability Insurance: $1,000,000.00 per occurrence
(combined single limit) for property damage, personal injury or death.
LESSOR'S Architectural Allowance: $1.25 per square foot of the
Permanent Premises Rentable Area, as defined in Section 26A.
LESSOR'S Tenant Improvement Allowance: $25 per square foot of the
Permanent Premises Rentable Area, as defined in Section 37.
LESSOR'S Work for Initial Premises: As defined in Section 26.
LESSOR'S Work for Permanent Premises: As defined in Section 26.
Initial Premises: A portion of the Property as shown on Exhibit A
attached hereto.
Permanent Premises: A portion of the Property as shown on Exhibit
A.
Parking: As defined in Section 36.
LESSOR'S Notice Address: LESSOR'S Original Address.
LESSEE'S Notice Address: Initial Premises, then Permanent
Premises.
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2. PREMISES A) PERMANENT PREMISES (From the Permanent Premises Commencement
Date to the end of the Term):
A portion of the Building owned by LESSOR consisting of
approximately 20,000 SQUARE FEET OF RENTABLE AREA ON THE SECOND
FLOOR OF THE BUILDING LOCATED AT ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ AND
SUBSTANTIALLY KNOWN AS SUITE 201 on the plan attached hereto as
"Exhibit A" (the "Premises") together with the right to use in
common, with others entitled thereto, the hallways, stairways,
and elevators, necessary for access to said Premises, and
lavatories nearest thereto.
B) INITIAL PREMISES (From the Initial Premises Commencement Date
to the day before the Permanent Premises Commencement Date):
A portion of the Building owned by LESSOR consisting of
approximately 8,470 SQUARE FEET OF RENTABLE AREA ON THE SIXTH
FLOOR OF THE BUILDING LOCATED AT ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
AND SUBSTANTIALLY KNOWN AS SUITE 601 on the plan attached hereto
as "Exhibit A" (the "Premises") together with the right to use in
common, with others entitled thereto, the hallways, stairways,
and elevators, necessary for access to said Premises, and
lavatories nearest thereto.
3. TERM The term of this lease shall be for approximately five years and
ten months commencing on the Initial Premises Commencement Date
and ending sixty months after the Permanent Premises Commencement
Date.
4. BASIC A) PERMANENT PREMISES
RENT
The LESSEE shall pay to the LESSOR rent at the rate specified in
Section 1 of this Lease, payable in advance on the first day of
each month, commencing upon occupancy of the Permanent Premises
without deduction or set off. LESSEE shall pay the first three
months rent on the Permanent Premises Commencement Date.
B) INITIAL PREMISES
The LESSEE shall pay to the LESSOR rent at the rate of $107,993
per year, payable in advance on the first day of each month
commencing approximately June 1, 1997 without deduction or set
off in monthly installments of $8,999.38.
5. SECURITY Upon the execution of this lease, the LESSEE shall provide LESSOR
DEPOSIT a Letter of Credit in accordance with Section I of this lease.
The Letter of Credit shall be held as a security for the LESSEE'S
performance as herein provided and may be drawn in the event that
LESSEE is in default beyond any applicable cure period, in
accordance with Section 19 of this Lease.
6. ADDITIONAL A. TAX. If, in any tax year, the real estate taxes on the land
RENT and buildings, of which the Premises are a part, are in excess of
the amount of the Base Taxes, as finally abated (hereinafter
called the "Base Year"), LESSEE will pay to LESSOR, as additional
rent hereunder, when and as designated within thirty
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(30) days after notice in writing by LESSOR, the amount of the
excess multiplied by the Escalation Factor. If the LESSOR obtains
an abatement of any such excess real estate tax, a proportionate
share of such abatement, less the reasonable fees and costs
incurred in obtaining the same, if any, shall be refunded to the
LESSEE.
B. OPERATING. If, in any calendar year, the Operating Expenses
for the Property of which the Premises are a part, are in excess
of the amount of the Base Operating Expenses, LESSEE will pay to
LESSOR, as additional rent hereunder, when and as designated
within thirty (30) days after notice in writing by LESSOR, the
amount of the excess multiplied by the Escalation Factor.
Operating expenses are defined for the purposes of this agreement
as: The aggregate costs or expenses reasonably incurred by LESSOR
with respect to the operation, administration, cleaning, repair,
maintenance and management of the premises including, without
limitation, those items designated as "included" in Exhibit C and
also excluding those items designated as "Excluded" on Exhibit C
attached hereto. Any such accounting by LESSOR shall be binding
and conclusive upon LESSEE unless within sixty (60) days after
the giving by LESSOR of such accounting, LESSEE shall notify
LESSOR that LESSEE disputes the correctness of such accounting,
specifying the particular respects in which the accounting is
claimed to be incorrect.
C. There shall be no Additional Rent due for the period LESSEE
occupies the Initial Premises prior to the Permanent Premises
Commencement Date.
7. UTILITIES The LESSEE shall pay, as they become due, all bills for
electricity. The LESSOR agrees to provide all other utility
service and to furnish reasonably hot and cold water and
reasonable heat and air conditioning to the Premises, the
hallways, stairways, elevators, and lavatories during normal
building business hours on regular business days of the heating
and air conditioning seasons of each year, to furnish elevator
service and to light passageways and stairways at all times, and
to furnish such cleaning service as is customary in similar
buildings in said city or town as set forth in Exhibit E attached
hereto, all subject to interruption due to any accident, to the
making of repairs, alterations, or improvements, to labor
difficulties, to trouble in obtaining fuel, electricity, service,
or supplies from the sources from which they are usually obtained
for said building, or to any cause beyond the LESSOR's control,
excluding financial incapability.
At LESSEE'S request and at LESSEE'S expense (if it is the
Building's policy at the time of such request) LESSOR shall
provide HVAC services to the Premises for whatever times LESSEE
so requests.
LESSOR shall have no obligation to provide utilities or equipment
other than the utilities and equipment within the premises as of
the commencement date of this lease. In the event LESSEE requires
additional utilities or equipment, the installation and
maintenance thereof shall be the LESSEE'S sole obligation,
provided that such installation shall be subject to the written
consent of the LESSOR.
