Exhibit 10.4
LEASE AGREEMENT BETWEEN
DVPT LIMITED PARTNERSHIP,
AS LANDLORD, AND
ART TECHNOLOGY GROUP, INC., AS TENANT
DATED MARCH 11, 1999
BASIC LEASE INFORMATION
Lease Date: ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇: ART TECHNOLOGY, INC. GROUP, a Delaware corporation
Landlord: DVPT LIMITED PARTNERSHIP, a Delaware limited
partnership
Premises: 60,471 rentable square feet on the second (2nd) floor in the office
building known as building #'s 1-14 of The ▇▇▇▇▇▇▇▇▇ Building
(the "BUILDING"), and whose street address is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇. The Premises are outlined on the plan
attached to the Lease as EXHIBIT A. The land on which the
Building is located (the "LAND") is described on EXHIBIT B. The
term "Building" includes the related land, driveways, parking
facilities, and similar improvements.
Right of
First Offer: See Exhibit J.
Term: Subject to the provisions of Section 3 of this Lease, approximately
eighty-four (84) months, commencing on the earlier of (i) the date
which is one hundred twenty (120) days after the date upon which
Landlord delivers the Premises to Tenant, or (ii) the date upon
which Tenant occupies the Premises for the Permitted Use (the
"COMMENCEMENT DATE") and ending at 5:00 p.m. on the last day
of the eighty-fourth (84th) full calendar month following the
Commencement Date, subject to adjustment and earlier termination
as provided in the Lease.
Renewal Option: See Exhibit H.
Basic Rent: Basic Rent shall be the following amounts for the following
periods of time:
LEASE MONTH MONTHLY BASIC
RENT
1-24 $181,413.00
25-60 $187,712.00
61-84 $192,751.00
i
As used herein, the term "LEASE MONTH" shall
mean each calendar month during the Term
(and if the Commencement Date does not occur
on the first day of a calendar month, the
period from the Commencement Date to the
first day of the next calendar month shall
be included in the first Lease Month for
purposes of determining the duration of the
Term and the monthly Basic Rent rate
applicable for such partial month).
Security Deposit: Subject to the provisions of Section 6 of this Lease, $1,500,000.00.
Rent: Basic Rent, Tenant's Proportionate Share of Taxes, Tenant's share
of Additional Rent, and all other sums that Tenant may owe to
Landlord or otherwise be required to pay under the Lease.
Permitted Use: General office use and training classrooms.
Tenant's
Proportionate Share: 27.39%, which is the percentage
obtained by dividing the 60,471 rentable
square feet in the Premises by the 220,750
rentable square feet in the Building.
Landlord and Tenant stipulate that the
number of rentable square feet in the
Premises and in the Building set forth above
shall be binding upon them.
Expense Stop: Operating Costs for calendar year 1999.
Base Year for Taxes: Fiscal Year 2000.
Initial Liability
Insurance Amount: $3,000,000.
Maximum Construction
Allowance: $18.00 per rentable square foot.
Tenant's Address: PRIOR TO COMMENCEMENT DATE: FOLLOWING COMMENCEMENT DATE:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, The ▇▇▇▇▇▇▇▇▇ Building
22nd Floor ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WITH A COPY TO:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Esq.
Landlord's Address: FOR ALL NOTICES: WITH A COPY TO:
Archon Group, ▇.▇. ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
The foregoing Basic Lease Information is incorporated into and made a part of
the Lease identified above. If any conflict exists between any Basic Lease
Information and the Lease, then the Lease shall control.
LANDLORD:
DVPT LIMITED PARTNERSHIP, a Delaware
limited partnership
By: New DVPT Corp., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
-----------------------------------
TENANT:
ART TECHNOLOGY GROUP, INC., a Delaware
corporation
By: /S/ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: President/CEO
-----------------------------------
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TABLE OF CONTENTS
Page
1. Definitions and Basic Provisions............................................................................1
2. Lease Grant.................................................................................................1
3. Term........................................................................................................1
4. Rent........................................................................................................2
(a) Payment............................................................................................2
(b) Operating Costs; Taxes.............................................................................2
(c) Billing for Electricity............................................................................5
5. Delinquent Payment; Handling Charges........................................................................5
6. Security Deposit............................................................................................5
7. Landlord's Obligations......................................................................................7
(a) Services...........................................................................................7
(b) Excess Utility Use.................................................................................8
(c) Restoration of Services; Abatement.................................................................8
8. Improvements; Alterations; Repairs; Maintenance.............................................................9
(a) Improvements; Alterations..........................................................................9
(b) Repairs; Maintenance...............................................................................9
(c) Performance of Work................................................................................9
(d) Mechanic's Liens..................................................................................10
9. Use........................................................................................................10
10. Assignment and Subletting..................................................................................10
(a) Transfers.........................................................................................10
(b) Consent Standards.................................................................................11
(c) Request for Consent...............................................................................11
(d) Conditions to Consent.............................................................................11
(e) Cancellation......................................................................................11
(f) Additional Compensation...........................................................................12
(g) Permitted Transfers...............................................................................12
11. Insurance; Waivers; Subrogation; Indemnity.................................................................13
(a) Insurance.........................................................................................13
(b) Waiver of Negligence; No Subrogation..............................................................13
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(c) Indemnity.........................................................................................13
(d) Landlord's Insurance..............................................................................14
12. Subordination; Attornment; Notice to Landlord's Mortgagee..................................................14
(a) Subordination.....................................................................................14
(b) Attornment........................................................................................14
(c) Notice to Landlord's Mortgagee....................................................................14
(d) Landlord's Mortgagee's Protection Provisions......................................................14
(e) Subordination, Non-Disturbance and Attornment Agreement...........................................15
13. Rules and Regulations......................................................................................15
14. Condemnation...............................................................................................15
(a) Total Taking......................................................................................15
(b) Partial Taking - Tenant's Rights..................................................................15
(c) Partial Taking - Landlord's Rights................................................................16
(d) Award.............................................................................................16
15. Fire or Other Casualty.....................................................................................16
(a) Repair Estimate...................................................................................16
(b) Landlord's and Tenant's Rights....................................................................16
(c) Landlord's Rights.................................................................................16
(d) Repair Obligation.................................................................................17
16. Personal Property Taxes....................................................................................17
17. Events of Default..........................................................................................17
17A. Landlord's Default.........................................................................................18
18. Remedies...................................................................................................18
19. Payment by Tenant; Non-Waiver..............................................................................19
(a) Payment by Tenant.................................................................................19
(b) No Waiver.........................................................................................20
20. Landlord's Lien............................................................................................20
21. Surrender of Premises......................................................................................20
22. Holding Over...............................................................................................20
23. Certain Rights Reserved by Landlord........................................................................21
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24. Intentionally Omitted......................................................................................21
25. Miscellaneous..............................................................................................21
(a) Landlord Transfer.................................................................................21
(b) Landlord's Liability..............................................................................21
(c) Force Majeure.....................................................................................22
(d) Brokerage.........................................................................................22
(e) Estoppel Certificates.............................................................................22
(f) Notices...........................................................................................22
(g) Separability......................................................................................22
(h) Amendments; and Binding Effect....................................................................23
(i) Quiet Enjoyment...................................................................................23
(j) No Merger.........................................................................................23
(k) No Offer..........................................................................................23
(l) Entire Agreement..................................................................................23
(m) Waiver of Jury Trial..............................................................................23
(n) Governing Law.....................................................................................23
(o) Joint and Several Liability.......................................................................23
(p) Financial Reports.................................................................................23
(q) Landlord's Fees...................................................................................24
(r) Telecommunications................................................................................24
(s) Confidentiality...................................................................................24
(t) Hazardous Materials...............................................................................25
(u) List of Exhibits..................................................................................25
26. Other Provisions...........................................................................................26
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LIST OF DEFINED TERMS
Additional Rent ...................................................................................................2
Affiliate ...................................................................................................1
Amendment .................................................................................................E-1
AS-IS .................................................................................................D-1
Basic Lease Information..............................................................................................1
Basic Rent ...................................................................................................i
Building ...................................................................................................i
Casualty ..................................................................................................16
Commencement Date ...................................................................................................i
Construction Allowance.............................................................................................D-3
Damage Notice ..................................................................................................16
Event of Default ..................................................................................................17
Fair Market Rental Rate............................................................................................H-1
GAAP ..................................................................................................13
Hazardous Materials.................................................................................................25
HVAC ...................................................................................................7
including ...................................................................................................1
Land ...................................................................................................i
Landlord ...................................................................................................1
Landlord Delay .................................................................................................D-1
Landlord's Mortgagee................................................................................................14
Law ...................................................................................................1
Laws ...................................................................................................1
Lease ...................................................................................................1
Lease Month ...................................................................................................i
Letter of Credit ...................................................................................................5
Loss ..................................................................................................13
Offer Notice .................................................................................................J-1
Offer Space .................................................................................................J-1
Operating Costs ...................................................................................................2
Operating Costs and Tax Statement....................................................................................4
Permitted Transfer..................................................................................................12
Permitted Transferee................................................................................................12
Permitted Use ..................................................................................................ii
Premises ...................................................................................................i
Rent ..................................................................................................ii
Security Deposit ..................................................................................................ii
Taking ..................................................................................................15
Tangible Net Worth..................................................................................................13
Taxes ...................................................................................................4
Tenant ...................................................................................................1
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Tenant Party ...................................................................................................1
Tenant's Proportionate Share........................................................................................ii
Term ...................................................................................................i
Third Party Offer .................................................................................................J-1
Total Construction Costs...........................................................................................D-2
Transfer ..................................................................................................11
Work .................................................................................................D-1
Working Drawings .................................................................................................D-1
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LEASE
THIS LEASE AGREEMENT (this "LEASE") is entered into as of March 11,
1999, between DVPT LIMITED PARTNERSHIP, a Delaware limited partnership
("LANDLORD"), and ART TECHNOLOGY GROUP, INC., a Delaware corporation ("TENANT").
1. DEFINITIONS AND BASIC PROVISIONS. The definitions and basic
provisions set forth in the Basic Lease Information (the "BASIC LEASE
INFORMATION") executed by Landlord and Tenant contemporaneously herewith are
incorporated herein by reference for all purposes. Additionally, the following
terms shall have the following meanings when used in this Lease: "LAWS" means
all federal, state, and local laws, rules and regulations, all court orders,
governmental directives, and governmental orders, and all restrictive covenants
affecting the Property, and "LAW" shall mean any of the foregoing; "AFFILIATE"
means any person or entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
party in question; "TENANT PARTY" means any of the following persons: Tenant;
any assignees claiming by, through, or under Tenant; any subtenants claiming by,
through, or under Tenant; and any of their respective agents, contractors,
employees, and invitees; and "INCLUDING" means including, without limitation.
2. LEASE GRANT. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises, together with the
non-exclusive right to use in common for itself and its employees, agents,
customers, invitees and licensees with others as appurtenant to the Premises
common lobbies, hallways, stairways, elevators, bathrooms, building entrances,
exits and accessways, and the Building's common utility pipes and service
connections.
3. TERM. Tenant's obligation to pay Basic Rent and Additional Rent (as
defined in Section 4) shall be waived until Landlord tenders possession of the
Premises to Tenant. Landlord shall not be in default hereunder or be liable for
damages for failure to deliver the Premises by a date certain. Tenant shall
accept possession of the Premises when Landlord tenders possession thereof to
Tenant. By occupying the Premises, Tenant shall be deemed to have accepted the
Premises in their condition as of the date of such occupancy. Tenant shall
execute and deliver to Landlord, within ten days after Landlord has requested
the same, an amendment substantially in the form of EXHIBIT E hereto confirming
the Commencement Date and the expiration date of the initial Term, that Tenant
has accepted the Premises, and that Landlord has performed all of its
obligations with respect to the Premises (except for punch-list items specified
in such letter). Use and occupancy of the Premises (or any portion thereof) by
Tenant prior to the Commencement Date shall be subject to all of the provisions
of this Lease excepting only those requiring the payment of Basic Rent.