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There shall be no charge for electricity or other utilities in
the Initial Premises while LESSEE occupies said Premises prior to
the Permanent Premises Commencement Date.
8. USE OF The LESSEE agrees to use the Premises in a manner consistent with
LEASED the nature of the building and consistent with the other LESSEES
PREMISES in the building. The LESSEE shall use the Premises only for the
purpose of listed in Section 1 of this Lease.
9. COMPLIANCE The LESSEE acknowledges that no trade or occupation shall be
WITH LAWS conducted in the Premises or use made thereof which will be
unlawful, improper, noisy or offensive, or contrary to any law or
any municipal by-law or ordinance in force in the city or town in
which the premises are situated. LESSEE agrees to comply with all
such laws. LESSEE makes no representation that uses contemplated
by the LESSEE are permitted by law. LESSOR shall comply with all
other laws affecting the Premises or the building at which they
are a part and assumes the obligation of any modifications so
required.
10. FIRE The LESSEE shall not permit any use of the Premises which will
INSURANCE make voidable any insurance on the property of which the Premises
are a part, or on the contents of said property or which shall be
contrary to any law or regulation from time to time established
by the New England Fire Insurance Rating Association, or any
similar body, succeeding to its powers. The LESSEE shall not use
the Premises for any hazardous use which will cause an extra
insurance premium. However, in the event that LESSEE does so, the
LESSEE shall, on demand, reimburse the LESSOR, and all other
tenants, all extra insurance premiums caused by the LESSEE'S use
of the Premises.
11. MAINTEN- The LESSEE agrees to maintain the Premises, in good condition,
ANCE OBLI- reasonable wear and tear and damage by fire and other casualty
GATIONS only excepted, and whenever necessary, to replace plate glass and
other glass therein.
A. LESSEE'S OBLIGATIONS. At the Permanent Premises Commencement
Date the Permanent Premises shall be in good order and the glass
whole. The LESSEE shall not permit the Premises to be overloaded,
damaged, stripped, or defaced, nor suffer any waste. LESSEE shall
obtain written consent of LESSOR before erecting any sign on the
premises. LESSOR shall provide signage on the lobby directory and
building standard signage on LESSEE'S floor. And, if any other
same size LESSEE on the second or higher floor in the Building
has the right to affix a sign on the outside of the Building,
LESSEE shall have the same right. This does not include banners
or any type of non-permanent signage. The LESSEE shall keep and
maintain the Premises in good order and repair at its own
expense. The LESSOR shall at LESSEE'S expense and upon LESSEE'S
request, furnish and install all replacement lamps, lighting
tubes, bulbs and ballasts which may be required in the Premises
during the terms hereof.
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▇. ▇▇▇▇▇▇'▇ OBLIGATIONS. The LESSOR agrees to maintain the
structure of the building and the portion of the mechanical and
other base building systems which are a part of the building
system and do not serve the LESSEE exclusively, of which the
Premises are a part in the same condition as it is at the
commencement of the Term or as it may be put in during the Term
of this Lease, reasonable wear and tear, damage by fire and other
casualty only excepted, unless such maintenance is required
because of the LESSEE or those for whose conduct the LESSEE is
legally responsible. LESSOR shall maintain the heat pump units.
LESSOR shall never be liable for any failure to make repairs
unless LESSEE has given notice to LESSOR of the need to make such
repairs, and LESSOR has failed to commence to make such repairs
within a reasonable time after receipt of such notice, or fails
to proceed with reasonable diligence to complete such repairs.
12.ADDITIONS & The LESSEE shall not make structural alterations or additions to
ALTERATIONS the Premises or that will materially adversely affect the
building's systems, but may make non-structural alterations
provided the LESSOR consents thereto in writing, which consent
shall not be unreasonably withheld or delayed. All such allowed
alterations shall be at LESSEE'S expense and shall be in quality
at least equal to the present construction. LESSEE shall not
permit any mechanics' liens, or similar liens, to remain upon the
Premises for labor and material furnished to LESSEE or claimed to
have been furnished to LESSEE in connection with work of any
character performed or claimed to have been performed at the
direction of LESSEE and shall cause any such lien to be released
of record or bonded over forthwith without cost to LESSOR. Any
alterations or improvements made by the LESSEE shall become the
property of he LESSOR at the termination of occupancy as provided
herein.
13. ASSIGNMENT The LESSEE shall not assign or sublet the whole or any part of
& SUBLEAS- the Premises without LESSOR'S prior written consent, which
ING consent shall not be unreasonably withheld, delayed or denied.
Notwithstanding such consent, LESSEE shall remain liable to
LESSOR for the payment of all rent and for the full performance
of the covenants and conditions of this lease. If SUBLESSEE is
paying rent at an amount greater than outlined in Section 4 of
this agreement, the amount less any expenses incurred in
subleasing with the remises, over shall be due to LESSOR. LESSEE
may not sublease to other tenants in the building, active
prospects or tenants who have toured the building within sixty
(60) days prior to being introduced to the proposed sublease
space. LESSEE may not lease Premises at rates below their current
rent or the current asking rent for the building, whichever is
higher with out prior written permission from LESSOR. Any
sublessee must conform to the building's current office uses.
No LESSOR consent shall be required for an assignment or sublease
to any business organization directly or indirectly controlling
or controlled by LESSEE or under common control with LESSEE, or
to any successor by merger, consolidation or purchase of all or
substantially all of LESSEE'S assets, or in the event of the sale
of LESSEE'S capital stock, through any public exchange.
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14. SUBORDINA- This Lease shall be subject and subordinate to any and all
TION mortgages, deeds of trust and other instruments in the nature of
a mortgage, now or at any time hereafter, a lien or liens on the
property of which the Premises are a part (and the LESSEE shall,
when requested, promptly execute and deliver such written
instruments as shall be necessary to show the subordination of
this lease to said mortgages, deeds of trust or other such
instruments in the nature of a mortgage). LESSOR shall secure a
non-disturbance agreement from LESSOR'S Mortgagee within thirty
(30) days after the Lease is executed by both parties. LESSOR
shall use best efforts to secure a non-disturbance agreement from
all future Mortgagees, at LESSEE'S request and at LESSEE'S
expense, which shall only include the Mortgagees attorney's fees.
In the event that LESSEE fails or refuses to execute same, LESSOR
may do so as LESSEE'S Attorney-in-Fact.
15. LESSOR'S The LESSOR or agents of the LESSOR may, at reasonable times and
ACCESS except for in an emergency, consistently with LESSEE'S
established security procedures, enter to view the Premises and
may remove placards and signs not approved and affixed as herein
provided, and make repairs and alterations as LESSOR should elect
or needs to do and may show the Premises to others.
16. INDEMNIFI- LESSEE shall save LESSOR harmless, and shall exonerate and
CATION AND indemnify LESSOR, from and against any and all claims,
LIABILITY liabilities or penalties asserted by or on behalf of any person,
firm, corporation or public authority:
(i) on account of or based upon any injury to person, or loss
of or damage to property sustained or occurring or
emanating from the Premises on account of or based upon
the act, omission, fault, negligence or misconduct of
LESSEE, its contractors, agents, employees, invitees or
visitors;
(ii) on account of or based upon any injury to person, or loss
of or damage to property, sustained on or occurring
elsewhere (other than on the Premises) in or about the
Property (and, in particular, without limitation, the
elevators, stairways, public corridors, sidewalks,
parking areas, concourses, arcades, approaches, areaways,
roof, or other appurtenances and facilities used in
connection with the Property or the Premises) arising out
of the use or occupancy of the Property or Premises by
the LESSEE or by any person claiming by, through or under
LESSEE, except to the extent such injury, loss or damage
was caused by the negligence, fault or misconduct of
LESSOR, or its contractors, agents or employees;
and in addition to and not in limitation of either of the
foregoing subdivisions (i) and (ii):
(iii) on account of or based upon (including moneys due on
account of) any work or thing whatsoever done (other than
by LESSOR or its contractors, or agents or employees or
either) on the Leased Premises; and, in respect of any of
the foregoing, from and against all costs, expenses
(including reasonable attorneys' fees), and liabilities
incurred in or in connection with any such claim, or any
action or proceeding brought thereon; and in case any
action or proceeding be
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brought against LESSOR by reason of any such claim.
LESSEE upon notice from LESSOR shall at LESSEE'S expense
resist or defend such action or proceeding and employ
counsel therefore reasonably satisfactory to LESSOR, it
being agreed that such counsel as may act for insurance
underwriters of LESSEE engaged in such defense shall be
deemed satisfactory.
17. LIABILITY The LESSEE shall maintain with respect to the Premises and the
INSURANCE property of which the Premises are a part comprehensive
publicliability insurance in the amount of $1,000,000 with
property damage insurance in limits of $500,000 in responsible
companies qualified to do business in Massachusetts and in good
standing therein insuring the LESSOR as well as LESSEE against
injury to persons or damage to property as provided. LESSEE
agrees to increase limits as LESSOR'S mortgagee reasonably
requires. The LESSEE shall deposit with the LESSOR certificates
for such insurance at or prior to the commencement of the Term,
and thereafter within thirty (30) days prior to the expiration of
any such policies. All such insurance certificates shall provide
that such policies shall not be cancelled without at least ten
(10) days prior written notice to each assured named therein.
(a) LESSOR shall maintain all-risk, extended coverage,
casualty and comprehensive public liability
insurance with respect to the building, with such
deductibles as are now retained by prudent owners
of similar property in Boston.
(b) Each party hereby waives all liability of and all
rights of recovery and subrogation against the
other party or any of the officers, agents or
employees of the other party for any loss of or
damage to property arising out of fire or
casualty, and each party hereby agrees that
neither such party nor any of its officers,
agents, employees, or its or their insurers will
▇▇▇ the other party or any of the officers, agents
or employees of the other party, for any loss of
or damage to property arising out of fire or
casualty. Each party further agrees that all
casualty insurance policies carried by such party
will contain waivers by the insurer of such
liability, recovery, subrogation and suit. In the
event of a fire or casualty emanating from
LESSEE'S premises due to the fault or negligence
of LESSEE, LESSEE shall pay LESSOR'S deductible.
18. FIRE, CASUAL- (a) Should a substantial portion of the Premises, or of the
TY, EMINENT property of which they are a part, be substantially damaged
DOMAIN by fire or other casualty, or be taken by eminent domain,
the LESSOR may elect to terminate this lease. When such
fire, casualty, or taking renders all or part of the
Premises substantially unsuitable for their intended use, a
just and proportionate abatement of rent shall be made, and
the LESSEE may elect to terminate this lease if:
(i) The LESSOR fails to give written notice within
thirty (30) days of the event of its intention
to restore Premises, or
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(ii) The LESSOR fails to restore the Premises to a
condition substantially suitable for their
intended use within ninety (90) days of said
fire, casualty or taking. LESSOR reserves, and
the LESSEE grants the LESSOR, all rights which
the LESSEE may have for damages or injury to the
Premises for any taking by eminent domain,
except for damage to the LESSEE'S fixtures,
property, or equipment, and LESSEE'S moving
expenses.
(b) Should the Premises be damaged by fire or other
casualty or taken by eminent domain and this Lease not be
terminated pursuant to Section 18(a), LESSOR shall promptly
restore the Premises to the fullest extent possible, rent
shall be abated equitably for the time and to the extent the
Premises are not fully useable for their intended use, and
the Lease otherwise shall remain in full force and effect.
19. DEFAULT AND In the event that:
BANKRUPTCY
(a) The LESSEE shall default in the payment of any
installment of rent or other sum herein specified and
such default shall continue for five (5) days after
written notice thereof; or
(b) The LESSEE shall default in the observance or
performance of any other of the LESSEE'S covenants,
agreements, or obligations hereunder and such default
shall not be corrected within thirty (30) days after
written notice thereof unless the same cannot be cured
within such time and LESSEE is diligently pursuing such
cure; or
(c) The LESSEE shall file or be filed against and the same
shall not be dismissed within ninety (90) days in any
bankruptcy, insolvency or reorganization petition; or
(d) The LESSEE shall be declared bankrupt or insolvent
according to law, or, if any assignment shall be made
of LESSEE's property for the benefit of creditors, or
(e) Any attachment is made of the leasehold interest
created by this lease and the same shall not be
dismissed within ninety (90) days; or
(f) A receiver is appointed to conduct LESSEE'S business
(whether or not LESSOR has re-entered the premises) and
the same shall not be dismissed within ninety (90)
days.