Notwithstanding the foregoing, if the Premises have not been delivered to Tenant
in accordance with the terms and conditions of this Lease on or before November
30, 1999, then Tenant shall have the right to terminate this Lease upon thirty
(30) days prior written notice to Landlord; PROVIDED, HOWEVER, if Landlord
delivers possession of the Premises to Tenant within said thirty (30) day
period, then Tenant's termination notice shall be null and void and the
provisions of this Lease shall remain in full force and effect. If this Lease is
terminated in accordance with
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provisions in the preceding sentence, Landlord shall immediately return any
deposits or other funds paid to Landlord by Tenant.
Landlord and Tenant acknowledge that, subject to the
provisions of this Lease, Tenant intends to sublease approximately 10,000
rentable square feet (the "Subleased Premises") of the Premises at the beginning
of the Term. Notwithstanding any provisions of this Lease to the contrary, if
Tenant occupies only the Subleased Premises (as opposed to any other portion of
the Premises) for the Permitted Use prior to the date which is one hundred
twenty (120) days after the date upon which Landlord delivers the Premises to
Tenant, such occupancy for the Permitted Use shall not cause the Commencement
Date to otherwise occur except that Tenant shall be required to pay a
proportionate share of Rent for the Subleased Premises as of the date it
occupies the Subleased Premises for the Permitted Use.
4. RENT.
(a) PAYMENT. Tenant shall timely pay to Landlord Basic Rent
and all additional sums to be paid by Tenant to Landlord under this Lease,
without notice, deduction or set off, except as otherwise expressly provided
herein, at Landlord's address provided for in this Lease or as otherwise
specified by Landlord and shall be accompanied by all applicable state and local
sales or use taxes. Basic Rent, adjusted as herein provided, shall be payable
monthly in advance. The first monthly installment of Basic Rent shall be payable
contemporaneously with the execution of this Lease; thereafter, Basic Rent shall
be payable on the first day of each month beginning on the first day of the
second full calendar month of the Term. The monthly Basic Rent for any partial
month at the beginning of the Term shall equal the product of 1/365 of the
annual Basic Rent in effect during the partial month and the number of days in
the partial month from and after the Commencement Date, and shall be due on the
Commencement Date.
(b) OPERATING COSTS; TAXES.
(1) Tenant shall pay an amount (per each
rentable square foot in the Premises) ("ADDITIONAL RENT") equal to the
difference between the Operating Costs (defined below) per rentable square foot
in the Building and the Expense Stop (calculated on a per rentable square foot
basis). Landlord may make a good faith estimate of the Additional Rent to be due
by Tenant for any calendar year or part thereof during the Term, and Tenant
shall pay to Landlord, on January 1, 2000 and on the first day of each calendar
month thereafter, an amount equal to the estimated Additional Rent for such
calendar year or part thereof divided by the number of months therein. From time
to time, Landlord may estimate and re-estimate the Additional Rent to be due by
Tenant and deliver a copy of the estimate or re-estimate to Tenant. Thereafter,
the monthly installments of Additional Rent payable by Tenant shall be
appropriately adjusted in accordance with the estimations so that, by the end of
the calendar year in question, Tenant shall have paid all of the Additional Rent
as estimated by Landlord. Any amounts paid based on such an estimate shall be
subject to adjustment as herein provided when actual Operating Costs are
available for each calendar year.
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(2) The term "OPERATING COSTS" shall mean all
expenses and disbursements (subject to the limitations set forth below) that
Landlord incurs in connection with the ownership, operation, and maintenance of
the Building, determined in accordance with sound accounting principles
consistently applied, including, but not limited to, the following costs: (A)
wages and salaries (including management fees, which management fees shall not
exceed fair market management fees for comparable buildings in the Cambridge
area) of all employees at the level of Building Manager and below engaged in the
operation, maintenance, and security of the Building, including taxes, insurance
and benefits relating thereto; (B) all supplies and materials used in the
operation, maintenance, repair, replacement, and security of the Building; (C)
costs for improvements made to the Building which, although capital in nature,
are expected to reduce the normal operating costs (including all utility costs)
of the Building, as well as capital improvements made in order to comply with
any law hereafter promulgated by any governmental authority, as amortized over
the useful economic life of such improvements as determined by Landlord in its
reasonable discretion; (D) cost of all utilities, except the cost of other
utilities reimbursable to Landlord by the Building's tenants other than pursuant
to a provision similar to this Section 4.(b); (E) insurance expenses; (F)
repairs, replacements, and general maintenance of the Building; and (G) service
or maintenance contracts with independent contractors for the operation,
maintenance, repair, replacement, or security of the Building (including,
without limitation, alarm service, window cleaning, and elevator maintenance).
Operating Costs shall not include costs for (i)
capital improvements made to the Building, other than capital improvements
described in Section 4.(b)(2)(C) and except for items which are generally
considered maintenance and repair items, such as painting of common areas,
replacement of carpet in elevator lobbies, and the like; (ii) repair,
replacements and general maintenance paid by proceeds of insurance or by Tenant
or other third parties; (iii) interest, amortization or other payments on loans
to Landlord or under a ground lease or master lease relating to the Building;
(iv) depreciation; (v) leasing commissions; (vi) legal expenses for services,
other than those that benefit the Building tenants generally (e.g., tax
disputes); (vii) renovating or otherwise improving space for occupants of the
Building or vacant space in the Building; (viii) Taxes (defined below); (ix)
federal income taxes imposed on or measured by the income of Landlord from the
operation of the Building; (x) any cost or expense to the extent to which
Landlord is paid or reimbursed (other than as a payment for Operating Costs),
including but not necessarily limited to, (1) work or service performed for any
tenant (including Tenant) at such tenant's costs, (2) the cost of any item for
which Landlord is paid or reimbursed by insurance, warranties, service
contracts, condemnation proceeds or otherwise, (3) increased insurance or taxes
assessed specifically to any tenant of the Building, (4) charges (including
applicable taxes) for electricity, water and other utilities for which Landlord
is entitled to reimbursement from any tenant, and (5) the cost of any HVAC,
janitorial or other services provided to tenants on an extra-cost basis after
regular business hours as defined in the Lease; (xi) salaries and bonuses of
officers and executives of Landlord; (xii) the cost of any work or service
performed on an extra-cost basis for any tenant of the Building (including
Tenant); (xiii) the cost of any work or services performed for any facility
other than the Building; (xiv) any fees, costs, and commissions incurred in
procuring or attempting to procure other tenants including, but not necessarily
limited to brokerage commissions, finders fees, attorney's fees and expenses,
entertainment costs and travel expenses;
3
(xv) any cost included in Operating Costs representing an amount paid to a
person, firm, corporation or other entity related to Landlord which is in excess
of the amount which would have been paid on an arms length basis in the absence
of such relationship; and (xvi) the cost of advertising for the Building.
(3) Tenant shall also pay its Proportionate
Share of any increase in Taxes for each year and partial year falling within the
Term over the Taxes for the fiscal year 2000. Tenant shall pay its Proportionate
Share of Taxes in the same manner as provided above for Additional Rent with
regard to Operating Costs. "TAXES" shall mean taxes, assessments, and
governmental charges whether federal, state, county or municipal, and whether
they be by taxing districts or authorities presently taxing or by others,
subsequently created or otherwise, and any other taxes and assessments
attributable to the Building (or its operation), excluding, however, penalties
and interest thereon, any inheritance, estate, succession, transfer, gift and
franchise taxes, and federal and state taxes on income (if the present method of
taxation changes so that in lieu of the whole or any part of any Taxes, there is
levied on Landlord a capital tax directly on the rents received therefrom or a
franchise tax, assessment, or charge based, in whole or in part, upon such rents
for the Building, then all such taxes, assessments, or charges, or the part
thereof so based, shall be deemed to be included within the term "TAXES" for
purposes hereof). Taxes shall include the costs of consultants retained in an
effort to lower taxes and all costs incurred in disputing any taxes or in
seeking to lower the tax valuation of the Building. For property tax purposes,
Tenant waives all rights to protest or appeal the appraised value of the
Premises, as well as the Building, and all rights to receive notices of
reappraisement.
(4) [INTENTIONALLY DELETED].
(5) By April 1 of each calendar year, or as soon
thereafter as practicable, Landlord shall furnish to Tenant a statement of
Operating Costs for the previous year, in each case adjusted as provided in
Section 4.(b)(6), and of the Taxes for the previous year (the "OPERATING COSTS
AND TAX STATEMENT"). If the Operating Costs and Tax Statement reveals that
Tenant paid more for Operating Costs than the actual amount for the year for
which such statement was prepared, or more than its actual share of Taxes for
such year, then Landlord shall promptly credit or reimburse Tenant for such
excess; likewise, if Tenant paid less than Tenant's actual Proportionate Share
of Additional Rent or share of Taxes due, then Tenant shall promptly pay
Landlord such deficiency. If Tenant disputes such Operating Cost and Tax
Statement as aforesaid, Tenant shall have the right to cause an accounting firm
not engaged on a contingent fee basis to audit Landlord's books used to
determine said Operating Cost and Tax Statement within ninety (90) days after
submission thereof by Landlord, which right Tenant agrees not to exercise more
than once annually. Access to said Operating Cost and Tax Statement books shall
be provided within thirty (30) days of Tenant's request. Any information
obtained by Tenant pursuant to the provisions of this Section 4(b)(5) shall be
treated as confidential and shall not be disclosed to anyone including without
limitation any other tenants of the Building (other than to Tenant's accounting
firm and/or Tenant's financial and legal consultants and lenders). If any such
audit discloses Tenant paid in excess of Tenant's proportionate share of
Operating Costs or Taxes, Landlord shall promptly reimburse such excess to
Tenant within thirty (30) days after Tenant's demand therefor. If any audit
discloses that
4
Landlord overstated Operating Costs and/or Taxes by more than five percent (5%),
Landlord shall promptly reimburse Tenant for its reasonable out-of-pocket costs
associated with such audit.
(6) With respect to any calendar year or partial
calendar year in which the
Building is not occupied to the extent of 95% of the rentable area thereof, the
Operating Costs for such period shall, for the purposes hereof, be increased to
the amount which would have been incurred (computed on an item-by-item basis)
had the Building been occupied to the extent of 95% of the rentable area thereof
through such calendar year.
(c) BILLING FOR ELECTRICITY. To the extent that the Premises
are separately metered for utilities, Tenant shall pay (as hereinafter
described) for the use of all electrical service to the Premises. Tenant shall
be billed directly by such utility company and Tenant agrees to pay each ▇▇▇▇
promptly in accordance with its terms, and upon default in making any such
payment, Landlord may pay such charges and collect the same from Tenant only
after Tenant's failure to pay such charges before they become delinquent. In the
event for any reason Tenant cannot be billed directly, Landlord shall forward
each ▇▇▇▇ received with respect to the Building to Tenant of which Tenant shall
pay its proportionate share (as reasonably determined by Landlord based upon
either square footage or level of use) promptly and in accordance with its
terms. If the Premises are not separately metered for any reason, Tenant shall
pay Landlord as further additional rent, in monthly installments at the time
prescribed for monthly installments of Basic Rent, a pro rata share of the cost
of electricity for the Premises as estimated by Landlord from time to time in
Landlord's reasonable discretion. As of the Commencement Date, the cost of
electricity estimated by Landlord shall be at the rate of $1.25 per rentable
square foot of the Premises per annum. Either party may require the purchase and
installation of a meter and/or sub-meter, at its sole cost and expense, for the
purpose of metering and/or sub-metering Tenant's consumption of electricity.
Tenant shall keep such meter and/or sub-meter serving the Premises and their
related installation equipment in good working order and repair.
5. DELINQUENT PAYMENT; HANDLING CHARGES. All past due payments required
of Tenant hereunder shall bear interest from the date due until paid at the
lesser of eighteen percent per annum or the maximum lawful rate of interest;
additionally, Landlord may charge Tenant a fee equal to 5% of the delinquent
payment to reimburse Landlord for its cost and inconvenience incurred as a
consequence of Tenant's delinquency. In no event, however, shall the charges
permitted under this Section 5 or elsewhere in this Lease, to the extent they
are considered to be interest under applicable Law, exceed the maximum lawful
rate of interest.