Then the LESSOR shall have the right thereafter, while such
default continues, to re-enter and take complete possession
of the Premises, to terminate this lease, and remove the
LESSEE'S effects without prejudice to any remedies which
might be otherwise used for arrears of rent or other
default. The LESSEE shall indemnify the LESSOR against all
loss of rent and additional rent and other payments which
the LESSOR may incur by reason of such termination during
the residue of the term, LESSOR agrees to use reasonable
efforts to mitigate LESSEE'S damages hereunder. If the
LESSEE shall default,
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after reasonable notice thereof in the observance or
performance of any conditions or covenants on LESSEE'S part
to be observed or performed under or by virtue of any of the
provisions in any article of this lease, the LESSOR, without
being under any obligation to do so and without thereby
waiving such default, may remedy such default for the
account and at the expense of the LESSEE. If the LESSOR
makes any expenditures or incurs any obligations for the
payment of money in connection therewith, including but not
limited to, reasonable attorney's fees in instituting,
prosecuting or defending any action or proceeding, such sums
paid or obligations insured, with interest at the rate of
prime plus 3% and costs, shall be paid to the LESSOR by the
LESSEE as additional rent. Any sums not paid when due shall
bear interest at 18 percent per annum until paid. LESSEE
shall pay an administrative fee of twenty-five dollars if a
check does not clear.
20. NOTICE Any Notice from the LESSOR to the LESSEE relating to the
Premises or to the occupancy thereof, shall be in writing
and be deemed duly served, if mailed to LESSOR'S Notice
Address as specified in Section 1 of this Lease, registered
or certified mail, return receipt requested, postage
prepaid, or by a recognized national overnight carrier
addressed to the LESSEE. Any Notice from the LESSEE to the
LESSOR relating to the Premises or to the occupancy thereof,
shall be deemed duly served, if mailed to the LESSOR'S
Notice Address as specified in Section 1 of this Lease, by
registered or certified mail, return receipt requested,
postage prepaid or by a recognized national overnight
carrier, addressed to the LESSOR at such other address as
the LESSOR may from time to time advise in writing. All rent
notices shall be paid and sent to the LESSOR at its notice
address or such other address as may be designated by
LESSOR.
21. SURRENDER The LESSEE shall at the expiration or other termination of
this Lease remove all LESSEE'S goods and effects from the
Premises, (including, without hereby limiting the generality
of the foregoing, all signs and lettering affixed or painted
by the LESSEE, either inside or outside the Premises).
LESSEE shall deliver to the LESSOR the Premises and all
keys, locks thereto, and other fixtures connected therewith
and all alterations and additions made to or upon the
Premises, in good condition reasonable wear and tear and
damage by fire or other casualty only excepted. In the event
of the LESSEE'S failure to remove any of LESSEE'S property
from the Premises, LESSOR is hereby authorized, without
liability to LESSEE for loss or damage thereto, and at the
sole risk of LESSEE, to remove and store any of the property
at LESSEE'S expense, or to retain same under LESSOR'S
control or to sell at public or private sale, without notice
any or all of the property not so removed and to apply the
net proceeds of such sale to the payment of any sum due
hereunder, or to destroy such property. The LESSEE shall
restore all damage to the Premises which may have occurred
during the use of Premises or while vacating the Premises.
Any items which the LESSEE installs, which replace items on
the Premises when LESSEE took occupancy are deemed to be
LESSOR'S property.
12
22. BROKERAGE A) LESSEE warrants and represents that LESSEE has dealt with
no broker other than the broker listed in Section 1 of this
lease in connection with the consummation of this Lease and,
in the event of any breach of such warranty and
representation, LESSEE agrees to defend the same and
indemnify LESSOR against any such claim.
B) LESSOR warrants and represents that LESSOR has dealt with
no broker other than the broker listed in Section 1 of this
lease in connection with the consummation of this Lease and,
in the event of any breach of such warranty and
representation, LESSOR agrees to defend the same and
indemnify LESSEE against any such claim.
23. LESSOR'S The LESSOR is not personally liable under this Lease. (a)
LIABILITY LESSEE specifically agrees to look solely to the equity in
the property of which the Premises are a part for recovery
of any judgment from LESSOR it being specifically agreed
that LESSOR (original or successor) shall never be
personally liable for any such judgment or for the payment
of any monetary obligation to LESSEE. The provisions
contained in the foregoing sentence are not intended to, and
shall not, limit any right the LESSEE might otherwise have
to obtain injunctive relief against LESSOR or to take any
action not involving the liability of LESSOR to respond in
monetary damages from LESSOR's assets other than from such
property.
24. WAIVER Failure on the part of the LESSOR or LESSEE 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 LESSOR or LESSEE, respectively, of its rights
hereunder. Further, no waiver at any time of the provisions
hereof, by LESSOR or LESSEE 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 LESSOR or LESSEE to or of any
action by the other requiring such consent or approval shall
not be construed to waive or render unnecessary LESSOR'S or
LESSEE'S consent or approval to or of any subsequent similar
act by the other.
25. STATUS Recognizing that both parties may find it necessary to
REPORT establish to third parties, from time to time, the then
current status of performance hereunder, either party will,
within 10 days after receipt of a request therefore, furnish
a statement of the status of any matter pertaining to this
Lease, including without imitation, acknowledgments that (or
the extent to which) each party is in compliance with its
obligations under the terms of the Lease.
26. CONDITION PERMANENT PREMISES:
AND AREA
Except as otherwise provided in this Section, the Permanent
Premises are being delivered strictly in their condition "as
is" and LESSEE acknowledges that it has inspected the same
and found them satisfactory. LESSOR will build space in
accordance with LESSEE'S plans and specifications in an
amount not to exceed $25 per square foot, as this amount may
be increased pursuant to Section 37 of this Lease.
13
A. PREPARATION OF
THE PREMISES: Promptly upon execution of the Lease, LESSEE will have
prepared, at its sole cost and expense, certain plans
("LESSEE'S Plans") for improvements to be made in the
Permanent premises to prepare the Permanent Premises for
LESSEE's occupancy. Upon completion of LESSEE'S Plans,
LESSEE shall submit the same to LESSOR for LESSOR'S
approval, which approval shall not be unreasonable delayed
or withheld. To the extent that LESSOR does not disapprove
LESSEE'S Plans in writing, and provide specific remedies
that will make LESSEE'S Plans acceptable, within ten (10)
Business Days after submission of the same by LESSEE, LESSOR
shall be conclusively deemed to have approved LESSEE'S
Plans. LESSOR shall contribute an allowance of $25,000
($1.25 per rentable square foot) for the preparation of the
LESSEE'S Plans and Specifications, payment to be made after
services are rendered and within thirty (30) days after
LESSEE forwards LESSOR bills or the same.
Promptly after approval of LESSEE'S Plans, LESSOR shall
exercise all reasonable efforts to complete in a cost
effective manner, with reasonable ▇▇▇▇-ups only, using first
class materials and in a good and ▇▇▇▇▇▇▇ like manner, at
its sole cost and expense, the work specified in LESSEE'S
Plans. The work shall collectively be referred to as the
"Permanent Premises Tenant Improvement Work." LESSEE shall
have no claim against LESSOR for failure so to complete such
Work, other than the right of termination provided in
Section 26B.
B. SUBSTANTIAL
COMPLETION: The Permanent Premises shall be deemed ready for occupancy
on the first day (the Permanent Premises Substantial
Completion Date") as of which the Permanent Premises Tenant
Improvement 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 LESSEE's use of the
Permanent Premises (i.e. so-called "punch list" items) the
building permit has received final sign-offs and LESSEE has
been given notice thereof. LESSOR shall complete, as soon as
conditions permit, all "punch list" items and LESSEE shall
afford LESSOR access to the Permanent Premises for such
purposes. Within a reasonable time after substantial
completion, LESSOR shall secure a final Certificate of
Occupancy for the Premises.
If the Permanent Premises Substantial Completion Date has
not occurred by May 1, 1998 (the "Permanent Premises Outside
Construction Completion Date") as it may be extended
pursuant to section 26.D. LESSEE shall have the right to
terminate this Lease by giving notice to LESSOR not later
than thirty (30) days after the Permanent Premises Outside
Construction Completion Date (as so extended), of LESSEE'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 thirty (30) days after the giving of such
notice, unless, within such 30-day period, LESSOR
substantially completes the
14
Permanent Premises Tenant Improvement Work. Such right of
termination shall be LESSEE's sole and exclusive remedy at
law or in equity for LESSOR's failure so to complete such
Work.
C. CONCLUSIVENESS
OF LESSOR'S
PERFORMANCE: Except as to latent defects, no later than sixty (60) days
after the Permanent Premises Substantial Completion Date,
LESSEE shall provide LESSEE with a list of any respects in
which LESSEE deems LESSOR has not performed LESSOR'S Work,
the so called "Punch List." LESSOR shall then complete such
items of LESSOR'S Work within a reasonable period of time.
D. LESSEES' 1) If a delay shall occur in the Permanent Premises
DELAYS: Substantial Completion Date as the result of:
i) Any request by LESSEE that LESSOR delay in the
commencement of completion of LESSOR's Work for any reason;
ii) Any change by LESSEE in any of LESSEE'S Plans after
LESSEE'S approval thereof;
iii) Any other act or omission of LESSEE or its officers,
agents, servants or contractors; or
iv) Any reasonably necessary displacement of any of the
Permanent Premises Tenant Improvement Work from its place in
LESSOR's construction schedule resulting from any of the
causes for delay referred to in clauses (i), (ii), (iii), or
this paragraph and the fitting of such Work back into such
schedule; then LESSEE shall, within ten (10) business days
of the Permanent Premises Commencement Date, pay to LESSOR
for each day of such delay the amount of Basic Rent,
Escalation Charges and other charges that would have been
payable hereunder.
The delays referred to above are herein referred to
collectively and individually as "LESSEE's Delay."
2) If, as a result of LESSEE'S Delay(s), the Substantial
Completion Date is delayed in the aggregate for more than
sixty (60) days, LESSEE shall pay rent on the Initial
Premises at the rate of $22.75 per square foot. If, then, as
a result of LESSEE's Delay(s), the Substantial Completion
Date is delayed in the aggregate for more than an additional
sixty (60) days, LESSOR may (but shall not be required to)
at any time thereafter terminate this Lease by giving
written notice of such termination to LESSEE and thereupon
this Lease shall terminate without further liability or
obligation on the part of either party, except that LESSEE
shall pay to LESSOR the cost theretofore incurred by LESSOR
in performing LESSOR's Work, plus an amount equal to
LESSOR's out-of-pocket expenses incurred in connection with
this Lease, including, without limitation, brokerage and
legal fees, together
15
with any amount required to be paid pursuant to Section 26
through the effective termination date. However, if within
five (5) days of LESSEE'S receipt of LESSOR'S written notice
of termination, LESSEE shall notify LESSOR that the
Permanent Premises Commencement Date is deemed to have
occurred, LESSOR'S Termination notice shall be null and void
and this Lease shall be in full force and effect as to the
Permanent Premises.
3) The Permanent Premises Completion Date shall
automatically be extended for the period of any delays
caused by LESSEE's Delay(s) or Force Majeure.
INITIAL PREMISES:
Except as otherwise provided in this Section, the Initial
Premises are being delivered strictly in their condition "as
is" and LESSEE acknowledges that it has inspected the same
and found them satisfactory. LESSOR shall build space in
accordance with the Plans and Specifications attached hereto
as Exhibit ▇. ▇▇▇▇▇▇ shall also provide HVAC as can be found
in similar buildings in the Greater Boston Area.
27. LESSOR'S LESSOR warrants and represents that it is the owner of
WARRANTY record of the Premises and that it has authority to grant
the leasehold interest conveyed hereby.
Quiet Enjoyment: LESSOR covenants that, upon payment of
Basic Rent and all other payments provided for herein and
observance and performance of all of the provisions of this
Lease to be observed and performed by LESSEE, LESSEE shall
quietly hold, occupy and enjoy the Demised Premises and all
of the rights relating thereto during the Term, without
hindrance or molestation by, LESSOR or any party claiming
by, under, through, or paramount to, LESSOR.