6. SECURITY DEPOSIT. On or prior to the date Landlord delivers the
Premises to Tenant, Tenant shall pay to Landlord the Security Deposit, which
shall be held by Landlord to secure Tenant's performance of its obligations
under this Lease. The Security Deposit is not an advance payment of Rent or a
measure or limit of Landlord's damages upon an Event of Default (defined in
Section 17). Landlord may, from time to time following an Event of Default and
without prejudice to any other remedy, use all or a part of the Security Deposit
to perform any obligation Tenant fails to perform hereunder. Following any such
application of the Security Deposit, Tenant shall pay to Landlord on demand the
amount so applied in order to restore the Security Deposit to
5
its original amount. Provided that Tenant has performed all of its obligations
hereunder, Landlord shall, within 30 days after the Term ends, return to Tenant
the portion of the Security Deposit which was not applied to satisfy Tenant's
obligations. The Security Deposit may be commingled with other funds, and no
interest shall be paid thereon. If Landlord transfers its interest in the
Premises and the transferee assumes Landlord's obligations under this Lease,
then Landlord shall transfer and assign the Security Deposit to the transferee
and Landlord thereafter shall have no further liability for the return of the
Security Deposit.
In lieu of a cash Security Deposit, simultaneously with the execution
and delivery of this Lease, Tenant may deliver to Landlord an irrevocable and
unconditional standby letter of credit made payable to Landlord, its successors
and assigns, in the sum of $1,500,000.00 (the "LETTER OF CREDIT"), in the form
of the sample letter of credit attached hereto as EXHIBIT I or in such other
form as is reasonably acceptable to Landlord, which shall secure the performance
by Tenant of all obligations on the part of Tenant hereunder. The issuer of the
Letter of Credit shall be a banking institution with at least a rating of A and
otherwise reasonably acceptable to Landlord. Although Landlord shall only have
the right to draw under the Letter of Credit as set forth herein, under the
terms of the Letter of Credit, the sole condition to Landlord's draw upon the
Letter of Credit shall be presentment to the issuer thereof, prior to or on the
expiration date, of a demand for payment. The Letter of Credit shall be
self-renewing from year to year during the Term of this Lease so as to expire no
earlier than thirty (30) days following the Lease expiration date and shall
contain such other customary terms as Landlord requires in its reasonable
discretion. It is agreed: (i) that the Letter of Credit may be drawn upon to
cure any Event of Default that may exist, without prejudice to any other remedy
or remedies which Landlord may have on account thereof, and upon Landlord's
demand, Tenant shall reimburse the issuer for the amount so drawn so that the
Letter of Credit will be restored to its original amount; (ii) subject to the
provisions of clause (iv) below, that the Letter of Credit may be drawn upon if
the Letter of Credit has not been extended or renewed without amendment at least
forty-five (45) days prior to any then-current expiration date thereof; (iii)
that if the rating of the issuer of the Letter of Credit at any time drops below
A, then, within sixty (60) days of Landlord's demand, Tenant shall replace the
Letter of Credit with another Letter of Credit in a form reasonably acceptable
to Landlord and with an issuer with a rating of at least an A and otherwise
reasonably acceptable to Landlord; Landlord may draw on the existing Letter of
Credit if, after Landlord requests that Tenant replace the Letter of Credit as
aforesaid, Landlord is not provided with a substitute Letter of Credit in a
form, and from an issuer, satisfactory to Landlord as provided above at least
fifteen (15) days prior to the then-current expiration date of the Letter of
Credit; (iv) if at any time, but in any event, at least sixty (60) days prior to
the expiration of the Letter of Credit, Tenant may seek Landlord's consent to
switch issuers of the Letter of Credit provided the prospective issuer has a
rating of at least an A and is otherwise reasonably acceptable to Landlord and
the new form of Letter of Credit satisfies the requirements of Landlord
hereunder and is otherwise reasonably acceptable to Landlord; Landlord may draw
on the existing Letter of Credit if, after Tenant requests Landlord's consent to
switch issuers as aforesaid, Landlord is not provided with a substitute Letter
of Credit in a form, and from an issuer, satisfactory to Landlord in its sole
and absolute discretion at least forty-five (45) days prior to the then-current
expiration date of the Letter of Credit; (v) that should the Premises be
conveyed by Landlord, the Letter of Credit or any portion thereof shall be
assigned to Landlord's grantee, and if the same be assigned
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as aforesaid, Tenant hereby releases Landlord from any and all liability with
respect to the Letter of Credit and its application or return, and Tenant agrees
to look to such grantee for such application or return, provided such grantee
assumes Landlord's obligations under this Lease (including this Section 6); and
(vi) that the Letter of Credit shall be returned to Tenant upon the later of (a)
thirty (30) days after the expiration of the Term or any renewal or extension
thereof, or (b) the date Tenant has vacated the Premises and surrendered
possession thereof to Landlord at the expiration of the Term or any extension
thereof as provided herein and has paid Landlord all sums due and owing under
this Lease.
If Tenant initially provides Landlord with a cash Security Deposit,
Tenant may replace such cash Security Deposit with a Letter of Credit in
accordance with the provisions of the preceding paragraph. Upon Landlord's
receipt of a Letter of Credit satisfying the terms and conditions of the
preceding paragraph, Landlord shall promptly return the cash Security Deposit to
Tenant.
For the purposes of this Section 6, a rating of at least A (or its
equivalent) shall mean that such issuer has a rating of at least A (or its
equivalent) from two (2) of the following four (4) rating agencies: Fitch
Investors Service, ▇▇▇▇▇'▇ Investor Service, Standard & Poor's Corporation and
Duff & ▇▇▇▇▇▇.
Notwithstanding any provisions of this Section 6 to the contrary, the
Security Deposit (or the applicable Letter of Credit) shall be reduced on
November 1 in each of 2001, 2002 and 2003 to $1,250,000.00, $1,000,000.00 and
$750,000.00, respectively, provided that on September 1 of each such calendar
year (i) the Lease is in full force and effect, (ii) no Event of Default exists,
(iii) no Event of Default has occurred during the Term, and (iv) Tenant has not
assigned this Lease to anyone other than a Permitted Transferee or to the
sublessee(s) consented to by Landlord in accordance with the provisions of this
Lease provided said sublessee(s) sublease(s), in the aggregate, occupy less than
twenty percent (20%) of the Premises for less than seventy-five percent (75%) of
the then-remaining Term. If on November 1 of any of the aforesaid calendar years
the Security Deposit (or the applicable Letter of Credit) shall not be reduced
because one or more of the conditions set forth in clauses (i), (ii) or (iii)
above cease to exist on September 1 of the applicable calendar year, the
Security Deposit (or applicable Letter of Credit) shall not be reduced during
any succeeding calendar year. If on November 1 of any of the aforesaid calendar
years the Security Deposit (or applicable Letter of Credit) shall not be reduced
because only the condition set forth in clause (iv) above (as opposed to the
conditions set forth in any of clauses (i), (ii) or (iii) above) ceases to exist
on September 1 of the applicable calendar year, the Security Deposit (or
applicable Letter of Credit) shall be so reduced on November 1 of the next
succeeding calendar year, provided the conditions set forth in clauses (i),
(ii), (iii) and (iv) above exist on November 1 of the next succeeding calendar
year, and provided further that the Security Deposit (or applicable Letter of
Credit) shall be reduced only by the amount which the Security Deposit (or
applicable Letter of Credit) would have been reduced in the preceding calendar
year if all of the conditions set forth in clauses (i), (ii), (iii) and (iv)
above existed. If the Security Deposit (or applicable Letter of Credit) is
reduced pursuant to the foregoing provisions, Landlord shall return the amount
of each such applicable reduction if Tenant paid the Security Deposit in cash or
Tenant may replace and/or amend the Letter of Credit accordingly.
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7. LANDLORD'S OBLIGATIONS
(a) SERVICES. Landlord shall furnish to Tenant (1) water at
those points of supply provided for general use of tenants of the Building; (2)
heated and refrigerated air conditioning ("HVAC") as appropriate, at such
temperatures and in such amounts as are standard for comparable buildings in the
vicinity of the Building; (3) janitorial service to the Premises on weekdays,
other than holidays, for Building-standard installations (as more specifically
set forth in the janitorial specifications attached hereto as EXHIBIT K) and
such window washing as may from time to time be reasonably required; (4)
elevators for ingress and egress to the floor on which the Premises are located,
in common with other tenants, provided that Landlord may reasonably limit the
number of operating elevators during non-business hours and holidays; and (5)
electrical current during normal business hours for equipment that does not
require more than 110 volts and whose electrical energy consumption does not
exceed normal office usage. Landlord shall maintain the common areas of the
Building in reasonably good order and condition, except for damage caused by a
Tenant Party's gross negligence or wilful misconduct. If Tenant desires any of
the services specified in Section 7.(a)(2) at any time other than between 8:00
a.m. and 6:00 p.m. on weekdays (excluding holidays), then such services shall be
supplied to Tenant upon the written request of Tenant delivered to Landlord
before 3:00 p.m. on the business day preceding such extra usage, and Tenant
shall pay to Landlord the cost of such services within ten days after Landlord
has delivered to Tenant an invoice therefor. The costs incurred by Landlord in
providing after-hour HVAC service to Tenant shall include costs for electricity,
water, sewage, water treatment, labor, metering, filtering, and maintenance
reasonably allocated by Landlord to providing such service.
(b) EXCESS UTILITY USE. Landlord shall not be required to
furnish electrical current for equipment that requires more than 110 volts or
other equipment whose electrical energy consumption exceeds normal office usage.
If Tenant's requirements for or consumption of electricity exceed the
electricity to be provided by Landlord as described in Section 7.(a), Landlord
shall, at Tenant's expense, make reasonable efforts to supply such service
through the then-existing feeders and risers serving the Building and the
Premises, and Tenant shall pay to Landlord the cost of such service within ten
days after Landlord has delivered to Tenant an invoice therefor. Landlord may
determine the amount of such additional consumption and potential consumption by
any verifiable method, including installation of a separate meter in the
Premises installed, maintained, and read by Landlord, at Tenant's expense.
Tenant shall not install any electrical equipment requiring special wiring or
requiring voltage in excess of 110 volts or otherwise exceeding Building
capacity unless approved in advance by Landlord. The use of electricity in the
Premises shall not exceed the capacity of existing feeders and risers to or
wiring in the Premises. Any risers or wiring required to meet Tenant's excess
electrical requirements shall, upon Tenant's written request, be installed by
Landlord, at Tenant's cost, if, in Landlord's judgment, the same are necessary
and shall not cause permanent damage to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, repairs, or expenses, or interfere with or disturb other tenants of
the Building. If Tenant uses machines or equipment in the Premises which affect
the temperature otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air conditioning units
or other supplemental equipment in the Premises, and the cost thereof, including
the cost of installation, operation, use,
8
and maintenance, shall be paid by Tenant to Landlord within ten days after
Landlord has delivered to Tenant an invoice therefor.
(c) RESTORATION OF SERVICES; ABATEMENT. Landlord shall use
reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render Landlord liable for
any damages caused thereby, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of Tenant's obligations hereunder. If, however,
Tenant is prevented from using the Premises for more than 10 consecutive
business days because of the unavailability of any such service and such
unavailability was not caused by a Tenant Party, then Tenant shall, as its
exclusive remedy be entitled to a reasonable abatement of Rent for each
consecutive day (after such 10-day period) that Tenant is so prevented from
using the Premises.
8. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.
(a) IMPROVEMENTS; ALTERATIONS. Improvements to the Premises
shall be installed at Tenant's expense only in accordance with plans and
specifications which have been previously submitted to and approved in writing
by Landlord. No alterations or physical additions in or to the Premises may be
made without Landlord's prior written consent, which shall not be unreasonably
withheld, delayed or conditioned; however, Landlord may withhold and/or
condition its consent to any alteration or addition that would affect the
Building's structure or its HVAC, plumbing, electrical, or mechanical systems.