28. SEVERABIL- If any Term or provision of this Lease, or the application
ITY thereof to any person or circumstance shall, to the extent
the same shall be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by
law.
29. RECORDING LESSEE agrees not to record this Lease, but, if the Term of
this Lease (including any extended term) is seven (7) years
or longer, each party hereto agrees, on the request of the
other, to execute a so-called Notice of Lease in recordable
form and complying with applicable law and reasonably
satisfactory to LESSOR'S attorneys. 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.
30. HOLDING Any Holding Over by LESSEE after the expiration of the Term
OVER of this Lease shall be treated as a tenancy at sufferance at
a rate equal to one and one half times the Basic Rent then
in effect plus Additional Rent and other charges
16
herein provided. In the event that LESSOR incurs damages,
direct and/or indirect, sustained by reason of any such
holding over, LESSEE shall pay rent for the period of such
holding over at a rate equal to two and one half times the
Basic Rent then in effect plus Additional Rent and other
charges herein provided. Such payment shall be liquidated
damages and LESSOR shall have no further rights against
LESSEE at law or in equity. Otherwise, such Holding Over
shall be on the terms and conditions set forth in this Lease
as far as applicable.
31. GOVERNING This Lease shall be governed exclusively by the provisions
LAW hereof and by the laws of the Commonwealth of Massachusetts,
as the same may from time to time exist.
32. RELOCATION Deleted.
33. ENTIRE
AGREEMENT This Lease and the Exhibits made a part hereof contain the
entire and only agreement between the parties and any and
all statements and representations, written and oral,
including previous correspondence and agreements between the
parties hereto, are merged herein. LESSEE acknowledges that
all representations and statements upon which it relied in
executing this Lease are contained herein and that the
LESSEE in no way relied upon any other statements or
representations, written or oral. Any executory agreement
hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or
in part unless such executory agreement is in writing and
signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
34. OPTION TO
EXTEND: Provided that at the time of such exercise (i) there then
exists no Default of LESSEE beyond applicable notice and
cure periods, (ii) this Lease is then in full force and
effect, and (iii) LESSEE is in actual occupancy in excess of
75% of the Premises, LESSEE shall have the right and option
to extend the term of this Lease for one (1) extended term
of five years (the "Extended Term"). The Extended Term shall
commence on the day immediately succeeding the expiration
date of the Initial Term, and shall end on the day
immediately preceding the fifth anniversary of the first day
of such Extended Term. LESSEE shall exercise such option to
extend by giving written notice to LESSOR of its desire to
do so not later than twelve (12) months prior to the
expiration date of the Initial Term. Provided the conditions
of clauses (i), (ii) and (iii) of this section shall have
been satisfied, the giving of such notice by LESSEE shall
automatically extend the Term of this Lease for the Extended
Term, and no instrument of renewal need be executed. In the
event that LESSEE fails to give such notice to LESSOR, this
Lease shall automatically terminate at the end of the
Initial Term, and LESSEE shall have no further option to
extend the Term of this Lease, it being agreed that time is
of the essence with respect to the giving of such notice.
The Extended Term shall be on all the terms and conditions
of this Lease, except that (I) option to extend that Term of
this Lease, and (II) the Basic Rent for the Extended Term
shall be at Fair Market Value. LESSOR shall designate Fair
Market Value, (the "Fair Market Value") by written notice to
LESSEE within sixty (60) days of receipt of notice from
LESSEE. If LESSEE disagrees with such designation, (the
17
"Designation"), LESSEE shall by written notice, sent within
twenty (20) days of receipt of Designation, advise LESSOR of
such disagreement; otherwise LESSEE shall conclusively be
deemed to have agreed to such Designation.
In the event that the Parties are unable to agree, each
Party shall appoint an appraiser within ten (10) business
days. Each appraiser so appointed shall be instructed to
determine independently the Fair Market Value and then
confer. If the two appraisers are unable to determine a
Designation acceptable to both parties within ten (10)
business days, they shall appoint a third appraiser within
ten (10) business days. The Designation of this appraiser
shall be considered final. The final appraisers report shall
be delivered within twenty (20) days and shall be considered
binding on both parties.
35. RIGHT OF
FIRST OFFER If at any time during the Term of this Lease, LESSOR shall
desire to lease any space on the first, third and fourth
floors of the Building (the "First Offer Space"), LESSOR
shall notify LESSEE and set forth the Fair Market Value
terms and conditions on which LESSOR is willing to lease all
or any portion of the First Offer Space, including, without
limitation, rent, build-out allowance and other tenant
incentives or inducements to lease, if any. The Terms shall
be the same as offered to other LESSEE'S with similar Rights
of First Offer. Provided that the time of such exercise (i)
there then exists no Default of LESSEE beyond applicable
notice and cure periods, (ii) this Lease is then if full
force and effect, and (iii) LESSEE is in actual occupancy of
the entire Premises demised thereunder, LESSEE may, by
giving notice in writing to LESSOR within five (5) Business
Days after receipt of LESSOR'S notice, elect to lease the
First Offer Space on the terms so offered by LESSOR. If
LESSEE shall so elect to lease the First Offer Space, it
shall within ten (10) days after such election enter into an
amendment to this Lease incorporating the terms and
contained in LESSOR'S notice. If LESSEE shall not elect to
lease the First Offer Space within such five (5) Business
Day period, or shall fail to enter into such amendment to
this Lease within such ten-day period, LESSEE shall have no
further rights under this section with respect to the First
Offer Space and LESSOR shall be free to lease any or all of
such space to other parties. LESSEE'S rights under this
section of the lease shall be subordinate to the existing
tenant's rights under this section, as set forth on Exhibit
F attached hereto. If the First Offer Space remains
unleased, LESSOR shall re-offer the space to LESSEE after
two hundred forty (240) days.
36. PARKING LESSOR shall lease one triple and one tandem slot, each able
to accommodate three and two cars respectively at the rate
of $1,000 per month (two hundred dollars per car space). The
particular slots may be changed from time to time but at the
beginning of the lease term the slots shall be 5 & 6 as
detailed on Exhibit B attached hereto.