Tenant shall not paint or install lighting or decorations, signs, window or door
lettering, or advertising media of any type on or about the Premises without the
prior written consent of Landlord, which shall not be unreasonably withheld or
delayed; however, Landlord may withhold its consent to any such painting or
installation which would affect the appearance of the exterior of the Building
or of any common areas of the Building. All alterations, additions, and
improvements shall be constructed, maintained, and used by Tenant, at its risk
and expense, in accordance with all Laws; Landlord's approval of the plans and
specifications therefor shall not be a representation by Landlord that such
alterations, additions, or improvements comply with any Law. Notwithstanding the
foregoing, Tenant may from time to time make alterations, additions or
improvements to the Premises, without the consent of Landlord and without
Landlord's approval of plans, provided: (i) the cost thereof shall not exceed
Twenty-Five Thousand Dollars ($25,000) in the aggregate in any consecutive
twelve-month period; (ii) Tenant shall, prior to commencing any such
alterations, additions and/or improvements in the Premises in connection
therewith, furnish Landlord with a complete set of plans and specifications for
any such alterations, additions and/or improvements; (iii) such alterations,
additions and/or improvements shall not involve or affect the exterior or the
structure of the Building or any of the HVAC, mechanical, electrical, plumbing
or fire safety systems of the Building; and (iv) Tenant shall comply with all
requirements of this Lease with respect to such alterations, additions and/or
improvements other than obtaining the prior approval of Landlord.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the Premises
in a clean, safe, and operable condition, and shall not permit or allow to
remain any waste or damage to any portion of the Premises other than reasonable
wear and tear. Tenant shall repair or replace, subject to
9
Landlord's direction and supervision, any damage to the Building caused by a
Tenant Party. If Tenant fails to make such repairs or replacements within 30
days after the occurrence of such damage, then Landlord may make the same at
Tenant's cost. If any such damage occurs outside of the Premises, then Landlord
may elect to repair such damage at Tenant's expense, rather than having Tenant
repair such damage. The cost of all repair or replacement work performed by
Landlord under this Section 8 shall be paid by Tenant to Landlord within ten
days after Landlord has invoiced Tenant therefor.
(c) PERFORMANCE OF WORK. All work described in this Section 8
shall be performed only by Landlord or by contractors and subcontractors
approved in writing by Landlord (which approval shall not be unreasonably
withheld, delayed or conditioned). Tenant shall cause all contractors and
subcontractors to procure and maintain insurance coverage naming Landlord as an
additional insured against such risks, in such amounts, and with such companies
as Landlord may reasonably require. All such work shall be performed in
accordance with all applicable Laws and in a good and workmanlike manner so as
not to damage the Building (including the Premises, the structural elements, and
the plumbing, electrical lines, or other utility transmission facility). All
such work which may affect the Building's HVAC, electrical, plumbing, other
mechanical systems, or structural elements must be approved by the Building's
engineer of record, at Tenant's expense and, at Landlord's election, must be
performed by Landlord's usual contractor for such work.
Tenant shall provide to Landlord the names and addresses of all
contractors and subcontractors and copies of contracts for all contractors and
subcontractors, and upon completion of any work shall promptly furnish Landlord
with full and final waivers of lien covering all labors and materials included
in the work in question.
(d) MECHANIC'S LIENS. Tenant shall not permit any mechanic's
liens to be filed against the Premises or the Building for any work performed,
materials furnished, or obligation incurred by or at the request of Tenant. If
such a lien is filed, then Tenant shall, within ten days after Landlord has
delivered notice of the filing thereof to Tenant, either pay the amount of the
lien or diligently contest such lien and deliver to Landlord a bond or other
security reasonably satisfactory to Landlord. If Tenant fails to timely take
either such action, then Landlord may pay the lien claim, and any amounts so
paid, including expenses and interest, shall be paid by Tenant to Landlord
within ten days after Landlord has invoiced Tenant therefor.
9. USE. Tenant shall occupy and use the Premises only for the Permitted
Use and uses ancillary thereto, and for no other purposes, and shall comply with
all Laws relating to the use, condition, access to, and occupancy of the
Premises. The population density within the Premises as a whole shall at no time
exceed one person for each 200 rentable square feet in the Premises. Tenant
shall not conduct second or third shift operations within the Premises; however,
Tenant may use the Premises after normal business hours, so long as Tenant is
not generally conducting business from the Premises after normal business hours.
The Premises shall not be used for any use which is disreputable, creates
extraordinary fire hazards, or results in an increased rate of insurance on the
Building or its contents, or for the storage of any Hazardous Materials (except
in accordance with Section 25.(t) below). If, because of a Tenant Party's acts,
the rate of insurance on the Building or
10
its contents increases, then Tenant shall pay to Landlord the amount of such
increase on demand, and acceptance of such payment shall not waive any of
Landlord's other rights. Tenant shall conduct its business and control each
other Tenant Party so as not to create any nuisance or unreasonably interfere
with other tenants or Landlord in its management of the Building.
10. ASSIGNMENT AND SUBLETTING
(a) TRANSFERS. Except as provided in Section 10.(g), Tenant
shall not, without the prior written consent of Landlord, (1) assign, transfer,
or encumber this Lease or any estate or interest herein, whether directly or by
operation of law, (2) permit any other entity to become Tenant hereunder by
merger, consolidation, or other reorganization, (3) if Tenant is an entity other
than a corporation whose stock is publicly traded, permit the transfer of an
ownership interest in Tenant so as to result in a change in the current control
of Tenant (except that Tenant may permit the transfer of an ownership interest
in Tenant that results in a change in the current control of Tenant if such
change in control occurs as a result of an initial public offering of shares of
Tenant), (4) sublet any portion of the Premises, (5) grant any license,
concession, or other right of occupancy of any portion of the Premises, or (6)
permit the use of the Premises by any parties other than Tenant (any of the
events listed in Section 10.(a)(1) through 10.(a)(6) being a "TRANSFER").
(b) CONSENT STANDARDS. Landlord shall not unreasonably
withhold its consent to any assignment or subletting of the Premises, provided
that the proposed transferee is creditworthy,
has a good reputation in the business community, will use the Premises for the
Permitted Use (thus, excluding, without limitation, uses for credit processing
and telemarketing) and will not use the Premises in any manner that would
conflict with any exclusive use agreement or other similar agreement entered
into by Landlord with any other tenant of the Building (provided, however, no
present or future agreement shall prohibit the use of the Premises for the
Permitted Use, is not a governmental entity, or subdivision or agency thereof,
and is not another occupant of the Building or person or entity with whom
Landlord is negotiating to lease space in the Building; otherwise, Landlord may
withhold its consent in its sole discretion.
(c) REQUEST FOR CONSENT. If Tenant requests Landlord's consent
to a Transfer, then Tenant shall provide Landlord with a written description of
all terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and other credit
information reasonably required to determine the creditworthiness of a proposed
transferee; and general references sufficient to enable Landlord to determine
the proposed transferee's creditworthiness and character. Concurrently with
Tenant's notice of any request for consent to a Transfer, Tenant shall pay to
Landlord a fee of $750 to defray Landlord's expenses in reviewing such request,
and Tenant shall also reimburse Landlord immediately upon request for its
reasonable attorneys' fees incurred in connection with considering any request
for consent to a Transfer.
(d) CONDITIONS TO CONSENT. If Landlord consents to a proposed
Transfer, then the proposed transferee shall deliver to Landlord a written
agreement whereby it expressly assumes
11
Tenant's obligations hereunder; however, any transferee of less than all of the
space in the Premises shall be liable only for obligations under this Lease that
are properly allocable to the space subject to the Transfer for the period of
the Transfer. No Transfer shall release Tenant from its obligations under this
Lease, but rather Tenant and its transferee shall be jointly and severally
liable therefor. Landlord's consent to any Transfer shall not waive Landlord's
rights as to any subsequent Transfers. If an Event of Default occurs while the
Premises or any part thereof are subject to a Transfer, then Landlord, in
addition to its other remedies, may collect directly from such transferee all
rents becoming due to Tenant and apply such rents against Rent. Tenant
authorizes its transferees to make payments of rent directly to Landlord upon
receipt of notice from Landlord to do so. Tenant shall pay for the cost of any
demising walls or other improvements necessitated by a proposed subletting or
assignment.
(e) CANCELLATION. Landlord may, within 30 days after
submission of Tenant's written request for Landlord's consent to an assignment
or subletting (except for an assignment or sublease to a Permitted Transferee),
cancel this Lease as to the portion of the Premises proposed to be sublet (if
the sublease is for more than twenty percent (20%) of the Premises and for more
than seventy-five percent (75%) of the then-remaining Term) or assigned as of
the date the proposed Transfer is to be effective. If Landlord cancels this
Lease as to any portion of the Premises, then this Lease shall cease for such
portion of the Premises and Tenant shall pay to Landlord all Rent accrued
through the cancellation date relating to the portion of the Premises covered by
the proposed Transfer. Thereafter, Landlord may lease such portion of the
Premises to the prospective transferee (or to any other person) without
liability to Tenant.
(f) ADDITIONAL COMPENSATION. Tenant shall pay to Landlord,
immediately upon receipt thereof, fifty percent (50%) of the excess of (1) all
compensation received by Tenant for a Transfer less the costs reasonably
incurred by Tenant with unaffiliated third parties in connection with such
Transfer (i.e., brokerage commissions, legal fees, tenant finish work, and the
like) over (2) the Rent allocable to the portion of the Premises covered
thereby.
(g) PERMITTED TRANSFERS. Notwithstanding Section 10.(a),
Tenant may Transfer all or part of its interest in this Lease or all or part of
the Premises (a "PERMITTED TRANSFER") to the following types of entities (a
"PERMITTED TRANSFEREE") without the written consent of Landlord:
(1) an Affiliate of Tenant;
(2) any corporation, limited partnership, limited
liability partnership, limited liability company or other business
entity in which or with which Tenant, or its corporate successors or
assigns, is merged or consolidated, in accordance with applicable
statutory provisions governing merger and consolidation of business
entities, so long as (A) Tenant's obligations hereunder are assumed by
the entity surviving such merger or created by such consolidation; and
(B) the Tangible Net Worth of the surviving or created entity is not
less than the greater of (i) the Tangible Net Worth of Tenant as of the
date hereof, or (ii) the Tangible Net Worth of Tenant at the time of
any such Permitted Transfer; or
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(3) any corporation, limited partnership, limited
liability partnership, limited liability company or other business
entity acquiring all or substantially all of Tenant's stock or assets
if such entity's Tangible Net Worth after such acquisition is not less
than the greater of (i) the Tangible Net Worth of Tenant as of the date
hereof, or (ii) the Tangible Net Worth of Tenant at the time of any
such Permitted Transfer.
Tenant shall promptly notify Landlord of any such Permitted Transfer.
Tenant shall remain liable for the performance of all of the obligations of
Tenant hereunder, or if Tenant no longer exists because of a merger,
consolidation, or acquisition, the surviving or acquiring entity shall expressly
assume in writing the obligations of Tenant hereunder. Additionally, the
Permitted Transferee shall comply with all of the terms and conditions of this
Lease, including the Permitted Use, and the use of the Premises by the Permitted
Transferee may not violate any other agreements affecting the Premises, the
Building, Landlord or other tenants of the Building. At least 30 days after the
effective date of any Permitted Transfer, Tenant agrees to furnish Landlord with
copies of the instrument effecting any of the foregoing Transfers and
documentation establishing Tenant's satisfaction of the requirements set forth
above applicable to any such Transfer. The occurrence of a Permitted Transfer
shall not waive Landlord's rights as to any subsequent Transfers. "TANGIBLE NET
WORTH" means the excess of total assets over total liabilities, in each case as
determined in accordance with generally accepted accounting principles
consistently applied ("GAAP"), excluding, however, from the determination of
total assets all assets which would be classified as intangible assets under
GAAP including, without limitation, goodwill, licenses, patents, trademarks,
trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted
Transferee to any person other than a Permitted Transferee shall be subject to
Landlord's prior written consent (which Landlord may grant or deny in its sole
discretion).
11. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY
(a) INSURANCE. Tenant shall maintain throughout the Term the
following insurance policies: (1) commercial general liability insurance in
amounts of $3,000,000 per occurrence or such other amounts as Landlord may from
time to time reasonably require, insuring Tenant, Landlord, Landlord's agents
and their respective Affiliates against all liability for injury to or death of
a person or persons or damage to property arising from the use and occupancy of
the Premises, (2) insurance covering the full value of Tenant's property and
improvements, and other property (including property of others) in the Premises,
(3) contractual liability insurance sufficient to cover Tenant's indemnity
obligations hereunder (but only if such contractual liability insurance is not
already included in Tenant's commercial general liability insurance policy), (4)
worker's compensation insurance, containing a waiver of subrogation endorsement
reasonably acceptable to Landlord, and (5) business interruption insurance.
Tenant's insurance shall provide primary coverage to Landlord when any policy
issued to Landlord provides duplicate or similar coverage, and in such
circumstance Landlord's policy will be excess over Tenant's policy. Tenant shall
furnish to Landlord certificates of such insurance and such other evidence
reasonably satisfactory to Landlord of the maintenance of all insurance
coverages required hereunder, and Tenant shall use reasonable efforts to obtain
a written obligation on the part of each insurance company to notify Landlord at
least 30 days before cancellation or a material change of any such insurance
policies.
13
All such insurance policies shall be in form, and issued by companies,
reasonably satisfactory to Landlord.
(b) WAIVER OF NEGLIGENCE; NO SUBROGATION. Landlord and Tenant
each waives any claim it might have against the other for any injury to or death
of any person or persons or damage to or theft, destruction, loss, or loss of
use of any property (a "LOSS"), to the extent the same is insured against under
any insurance policy that covers the Building, the Premises, Landlord's or
Tenant's fixtures, personal property, leasehold improvements, or business, or is
required to be insured against under the terms hereof, REGARDLESS OF WHETHER THE
NEGLIGENCE OF THE OTHER PARTY CAUSED SUCH LOSS; however, Landlord's waiver shall
not include any deductible amounts on insurance policies carried by Landlord.
Each party shall cause its insurance carrier to endorse all applicable policies
waiving the carrier's rights of recovery under subrogation or otherwise against
the other party.
(c) INDEMNITY. Subject to Section 11.(b), Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorneys' fees) arising from (1)
any Loss arising from any occurrence on the Premises (other than any Loss
arising out of a breach of Tenant's obligations under Section 25.(t), which
shall be subject to the indemnity in such section) or (2) Tenant's failure to
perform its obligations under this Lease, except to the extent caused by the
negligence or fault of Landlord or its agents. This indemnity provision shall
survive termination or expiration of this Lease. If any proceeding is filed for
which indemnity is required hereunder, Tenant agrees, upon request therefor, to
defend the indemnified party in such proceeding at its sole cost utilizing
counsel satisfactory to the indemnified party.
(d) LANDLORD'S INSURANCE. Landlord shall carry throughout the
Term of this Lease (i) fire and extended coverage insurance on the Building for
at least 90% of the full replacement value, and (ii) commercial general
liability insurance with respect to all common areas of the Building.
12. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE
(a) SUBORDINATION. This Lease shall be subordinate to any deed
of trust, mortgage, or other security instrument, or any ground lease, master
lease, or primary lease, that now or hereafter covers all or any part of the
Premises (the mortgagee under any such mortgage or the lessor under any such
lease is referred to herein as a "LANDLORD'S MORTGAGEE"). Any Landlord's
Mortgagee may elect, at any time, unilaterally, to make this Lease superior to
its mortgage, ground lease, or other interest in the Premises by so notifying
Tenant in writing.
(b) ATTORNMENT. Tenant shall attorn to any party succeeding to
Landlord's interest in the Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease, or otherwise, upon
such party's request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
14
(c) NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek to
enforce any remedy it may have for any default on the part of Landlord without
first giving written notice by certified mail, return receipt requested,
specifying the default in reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant, and affording such Landlord's Mortgagee a
reasonable opportunity to perform Landlord's obligations hereunder.
(d) LANDLORD'S MORTGAGEE'S PROTECTION PROVISIONS. If
Landlord's Mortgagee shall succeed to the interest of Landlord under this Lease,
Landlord's Mortgagee shall not be: (1) liable for any act or omission of any
prior lessor (including Landlord); (2) bound by any rent or additional rent or
advance rent which Tenant might have paid for more than the current month to any
prior lessor (including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; (3) bound by any security or advance
rental deposit made by Tenant which is not delivered or paid over to Landlord's
Mortgagee and with respect to which Tenant shall look solely to Landlord for
refund or reimbursement; (4) bound by any termination, amendment or modification
of this Lease made without Landlord's Mortgagee's consent and written approval,
except for those terminations, amendments and modifications permitted to be made
by Landlord without Landlord's Mortgagee's consent pursuant to the terms of the
loan documents between Landlord and Landlord's Mortgagee; (5) subject to the
defenses which Tenant might have against any prior lessor (including Landlord)
except as expressly provided for in this Lease; and (6) subject to the offsets
which Tenant might have against any prior lessor (including Landlord) except for
those offset rights which (A) are expressly provided in this Lease, (B) relate
to periods of time following the acquisition of the Building by Landlord's
Mortgagee, and (C) Tenant has provided written notice to Landlord's Mortgagee
and provided Landlord's Mortgagee a reasonable opportunity to cure the event
giving rise to such offset event. Landlord's Mortgagee shall have no liability
or responsibility under or pursuant to the terms of this Lease or otherwise
after it ceases to own an interest in the Building. Nothing in this Lease shall
be construed to require Landlord's Mortgagee to see to the application of the
proceeds of any loan, and Tenant's agreements set forth herein shall not be
impaired on account of any modification of the documents evidencing and securing
any loan.
(e) SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT.
Simultaneously upon Tenant's and Landlord's respective execution of this Lease,
Tenant and Landlord shall execute a Subordination, Non-Disturbance and
Attornment Agreement in the form attached hereto as Exhibit L. Landlord shall
return a fully executed Subordination, Non-disturbance and Attornment Agreement
in the form attached hereto as EXHIBIT L from the Indenture Trustee named
therein as soon as reasonably possible. Landlord shall use reasonable efforts to
obtain a so-called "subordination, nondisturbance and attornment agreement" from
any future Landlord's Mortgagee.
13. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations of the Building which are attached hereto as EXHIBIT C. Landlord
may, from time to time, change such rules and regulations for the safety, care,
or cleanliness of the Building and related facilities, provided that such
changes are applicable to all tenants of the Building and will not unreasonably
15
interfere with Tenant's use of the Premises. Tenant shall be responsible for the
compliance with such rules and regulations by each Tenant Party.
To the extent there are an inconsistencies between the
provisions of this Lease and the rules and regulations of the Building, the
provisions of this Lease shall control. Notwithstanding any provisions of the
rules and regulations to the contrary set forth on EXHIBIT C: (a) Tenant may
hang pictures for decorative purposes only on the walls of the Premises, but
shall use reasonable efforts to minimize any damage caused thereto; (b) Tenant
may install four (4) snack and soda vending machines within the Premises; and
(c) Tenant may have ice and mineral and/or bottled water delivered to the
Premises by reputable vendors during normal business hours.
14. CONDEMNATION.
(a) TOTAL TAKING. If the entire Building or Premises are taken
by right of eminent domain or conveyed in lieu thereof (a "TAKING"), this Lease
shall terminate as of the date of the Taking.
(b) PARTIAL TAKING - TENANT'S RIGHTS. If any part of the
Building becomes subject to a Taking and such Taking will prevent Tenant from
conducting its business in the Premises in a manner reasonably comparable to
that conducted immediately before such Taking for a period of more than 180
days, then Tenant may terminate this Lease as of the date of such Taking by
giving written notice to Landlord within 30 days after the Taking, and Rent
shall be apportioned as of the date of such Taking. If Tenant does not terminate
this Lease, then Rent shall be abated on a proportionate basis as to that
portion of the Premises rendered untenantable by the Taking.
(c) PARTIAL TAKING - LANDLORD'S RIGHTS. If any material
portion, but less than all, of the Building becomes subject to a Taking, or if
Landlord is required to pay any of the proceeds received for a Taking to a
Landlord's Mortgagee, then Landlord may terminate this Lease by delivering
written notice thereof to Tenant within 30 days after such Taking, and Rent
shall be apportioned as of the date of such Taking. If Landlord does not so
terminate this Lease, then this Lease will continue, but if any portion of the
Premises has been taken, Rent shall ▇▇▇▇▇ as provided in the last sentence of
Section 14.(b).
(d) AWARD. If any Taking occurs, then Landlord shall receive
the entire award or other compensation for the land on which the Building is
situated, the Building, and other improvements taken, and Tenant may separately
pursue a claim (to the extent it will not reduce Landlord's award) against the
condemnor for the value of Tenant's personal property which Tenant is entitled
to remove under this Lease, moving costs, loss of business, and other claims it
may have.
16
15. FIRE OR OTHER CASUALTY
(a) REPAIR ESTIMATE. If the Premises or the Building are
damaged by fire or other casualty (a "CASUALTY"), Landlord shall, within 90 days
after such Casualty, deliver to Tenant a good faith estimate (the "DAMAGE
NOTICE") of the time needed to repair the damage caused by such Casualty.
(b) LANDLORD'S AND TENANT'S RIGHTS. If a material portion of
the Premises or the Building is damaged by Casualty such that Tenant is
prevented from conducting its business in the Premises in a manner reasonably
comparable to that conducted immediately before such Casualty and Landlord
estimates that the damage caused thereby cannot be repaired within 210 days
after the Casualty, then Tenant may terminate this Lease by delivering written
notice to Landlord of its election to terminate within 30 days after the Damage
Notice has been delivered to Tenant. If Tenant does not so timely terminate this
Lease, then (subject to Section 15.(c)) Landlord shall repair the Building or
the Premises, as the case may be, as provided below, and Rent for the portion of
the Premises rendered untenantable by the damage shall be abated on a
proportionate basis from the date of damage until the completion of the repair,
unless a Tenant Party caused such damage, in which case, Tenant shall continue
to pay Rent without abatement.
(c) LANDLORD'S RIGHTS. If a Casualty damages a material
portion of the Building, and Landlord makes a good faith determination that
restoring the Premises would be uneconomical, or if Landlord is required to pay
any insurance proceeds arising out of the Casualty to a Landlord's Mortgagee,
then Landlord may terminate this Lease by giving written notice of its election
to terminate within 30 days after the Damage Notice has been delivered to
Tenant, and Basic Rent and Additional Rent shall be abated as of the date of the
Casualty.
(d) REPAIR OBLIGATION. If neither party elects to terminate
this Lease following a Casualty, then Landlord shall, within a reasonable time
after such Casualty, begin to repair the Building and the Premises and shall
proceed with reasonable diligence to restore the Building and Premises to
substantially the same condition as they existed immediately before such
Casualty; however, Landlord shall not be required to repair or replace any of
the furniture, equipment, fixtures, and other improvements (with exception of
the improvements or a portion of the improvements, as the case may be, which are
constructed with the Construction Allowance) which may have been placed by, or
at the request of, Tenant or other occupants in the Building or the Premises,
and Landlord's obligation to repair or restore the Building or Premises shall be
limited to the extent of the insurance proceeds actually received by Landlord
for the Casualty in question. If the Premises are not substantially restored
within 210 days after a Casualty (notwithstanding anything contained in Section
25(c) to the contrary, such 210 day period may be extended for a period not to
exceed 180 additional days due to force majeure events), Tenant shall have the
right to terminate this Lease upon at least 30 days prior written notice;
provided, however, if Landlord substantially restores the Premises within said
thirty-day period, Tenant's termination notice shall be null and void and the
provisions of this Lease shall remain in full force and effect.
17
16. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture, or fixtures placed by
Tenant in the Premises. If any taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and Landlord elects to pay the
same, or if the assessed value of Landlord's property is increased by inclusion
of such personal property, furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to Landlord, upon written
demand, the part of such taxes for which Tenant is primarily liable hereunder;
however, Landlord shall not pay such amount if Tenant notifies Landlord that it
will contest the validity or amount of such taxes before Landlord makes such
payment, and thereafter diligently proceeds with such contest in accordance with
law and if the non-payment thereof does not pose a threat of loss or seizure of
the Building or interest of Landlord therein or impose any fee or penalty
against Landlord.
17. EVENTS OF DEFAULT. Each of the following occurrences shall be an
"EVENT OF DEFAULT":
(a) Tenant's failure to pay Rent within five days after
Landlord has delivered notice to Tenant that the same is due; however, an Event
of Default shall occur hereunder without any obligation of Landlord to give any
notice if Landlord has given Tenant written notice under this Section 17.(a) on
two occasions during the twelve (12) month interval preceding such failure by
Tenant;
(b) For more than sixty (60) consecutive days or more than
sixty (60) days in a one hundred fifty (150) day period, Tenant abandons the
Premises or any substantial portion thereof;
(c) Tenant fails to comply with the Permitted Use set forth
herein and the continuance of such failure for a period of five (5) days after
Landlord has delivered to Tenant written notice thereof;
(d) Tenant fails to provide any estoppel certificate within
the time period required under Section 25.(e) and such failure shall continue
for five days after written notice thereof from Landlord to Tenant;
(e) Tenant's failure to perform, comply with, or observe any
other agreement or obligation of Tenant under this Lease and the continuance of
such failure for a period of more than 30 days after Landlord has delivered to
Tenant written notice thereof; provided that if the default is of such a nature
that it may not be reasonably cured within 30 days, then no Event of Default
shall occur hereunder if Tenant commences curing within such 30 day period and
thereafter diligently and continuously pursues such cure to completion within a
period of not more than 60 days after the delivery of such notice; and
(f) The filing of a petition by or against Tenant (the term
"TENANT" shall include, for the purpose of this Section 17.(f), any guarantor of
Tenant's obligations hereunder) (1) in any bankruptcy or other insolvency
proceeding; (2) seeking any relief under any state or federal debtor relief law;
(3) for the appointment of a liquidator or receiver for all or substantially all
of Tenant's
18
property or for Tenant's interest in this Lease; or (4) for the reorganization
or modification of Tenant's capital structure; however, if such a petition is
filed against Tenant, then such filing shall not be an Event of Default unless
Tenant fails to have the proceedings initiated by such petition dismissed within
90 days after the filing thereof.
17A. LANDLORD'S DEFAULT. Landlord shall in no event be in default in
the performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within 30 days after
notice by Tenant to Landlord, which notice shall specify the nature of such
failure of performance; provided, however, that Landlord shall not be in default
hereunder if any such failure of performance is of such a nature that Landlord
cannot reasonably remedy the same within such 30 day period, Landlord commences
within such 30 day period to cure such failure of performance and thereafter in
good faith and with diligence and continuity prosecutes such cure to completion,
subject to unavoidable delays.
18. REMEDIES. Upon an Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder, take any of the
following actions:
(a) Terminate this Lease by giving Tenant written notice
thereof, in which event Tenant shall pay to Landlord the sum of (1) all Rent
accrued hereunder through the date of termination, (2) all amounts due under
Section 19.(a), and (3) an amount equal to (A) the total Rent that Tenant would
have been required to pay for the remainder of the Term plus Landlord's estimate
of aggregate expenses of reletting to the Premises, discounted to present value
at a per annum rate equal to the "Prime Rate" as published on the date this
Lease is terminated by The Wall Street Journal, Northeast Edition, in its
listing of "Money Rates" minus one percent, minus (B) the then present fair
rental rate value of the Premises for such period, similarly discounted;
(b) Terminate Tenant's right to possess the Premises without
terminating this Lease by giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (1) all Rent and other amounts accrued
hereunder to the date of termination of possession, (2) all amounts due from
time to time under Section 19.(a), and (3) all Rent and other net sums required
hereunder to be paid by Tenant during the remainder of the Term as they would
become due under the terms of this Lease, diminished by any net sums thereafter
received by Landlord through reletting the Premises during such period, after
deducting all out-of-pocket costs incurred by Landlord in reletting the
Premises. Landlord shall use reasonable efforts to relet the Premises on such
terms as Landlord in its sole discretion may determine (including a term
different from the Term, rental concessions, and alterations to, and improvement
of, the Premises); however, Landlord shall not be obligated to relet the
Premises before leasing other portions of the Building. Landlord shall not be
liable for, nor shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring an action against Tenant to
collect amounts due by Tenant, without the necessity of Landlord's waiting until
the expiration of the Term. Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this
19
Lease, all actions taken by Landlord to dispossess or exclude Tenant from the
Premises shall be deemed to be taken under this Section 18.(b). If Landlord
elects to proceed under this Section 18.(b), it may at any time elect to
terminate this Lease under Section 18.(a); or
(c) Additionally, without notice, Landlord may alter locks or
other security devices at the Premises to deprive Tenant of access thereto, and
Landlord shall not be required to provide a new key or right of access to
Tenant.
Any and all remedies set forth in this Lease: (i) shall be in addition
to any and all other remedies Landlord may have at law or in equity; (ii) shall
be cumulative; and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future. Notwithstanding the foregoing, Landlord shall only recover its
damages allowed hereunder once.
19. PAYMENT BY TENANT; NON-WAIVER
(a) PAYMENT BY TENANT. Upon any Event of Default, Tenant shall
pay to Landlord all costs incurred by Landlord (including court costs and
reasonable attorneys' fees and expenses) in (1) obtaining possession of the
Premises, (2) removing and storing Tenant's or any other occupant's property,
(3) repairing, restoring, altering, remodeling, or otherwise putting the
Premises into condition acceptable to a new tenant, (4) if Tenant is
dispossessed of the Premises and this Lease is not terminated, reletting all or
any part of the Premises (including brokerage commissions, cost of tenant finish
work, and other costs incidental to such reletting), (5) performing Tenant's
obligations which Tenant failed to perform, and (6) enforcing, or advising
Landlord of, its rights, remedies, and recourses arising out of the Event of
Default. To the full extent permitted by law, Landlord and Tenant agree the
federal and state courts of the state in which the Premises are located shall
have exclusive jurisdiction over any matter relating to or arising from this
Lease and the parties' rights and obligations under this Lease.
(b) NO WAIVER. Landlord's acceptance of Rent following an
Event of Default shall not waive Landlord's rights regarding such Event of
Default. No waiver by Landlord or Tenant of any violation or breach of any of
the terms contained herein shall waive Landlord's or Tenant's rights regarding
any future violation of such term. Landlord's acceptance of any partial payment
of Rent shall not waive Landlord's rights with regard to the remaining portion
of the Rent that is due, regardless of any endorsement or other statement on any
instrument delivered in payment of Rent or any writing delivered in connection
therewith; accordingly, Landlord's acceptance of a partial payment of Rent shall
not constitute an accord and satisfaction of the full amount of the Rent that is
due.
20. LANDLORD'S LIEN. Intentionally omitted, provided that the deletion
of this Section shall not be construed to be a waiver of Landlord's lien rights
provided by law, if any.
20
21. SURRENDER OF PREMISES. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord, except upon expiration of this Lease or earlier termination by Tenant
pursuant to the provisions of this Lease. At the expiration or termination of
this Lease, Tenant shall deliver to Landlord the Premises with all improvements
located therein in good repair and condition, free of Hazardous Materials placed
on the Premises during the Term, broom-clean, reasonable wear and tear (and
condemnation and Casualty damage not caused by Tenant, as to which Sections 14
and 15 shall control) excepted, and shall deliver to Landlord all keys to the
Premises. Provided that Tenant has performed all of its obligations hereunder,
Tenant shall remove all trade fixtures which have not become part of the
Premises, equipment, furniture, and personal property placed in the Premises by
Tenant, and all such alterations, additions, improvements and wiring which, when
approved by Landlord, were required to be removed from the Premises at the
earlier expiration or termination of the Term of this Lease, and may remove all
such fixtures, alterations, additions, improvements and wiring which, when
approved by Landlord, were permitted to be removed by Tenant from the Premises
at the earlier expiration or termination of the Term of this Lease.
Additionally, at Landlord's option, Tenant shall remove such alterations,
additions, improvements, trade fixtures, personal property, equipment, wiring,
cabling, and furniture as Landlord may request; however, Tenant shall not be
required to remove any addition or improvement to the Premises if Landlord has
specifically agreed in writing that the improvement or addition in question need
not be removed. Tenant shall repair all damage caused by such removal. All items
not so removed shall, at Landlord's option, be deemed to have been abandoned by
Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed
of by Landlord without notice to Tenant and without any obligation to account
for such items; any such disposition shall not be considered a strict
foreclosure or other exercise of Landlord's rights in respect of the security
interest granted under Section 20. The provisions of this Section 21 shall
survive the end of the Term.
22. HOLDING OVER. If Tenant fails to vacate the Premises at the end of
the Term, then Tenant shall be a tenant at will and, in addition to all other
damages and remedies to which Landlord may be entitled for such holding over,
Tenant shall pay, in addition to the other Rent, a daily Basic Rent equal to the
greater of (a) 150% of the daily Basic Rent payable during the last month of the
Term, or (b) 125% of the prevailing rental rate in the Building for similar
space. The provisions of this Section 22 shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Landlord provided herein
or at law. If Tenant fails to surrender the Premises upon the termination or
expiration of this Lease, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord
harmless from all loss, costs (including reasonable attorneys' fees) and
liability resulting from such failure, including, without limiting the
generality of the foregoing, any claims made by any succeeding tenant founded
upon such failure to surrender, and any lost profits to Landlord resulting
therefrom.
23. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's occupancy of the
Premises, Landlord shall have the following rights:
21
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise, in and
about the Building, or any part thereof; to enter upon the Premises (at
reasonable times and after giving Tenant reasonable notice thereof, which may be
oral notice, except in cases of real or apparent emergency, in which case no
notice shall be required) and, during the continuance of any such work, to
temporarily close doors, entryways, public space, and corridors in the Building;
to interrupt or temporarily suspend Building services and facilities; to change
the name of the Building; and to change the arrangement and location of
entrances or passageways, doors, and doorways, corridors, elevators, stairs,
restrooms, or other public parts of the Building;
(b) To take such reasonable measures as Landlord deems
advisable for the security of the Building and its occupants; evacuating the
Building for cause, suspected cause, or for drill purposes; temporarily denying
access to the Building; and closing the Building after normal business hours and
on Sundays and holidays, subject, however, to Tenant's right to enter when the
Building is closed after normal business hours under such reasonable regulations
as Landlord may prescribe from time to time; and
(c) To enter the Premises at reasonable hours and upon
reasonable prior notice (which may be oral notice) to show the Premises to
prospective purchasers, lenders, or, during the last 12 months of the Term,
tenants.
24. INTENTIONALLY OMITTED.
25. MISCELLANEOUS.
(a) LANDLORD TRANSFER. Landlord may transfer any portion of
the Building and any of its rights under this Lease. If Landlord assigns its
rights under this Lease, then Landlord shall thereby be released from any
further obligations hereunder arising after the date of transfer, provided that
the assignee assumes Landlord's obligations hereunder in writing.
(b) LANDLORD'S LIABILITY. The liability of Landlord to Tenant
for any default by Landlord under the terms of this Lease shall be limited to
Tenant's actual direct, but not consequential, damages therefor and shall be
recoverable only from the interest of Landlord in the Building, and Landlord
shall not be personally liable for any deficiency. This Section shall not limit
any remedies which Tenant may have for Landlord's defaults which do not involve
the personal liability of Landlord.
(c) FORCE MAJEURE. Other than for Tenant's obligations under
this Lease that can be performed by the payment of money (e.g., payment of Rent
and maintenance of insurance) and Landlord's delay in the delivery of possession
of the Premises to Tenant, whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws,
22
regulations, or restrictions, or any other causes of any kind whatsoever which
are beyond the control of such party.
(d) BROKERAGE. Neither Landlord nor Tenant has dealt with any
broker or agent in connection with the negotiation or execution of this Lease,
other than ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇'▇▇▇▇▇▇ and The ▇▇▇▇▇▇▇▇▇ Corporation, whose
commission shall be paid by Landlord. Tenant and Landlord shall each indemnify
the other against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any broker or agent claiming the
same by, through, or under the indemnifying party.