37. LESSOR'S If the cost to construct the Permanent Premises in
ADDITIONAL accordance with LESSEE'S Plans is in excess of $25/psf
TENANT ($500,000), LESSOR shall, if requested by LESSEE, provide up
IMPROVE to an additional $10/psf ("LESSOR'S Additional Tenant
MENT Improvement Allowance"). The LESSOR'S Additional Tenant
ALLOWANCE Improvement Allowance may be used only for the costs of
construction to the Permanent Premises and my not be used
for furniture or in any other way.
18
LESSEE shall repay the LESSOR'S Additional Tenant
Improvement Allowance in equal monthly payments of principal
and interest calculated at a 10% per annum rate as
Additional Rent.
The total amount of the LESSOR'S Additional Tenant
Improvement Allowance shall be added to the base Letter of
Credit at described in Section 1 of this Lease and shall be
reduced each year on a schedule separate from the base
portion. The "Additional Portion of the Letter of Credit"
shall reduce at the rate of one-third per year.
38. INITIAL Prior to the Permanent Premises Commencement Date, LESSEE
PREMISES may have mail and other packages delivered to the security
MAIL desk at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇. The mail and other packages shall
DELIVERY then be delivered to LESSEE at the Initial Premises. Such
delivery shall be made by building maintenance personnel,
one time each day, at a time mutually agreeable to LESSEE
and LESSOR. ESSEE may pick up mail and other packages more
frequently. LESSOR hall exercise reasonable care with
LESSEE'S mail and other packages, however, LESSOR shall have
no responsibility for LESSEE'S mail and other packages.
39. OTHER
PROVISIONS None.
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals this 2nd
day of May, 1997.
LESSEE: ________________ LESSOR: Lincoln Plaza Limited Partnership
BY: L.P. Properties, Inc. - its General Partner
BY: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - its President
By: /s/ Signature Illegible
PRESIDENT SVIP
Hereunto Duly Authorized
19
EXHIBIT A - 1
INITIAL PREMISES
[EXHIBIT OMITTED]
20
EXHIBIT A - 2
PERMANENT PREMISES
[EXHIBIT OMITTED]
21
EXHIBIT B
Parking.
SPACE # # OF SPACES
------- -----------
1 2
2 3
3 3
4 3
5 3 SVIP
6 2 SVIP
7 2
8 2
9 2
10 2
11 2
12 2
13 2
LESSOR may substitute or change the particular parking spaces.
22
EXHIBIT C
ITEMS INCLUDED IN OPERATING EXPENSES
------------------------------------
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Lessor or Lessor's agents which shall be directly
related to employment of personnel for the Property, 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 expenses imposed on Lessor or Lessor's agents pursuant to any
collective bargaining agreement for the services of employees of Lessor or
Lessor'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 for other property of Lessor, such compensation shall be
suitably prorated among the Property and such other properties.
2. The cost of services, utilities, materials and supplies furnished or used
in the operation, repair, maintenance, including without limitation fees,
if any, imposed upon Lessor, or charged to the Property, by the state or
municipality in which the Property is located on account of the need of the
Property for increased or augmented public safety services.
3. The cost of replacements for tools and other similar equipment used in the
repair, maintenance, cleaning and protection of the Property, provided
that, in the case of any such equipment used jointly on other properties,
such costs shall be suitably prorated among the Property and such other
properties.
4. Where the Property is managed by Lessor or an affiliate of Lessor, 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 Lessor or an affiliate thereof, the amounts charged for
management, together with, in either case, reasonable amounts charged for
legal and other professional fees relating to the Property, but excluding
such fees and commissions paid in connection with services rendered for
securing, terminating or renewing leases and administration and operation
of the Premises. The rate for the management fee shall be adjusted to
reflect the same rate in the base year as in each subsequent year. In
calendar year 1996, the rate charged was 4%.
5. Reasonable premiums for insurance against damage or loss to the Property
from such hazards as shall from time to time be required by mortgagees.
6. If, during the Term of this Lease, Lessor shall make a capital expenditure
for the purpose of reducing Operating Expenses or to comply with law
hereinafter imposed, the total cost of which is not 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 the annual charge-off of such capital expenditure; and the
useful life shall be determined reasonably by Lessor in
23
accordance with generally accepted accounting principles and practices in
effect at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other utilities
supplied to the Property and not paid for directly by Tenants in the
Building.
8. Betterment assessments provided the same are apportioned equally over the
longest period permitted by law.
9. Amounts paid to independent contractors for services, materials, and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
If, for any reason portions of the rentable area of the Building not included in
the Premises were not occupied by lessees or LESSOR was not supplying all
lessees with the services being supplied under this Lease or any lessees in the
Building were supplied with a lesser level of standard services than those
supplied to LESSEE under this Lease, LESSOR'S Operating Expenses for the
property shall include the amounts reasonably determined by LESSOR which would
have been incurred if all of the rentable area in the Building were occupied and
were supplied with the same level of standard services as supplied to LESSEE
under this Lease.
Excluded Items
Operating Expenses for the Property shall not include the following: LESSOR'S
Tax Expenses; cost of repairs or replacements (i) resulting from eminent domain
takings, (ii) resulting from fire or other casualty except for (x) the amount
deductible from LESSOR'S insurance claim, as provided above or (y) any fire or
other casualty caused by a peril not required to be insured against under
Section 17 (with any capital expenditures being amortized as contemplated above
with respect to other capital expenditures), (iii) to the extent reimbursed by
insurance, or (iv) required, above and beyond ordinary periodic maintenance, to
maintain in good order, condition and repair the roads, driveways, walkways and
lobbies of the Building, including the roof, building systems, exterior walls
and floor slabs (an example of which, without limitation, would be the costs of
constructing and consequently maintaining, repairing and operating a Garage on
the Property); replacement or contingency reserves; the cost of capital
improvements (other than as specifically provided for above) or as required by
law heretofore imposed but which LESSOR has failed to complete; ground lease
rents or payment of debt obligations; real estate taxes other than with respect
to the Property except as expressly provided above in connection with the common
areas and amenities; legal and other professional fees for matters not relating
to the normal administration and operation of the Property (expressly excluding
fees and charges incurred for the recovery of the rentals or the eviction of
tenants); advertising (except for employment advertisements pertaining to
building staff), public relations or brokerage fees and commissions paid in
connection with services rendered for securing or renewing leases; costs of
services or work provided to other lessees in excess of services or work to
which LESSEE is entitled hereunder without additional charge; interest or
penalties for late payments; depreciation and other non-cash charges (except as
otherwise expressly provided); personnel charges for employees above the grade
of property manager (and overhead associated therewith), except in those
instances where a property manager is not charged to the property and then, a
portion of an individual above the grade of property manager may be so allocated
to the property. The percentage allocation shall be made based on the
individuals allocation of time to the building. LESSOR'S Operating Expenses
shall be reduced by the amount of any proceeds, payments, credits or
reimbursements which LESSOR receives from sources other than tenants and which
are applicable to such Operating Expenses for the Property.