(e) ESTOPPEL CERTIFICATES. From time to time, Tenant shall
furnish to any party designated by Landlord, within ten days after Landlord has
made a request therefor, a certificate signed by Tenant confirming and
containing such factual certifications and representations as to this Lease as
Landlord may reasonably request. Unless otherwise required by Landlord's
Mortgagee or a prospective purchaser or mortgagee of the Building, the initial
form of estoppel certificate to be signed by Tenant (in substantially the same
form) is attached hereto as EXHIBIT F. Landlord shall furnish to Tenant, within
a reasonable time after Tenant has made a request therefor, a certificate signed
by Landlord confirming and containing such factual certifications and
representations as to this Lease as Tenant may reasonably request.
(f) NOTICES. All notices and other communications given
pursuant to this Lease shall be in writing and shall be (1) mailed by first
class, United States Mail, postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the address specified in the
Basic Lease Information, (2) hand delivered to the intended address, (3) sent by
a nationally recognized overnight courier service, or (4) sent by facsimile
transmission during normal business hours followed by a confirmatory letter sent
in another manner permitted hereunder. All notices shall be effective upon
delivery to the address of the addressee. The parties hereto may change their
addresses by giving notice thereof to the other in conformity with this
provision.
(g) SEPARABILITY. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby and in lieu of such clause
or provision, there shall be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable.
(h) AMENDMENTS; AND BINDING EFFECT. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by Landlord or
Tenant unless such waiver is in writing signed by Landlord or Tenant, as
applicable, and no custom or practice which may evolve between the parties in
the administration of the terms hereof shall waive or diminish the right of
Landlord or Tenant to insist upon the performance by Tenant in strict accordance
with the terms hereof. The terms and conditions contained in this Lease shall
inure to the benefit of and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
23
herein expressly provided. This Lease is for the sole benefit of Landlord and
Tenant, and, other than Landlord's Mortgagee, no third party shall be deemed a
third party beneficiary hereof.
(i) QUIET ENJOYMENT. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the terms and
conditions of this Lease.
(j) NO MERGER. There shall be no merger of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof if
the same person acquires or holds, directly or indirectly, this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(k) NO OFFER. The submission of this Lease to Tenant shall not
be construed as an offer, and Tenant shall not have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
(l) ENTIRE AGREEMENT. This Lease constitutes the entire
agreement between Landlord and Tenant regarding the subject matter hereof and
supersedes all oral statements and prior writings relating thereto. Except for
those set forth in this Lease, no representations, warranties, or agreements
have been made by Landlord or Tenant to the other with respect to this Lease or
the obligations of Landlord or Tenant in connection therewith. The normal rule
of construction that any ambiguities be resolved against the drafting party
shall not apply to the interpretation of this Lease or any exhibits or
amendments hereto.
(m) WAIVER OF JURY TRIAL. To the maximum extent permitted by
law, Landlord and Tenant each waive right to trial by jury in any litigation
arising out of or with respect to this Lease.
(n) GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located.
(o) JOINT AND SEVERAL LIABILITY. If Tenant is comprised of
more than one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease.
(p) FINANCIAL REPORTS. Within 15 days after Landlord's written
request therefor, which request shall not occur more than once in each calendar
year and shall be in anticipation of selling, financing or refinancing (unless
an Event of Default exists hereunder, in which case Landlord may make periodic
requests), Tenant will furnish Tenant's most recent audited financial statements
(including any notes to them) to Landlord, or, if no such audited statements
have been prepared, such other financial statements (and notes to them) as may
have been prepared by an independent certified public accountant or, failing
those, Tenant's internally prepared financial statements. If Tenant is a
publicly traded corporation, Tenant may satisfy its obligations hereunder by
providing to Landlord Tenant's most recent annual and quarterly reports. Tenant
will discuss
24
its financial statements with Landlord. Landlord will not disclose any aspect of
Tenant's financial statements that Tenant designates to Landlord as confidential
except (1) to Landlord's Mortgagee or prospective purchasers of the Building,
(2) in litigation between Landlord and Tenant, and (3) if required by court
order. Tenant shall not be required to deliver the financial statements required
under this Section 25.(p) more than once in any 12-month period unless requested
by Landlord's Mortgagee or a prospective buyer or lender of the Building or an
Event of Default occurs.
(q) LANDLORD'S FEES. Whenever Tenant requests Landlord to take
any action not required of it hereunder or give any consent required or
permitted under this Lease, Tenant will reimburse Landlord for Landlord's
reasonable out-of-pocket costs payable to third parties and incurred by Landlord
in reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within ten days after
Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action.
(r) TELECOMMUNICATIONS. Tenant and its telecommunications
companies, including but not limited to local exchange telecommunications
companies and alternative access vendor services companies shall have no right
of access to and within the Building, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless, and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent (which consent shall not
be unreasonably withheld or delayed). Notwithstanding any provisions of this
Section 25(r) to the contrary, and provided Tenant obtains Landlord's prior
written consent as aforesaid, Tenant may make or perform certain installation
affecting Tenant's telecommunications systems provided that: (i) any such
installations only affect the Premises; (ii) no such installations affect any of
the Building mechanical, electrical or plumbing systems; (iii) Tenant shall
promptly repair and restore any damage caused by any such installation; and (iv)
upon Landlord's request, at the earlier termination or expiration of this Lease,
Tenant shall restore the Premises to the condition that existed on the date of
this Lease if, at the time of its approval of the same, Landlord requires that
any and/or all such installations be removed at the earlier termination or
expiration of this Lease.
(s) CONFIDENTIALITY. Tenant acknowledges that the terms and
conditions of this Lease are to remain confidential for Landlord's benefit, and
may not be disclosed by Tenant to anyone, by any manner or means, directly or
indirectly, without Landlord's prior written consent, other than a Tenant Party
and Tenant's lenders, accountants, attorneys, brokers, investors, underwriters
and other advisors on a need to know basis only provided such advisors agree to
keep the terms and conditions of this Lease confidential or to the extent
required to be disclosed by Tenant (or its officers, employees, agents and/or
consultants) in connection with any litigation proceeding and/or in order to
comply with any federal, state or municipal laws, regulations, rules, ordinances
and/or with a judicial or administrative directive and/or any rules or
regulations of any stock exchange. The consent by Landlord to any disclosures
shall not be deemed to be a waiver on the part of Landlord of any prohibition
against any future disclosure.
25
(t) HAZARDOUS MATERIALS. The term "HAZARDOUS MATERIALS" means
any substance, material, or waste which is now or hereafter classified or
considered to be hazardous, toxic, or dangerous under any Law relating to
pollution or the protection or regulation of human health, natural resources or
the environment, or poses or threatens to pose a hazard to the health or safety
of persons on the Premises or in the Building. Tenant shall not use, generate,
store, or dispose of, or permit the use, generation, storage or disposal of
Hazardous Materials on or about the Premises or the Building except in a manner
and quantity necessary for the ordinary performance of Tenant's business, and
then in compliance with all Laws. If Tenant breaches its obligations under this
Section 25.(t), Landlord may immediately take any and all action reasonably
appropriate to remedy the same, including taking all appropriate action to clean
up or remediate any contamination resulting from Tenant's use, generation,
storage or disposal of Hazardous Materials. Tenant shall defend, indemnify, and
hold harmless Landlord and its representatives and agents from and against any
and all claims, demands, liabilities, causes of action, suits, judgments,
damages and expenses (including reasonable attorneys' fees and cost of clean up
and remediation) arising from Tenant's failure to comply with the provisions of
this Section 25.(t). This indemnity provision shall survive termination or
expiration of the Lease.
(u) LIST OF EXHIBITS. All exhibits and attachments attached
hereto are incorporated herein by this reference.
Exhibit A - Outline of Premises
Exhibit B - Legal Description of Building
Exhibit C - Building Rules and Regulations
Exhibit D - Tenant Finish-Work: Allowance
Exhibit E - Amendment No. 1
Exhibit F - Form of Tenant Estoppel Certificate
Exhibit G - Parking
Exhibit H - Renewal Option
Exhibit I - Sample Letter of Credit
Exhibit J - Right of First Offer
Exhibit K - Janitorial Specifications
Exhibit L - Subordination, Non-Disturbance and Attornment
Agreement
(v) TIME OF ESSENCE. Time is of the essence of this Lease and
each and all of its provisions.
(w) NOTICE OF LEASE. Tenant agrees not to record this Lease
and, subject to the provisions of Section 25(s) above, to keep the terms of this
Lease confidential, but each party hereto agrees, at the request of the others
to execute a so-called Notice of Lease in recordable form 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
hereunder.
26
(x) FAILURE OF TENANT TO CONTINUOUSLY OCCUPY THE PREMISES. If,
for more than sixty (60) consecutive days or more than sixty (60) days in a one
hundred fifty (150) day period, Tenant (1) vacates the Premises or any
substantial portion thereof or (2) fails to continuously operate its business in
the Premises, Landlord may terminate this Lease upon giving written notice to
Tenant as of the date specified in such notice. If Landlord terminates this
Lease, then this Lease shall terminate and neither party shall have any further
obligations hereunder as of the termination date except as otherwise provided
herein and Tenant shall pay to Landlord all Rent accrued through the termination
date. Thereafter, Landlord may lease the Premises (or any portion thereof) to
any person without liability to Tenant.
26. OTHER PROVISIONS. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY
IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, (i) TENANT'S
OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE
PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND (ii)
TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this Lease Agreement to be duly executed as
a Massachusetts instrument under seal as of the day and year first above
written.
TENANT:
ART TECHNOLOGY GROUP, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: President/CEO
-------------------------------
LANDLORD:
DVPT LIMITED
PARTNERSHIP, a Delaware limited partnership
By: New DVPT Corp., a Delaware corporation, its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
------------------------------------
28
EXHIBIT A
OUTLINE OF PREMISES
A-1
EXHIBIT B
LEGAL DESCRIPTION OF BUILDING
Beginning at a point, said point being the intersection of the westerly
sideline of First Street and the northerly sideline of Thorndike Street in the
City of Cambridge, County of Middlesex, Commonwealth of Massachusetts, bounded
and described as follows:
N 80(degree)- 28' - 11" W Along the northerly sideline of Thorndike Street a distance of Four Hundred
and Thirty Eight Hundredths feet (400.38') to a point, said point being the
intersection of the northerly sideline of Thorndike Street and the easterly
sideline of Second Street, thence turning and running;
N 09(degree)- 31' - 49" E Along the easterly sideline of Second Street a distance of Sixty and no
Hundredths feet (60.00'), to a point, thence turning and running;
S 80(degree)- 28' - 11" E A distance of One Hundred and No Hundredths feet (100.00') to a point,
thence turning and running;
N 09(degree)- 36' - 54" E A distance of One Hundred Forty and Seventy-Two Hundredths feet (140.72')
to a point, said being along the southerly sideline of ▇▇▇▇ Street, thence
turning and running;
S 80(degree)- 21' - 10" E Along said southerly sideline of ▇▇▇▇ Street a distance of Three Hundred and
No Hundredths feet (300.00') to a point, said point being the intersection of
said southerly sideline of ▇▇▇▇ Street and the westerly sideline of First Street,
thence turning and running;
S 09(degree)- 28' - 49" W Along said westerly sideline of First Street a distance of Two Hundred and
Eleven Hundredths feet (200.11') to a point of beginning.
Appurtenant to this parcel are leasehold parking rights as set forth in
a lease dated November 18, 1985 by and between Charlesport Limited Partnership
and the City of Cambridge a Notice of which was recorded in Deeds at Book 18968,
Page 68 for 250 parking spaces in Cambridge and leasehold parking rights as set
forth in a Lease dated March 10, 1985 made by and between the City of Cambridge
and Charlesport Limited Partnership, a Notice of which was recorded in Deeds at
Book 16059, Page 516.