24
EXHIBIT D
Initial Premises Plans & Specifications
* The walls marked shall be demoed and the remaining walls repaired.
* The walls and ceilings shall be painted in the color of LESSOR'S choice.
* All completed areas shall be recarpeted with LESSOR'S choice of carpet. All
other flooring shall remain as is.
* See following plan.
25
EXHIBIT E
Cleaning Specifications
Provide services five nights a week, Monday through Friday between the hours of
5 p.m. & 10 p.m.
MAIN LOBBY(S):
-------------
Daily:
-----
Sweep and wash flooring. Lobby floor to be maintained in accordance with
Capital Properties, Inc. specifications.
All ash urns to be emptied, black matter to be replaced as necessary.
All elevator doors to be wiped down and polished every night.
Lobby wall to be dusted within hand reach.
All glass including doors, both sides, windows within reach of cleaner and
floor directories to be cleaned and polished.
Smudges and fingerprints to be wiped from walls, switchplates, doors,
counters, elevator call buttons and elsewhere as needed.
All planters to be polished and arranged property on floor.
All brass surfaces to be wiped down.
Wash all rubber mats.
Monthly:
-------
All resilient tile floors in public areas to be treated equivalent to spray
buffing. (Medford)
Quarterly:
---------
Dusting of high-hats and diffusers
Maintenance of lobby floors in accordance of Capital Properties
specifications.
ELEVATORS:
---------
Daily:
-----
All wall surfaces to be cleaned and polished every night.
26
All door tracts to be vacuumed and polished.
Weekly:
------
Stainless steel ceiling panels to be cleaned and polished.
GENERAL AND PRIVATE OFFICES, RECEPTION AREA, CONFERENCE ROMS, HALLWAYS,
STAIRWELLS, ETC.:
-------------------------------------------------------------------------------
Nightly:
-------
Empty all wastebaskets, replace liners. Liners to be supplied by Capital
Properties
Empty all ashtrays, damp wipe and polish.
Dust all desks, chairs, tables, office furniture and equipment, window
▇▇▇▇▇, ledges, horizontal surfaces, etc.
Wash and sanitize sides and tops of all water coolers.
Hand dust all grill work within normal reach.
Remove all fingermarks from private entrance doors, light switches and
doorways.
Spot clean walls around light switches, door jambs, etc.
Wipe clean all brass and other bright work.
Spot clean all glass partitions. (both sides)
Remove and dust under all desk equipment and telephone and replace same.
Thoroughly vacuum all carpeting.
----------
Dry mop V.C.T. flooring. Damp mop spillage on V.C.T. flooring.
Weekly:
------
Damp mop and spray buff V.C.T. flooring.
Dust coat racks, and the like.
Wash both sides of all glass partitions.
Remove and dust under all desk equipment and telephone and replace same.
Quarterly:
---------
Render high dusting not reached in daily cleaning to include.
27
Semi-Annually:
-------------
Dust diffusers, ceiling corners and high dusting above 72"
Annually:
--------
Machine strip and refinish V.C.T. flooring.
B. RESTROOMS:
------------
Nightly:
-------
Clean all bowl faces.
Clean and sanitize all toilets and urinals.
Clean all bright work.
Clean mirrors.
Wash both sides of all toilet seats.
Empty ashtrays and clean inside and outside.
Empty waste receptacles, clean outside and replace plastic liners. Liners
furnished by Capital Properties, Inc.
Empty sanitary napkin disposal units.
Replace expendable items (hand towels, toilet tissue, hand soap). Products
furnished by Capital Properties, Inc.
Spot clean partitions, walls and entry doors.
Sweep and wash (with a disinfectant cleaner) bathroom floors.
Weekly:
------
Clean showers. (If any)
Monthly:
-------
Remove cobwebs from ceilings and corners.
Clean diffusers.
Dust above 72".
Wash partitions and walls.
28
Monthly:
-------
Machine scrub lavatory floors.
Semi-Annually:
-------------
Machine scrub and refinish (using a water sealer).
29
CAFETERIA/KITCHEN:
-----------------
Nightly:
-------
Empty all waste containers, clean exteriors and replace liners. Liners
supplied by Capital Properties, Inc.
Wash and sanitize table tops and counters.
Clean kitchen sink.
Damp mop and spray buff V.C.T. flooring.
Monthly:
-------
Spray buff all hard surface floor area.
Annually:
--------
Machine strip and refinish all V.C.T. flooring.
GENERAL:
-------
Nightly:
-------
Remove all trash to designated area in accordance with any recycling
programs that may be in effect.
Clean janitor closets at end of shift, leave all equipment neat and
orderly.
Maintain daily log.
30
EXHIBIT F
Existing Tenants Rights for the
First, Third and ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Banking Institute - Lease through 7/31/04, one five year
option.
Suite 102 New England Banking Institute - Lease through 7/31/04, one five year
option.
Suite 104 New England Banking Institute - Right of First Offer
Suite 301 GE Capital ITS - Lease through 3-31-02, one five year option.
Unicco Service Co. (Suite 305) Right of First Offer
Suite 305 Unicco Service Co. - Lease through 5-31-02, one five year option.
GE Capital ITS (Suite 301) Right of First Offer
Suite 401 HDR - Lease through 12-31-00
Suite 405 FST/HNTB - Lease through 7-31-99, two one year options
HDR (Suite 401) Right of First Offer
31
[CHART OMITTED]