B-1
EXHIBIT C
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
oth`er than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Building without the prior
written consent of Landlord. No nails, hooks or screws shall be driven or
inserted in any part of the Building except by Building maintenance personnel.
No curtains or other window treatments shall be placed between the glass and the
Building standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for
all tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
6. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
Building entrances or lobby shall be conducted under Landlord's supervision at
such times and in such a manner as Landlord may reasonably require. Each tenant
assumes all risks of and shall be liable for all damage to articles moved and
injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord if damaged or injured as a result
of acts in connection with carrying out this service for such tenant.
7. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner acceptable to
Landlord which may include the use of such supporting devices as Landlord may
require. All damages to the Building caused by the installation or removal of
any property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
C-1
8. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about any tenant's
leased premises. No portion of any tenant's leased premises shall at any time be
used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
10. To ensure orderly operation of the Building, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
11. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment) shall
be operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
14. No vending or dispensing machines of any kind may be maintained in
any leased premises without the prior written permission of Landlord.
15. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
16. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expense of
the owner or driver. Landlord may place a "boot" on the vehicle to immobilize it
and may levy a charge of $50.00 to remove the "boot." Tenant shall indemnify,
hold and save harmless Landlord of any liability arising from the towing or
booting of any vehicles belonging to a Tenant Party.
17. No tenant may enter into phone rooms, electrical rooms, mechanical
rooms, or other service areas of the Building unless accompanied by Landlord or
the Building manager.
C-2
EXHIBIT D
TENANT FINISH-WORK: ALLOWANCE
1. Except as set forth in this Exhibit, Tenant accepts the Premises in
their "AS-IS" condition on the date that this Lease is entered into.
2. Tenant shall provide to Landlord for its approval final working
drawings, prepared by an architect that has been approved by Landlord (which
approval shall not unreasonably be withheld, delayed or conditioned), of all
improvements that Tenant proposes to install in the Premises; such working
drawings shall include the partition layout, ceiling plan, electrical outlets
and switches, telephone outlets, drawings for any modifications to the
mechanical and plumbing systems of the Building, and detailed plans and
specifications for the construction of the improvements called for under this
Exhibit in accordance with all applicable governmental laws, codes, rules, and
regulations. If any of Tenant's proposed construction work will affect the
Building's HVAC, electrical, mechanical, or plumbing systems, then the working
drawings pertaining thereto must be approved by the Building's engineer of
record (which approval shall not be unreasonably withheld, delayed or
conditioned). Landlord's approval or disapproval, as the case may be, of the
final working drawings (inclusive of any approval required by the Building's
engineer of record) shall be completed within ten (10) business days of
Landlord's receipt of such working drawings. If Landlord disapproves the final
working drawings, Landlord shall specify the reasons for such disapproval in
writing to Tenant. Landlord's approval of such working drawings shall not be
unreasonably withheld, delayed or conditioned, provided that (a) they comply
with all applicable laws, rules, and regulations, (b) such working drawings are
sufficiently detailed to allow construction of the improvements in a good and
workmanlike manner, (c) the improvements depicted thereon conform to the rules
and regulations promulgated from time to time by Landlord for the construction
of tenant improvements (a copy of which has been delivered to Tenant), and (d)
the improvements do not affect the Building's structure or any of its HVAC,
electrical, mechanical or plumbing systems. As used herein, "WORKING DRAWINGS"
shall mean the final working drawings approved by Landlord, as amended from time
to time by any approved changes thereto, and "WORK" shall mean all improvements
to be constructed in accordance with and as indicated on the Working Drawings.
Landlord's approval of the Working Drawings shall not be a representation or
warranty of Landlord that such drawings are adequate for any use or comply with
any law, but shall merely be the consent of Landlord thereto. Landlord shall, at
Tenant's request, sign the Working Drawings to evidence its review and approval
thereof. All changes in the Work must receive the prior written approval of
Landlord (which approval shall not be withheld, delayed or conditioned), and in
the event of any such approved change Tenant shall, upon completion of the Work,
furnish Landlord with an accurate, reproducible "as-built" plan of the
improvements as constructed.
3. The Commencement Date shall be extended by one day for each day of
LANDLORD DELAY (as hereinafter defined). "LANDLORD DELAY" is hereby defined as
limited to (i) any actual delay in the construction of the Work that is caused
by Landlord's removal of the staircase located
D-1
in the Premises connecting the second floor to the third floor and/or Landlord's
restoration of the second and third floors resulting therefrom to the condition
that otherwise exists in building #1 and/or (ii) any actual delay in the
Commencement Date that is caused by Landlord's failure to approve or disapprove
of the final working drawings within the time period set forth above.
Landlord Delay, if any, shall be calculated on a net basis taking into
account time savings, if any, caused by Landlord so that any time saved from
such actions shall be offset against delays caused by Landlord's actions, and
Landlord Delay shall include only delays, if any, directly attributable to
Landlord (or Landlord's architect, Building Engineer or agents) and shall
exclude delays attributable to Tenant's architect, Tenant's contractor or
subcontractors or suppliers and shall exclude delays attributable to Force
Majeure Delays.
Tenant must identify any claimed Landlord Delay by written notice and
delivered to Landlord within five (5) business days following the commencement
of any claimed Landlord Delay ("LANDLORD DELAY NOTICE"). The Landlord Delay
Notice shall specify the cause of the Landlord Delay as well as the estimated
number of days the Commencement Date will be delayed by such Landlord Delay.
Tenant may not claim any Landlord Delay which has not been timely documented by
a Landlord Delay Notice, which does not actually cause a delay in the
Commencement Date beyond ninety (90) days following the date Landlord delivers
possession of the Premises to Tenant, or that is offset by a time saving caused
by Landlord. Landlord shall have the right to contest any claimed Landlord Delay
by written notice to Tenant given within five (5) business days following
receipt of the Landlord Delay Notice.
4. The Work shall be performed only by contractors and subcontractors
approved in writing by Landlord, which approval shall not be unreasonably
withheld or delayed. All contractors and subcontractors shall be required to
procure and maintain insurance against such risks, in such amounts, and with
such companies as Landlord may reasonably require. Certificates of such
insurance, with paid receipts therefor, must be received by Landlord before the
Work is commenced. Promptly upon Landlord's approval of the Working Drawings and
delivery of the Premises to Tenant, Tenant shall commence the construction of
the Work and diligently and continuously pursue the completion of the same. The
Work shall be performed in a good and workmanlike manner free of defects, shall
conform strictly with the Working Drawings, and shall be performed in such a
manner and at such times as not to interfere with or delay Landlord's other
contractors, the operation of the Building, and the occupancy thereof by other
tenants. All contractors and subcontractors shall contact Landlord and schedule
time periods during which they may use Building facilities in connection with
the Work (E.G., elevators, excess electricity, etc.), provided that such
Building facilities shall be available at a minimum as set forth in Sections
7(a)(1) - (5) of this Lease.
5. The entire cost of performing the Work (including, without
limitation, design of the Work and preparation of the Working Drawings, costs of
construction, labor and materials, electrical usage during construction,
additional janitorial services, general tenant signage, related taxes and
insurance costs, all of which costs are herein collectively called the "TOTAL
CONSTRUCTION COSTS") in excess of the Construction Allowance (as hereinafter
defined) shall be paid by Tenant.
D-2
6. Landlord shall provide to Tenant a construction allowance (the
"CONSTRUCTION ALLOWANCE") equal to $18.00 per rentable square foot in the
Premises. If the Total Construction Costs are less than the Construction
Allowance, the balance of the Construction Allowance shall be applied to the
Rent due hereunder by Tenant.
Subject to the terms and conditions of this Lease, Landlord shall pay
the Construction Allowance to Tenant for the purpose of financing a portion of
the Work. As conditions to Tenant's right to receive the Construction Allowance:
(i) Tenant shall not be in default under the Lease; (ii) the Lease shall be in
full force and effect; (iii) the Work, or a portion of the Work, shall be, in
Landlord's reasonable discretion, substantially complete; (iv) Tenant shall
furnish to Landlord: (A) if the entire Work is substantially complete, a
Certificate of Occupancy respecting the Premises; and (B) such evidence as
Landlord may reasonably require to evidence that all persons furnishing or
supplying labor and materials in connection with the construction of the Work,
or in the case of completion of a portion of the Work, have been paid and that
no lien exists of record with respect thereto; and (v) Tenant shall not request
any portion of the Construction Allowance more than once a month. Landlord shall
fund the Construction Allowance within twenty (20) business days from Tenant's
written request for the same provided that Tenant has complied with the
requirements set forth in the preceding sentence. Upon paying the full amount of
the Construction Allowance to Tenant in accordance with the provisions hereof,
Landlord shall have no further obligation to extend any credit to Tenant.
7. In consideration for Landlord's management and supervision of
services performed in connection with the Work, Tenant shall pay to Landlord,
within ten (10) business days after demand therefor, the actual costs incurred
by Landlord to review the working drawings and/or any drafts and/or
modifications thereto and to review the construction of the Work; provided,
however, such costs shall not exceed five percent (5%) of the cost of the Work
(excluding the construction management fee).
D-3
EXHIBIT E
AMENDMENT NO. 1
This Amendment No. 1 (this "AMENDMENT") is executed as of
__________, 199_ between DVPT Limited Partnership, a Delaware limited
partnership ("LANDLORD"), and Art Technology Group, Inc., a Delaware
corporation ("TENANT"), for the purpose of amending the Lease Agreement
between Landlord and Tenant dated __________, 1999 (the "LEASE"). Capitalized
terms used herein but not defined shall be given the meanings assigned to
them in the Lease.
AGREEMENTS
For valuable consideration, whose receipt and sufficiency are
acknowledged, Landlord and Tenant agree as follows:
1. CONDITION OF PREMISES. Tenant has accepted possession of the
Premises pursuant to the Lease. Any improvements required by the terms of the
Lease to be made by Landlord have been completed to the full and complete
satisfaction of Tenant in all respects, and Landlord has fulfilled all of its
duties under the Lease with respect to such initial tenant improvements.
Furthermore, Tenant acknowledges that the Premises are suitable for the
Permitted Use.
2. COMMENCEMENT DATE. The Commencement Date of the Lease is
_____________, 199_. If the Commencement Date set forth in the Lease is
different than the date set forth in the preceding sentence, then the
Commencement Date as contained in the Lease is amended to be the Commencement
Date set forth in the preceding sentence.
3. EXPIRATION DATE. The Term is scheduled to expire on _________,
2006, as such Term may be extended pursuant to the provisions of the Lease.
If the scheduled expiration date of the initial Term as set forth in the
Lease is different than the date set forth in the preceding sentence, then
the scheduled expiration date as set forth in the Lease is hereby amended to
the expiration date set forth in the preceding sentence.
4. CONTACT NUMBERS. Tenant's telephone number in the Premises
is _______________ . Tenant's telecopy number in the Premises is ____________.
5. RATIFICATION. Tenant hereby ratifies and confirms its obligations
under the Lease, and represents and warrants to Landlord that it has no defenses
thereto. Additionally, Tenant further confirms and ratifies that, as of the date
hereof, the Lease is and remains in good standing and in full force and effect,
and Tenant has no claims, counterclaims, set-offs or defenses against Landlord
arising out of the Lease or in any way relating thereto or arising out of any
other transaction between Landlord and Tenant.
E-1
6. BINDING EFFECT; GOVERNING LAW. Except as modified hereby, the Lease
shall remain in full effect and this Amendment shall be binding upon Landlord
and Tenant and their respective successors and assigns. If any inconsistency
exists or arises between the terms of this Amendment and the terms of the Lease,
the terms of this Amendment shall prevail. This Amendment shall be governed by
the laws of the State in which the Premises is located.
7. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
Executed as of the date first written above.
TENANT:
ART TECHNOLOGY GROUP, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
---------------------------------
Title:
---------------------------------
LANDLORD:
DVPT LIMITED PARTNERSHIP, a Delaware
limited partnership
By: New DVPT Corp., a Delaware
corporation, its general partner
By:
-----------------------------
Name:
-----------------------
Title:
----------------------
E-2
EXHIBIT F
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned is the Tenant under the Lease (defined below) between
, a , as Landlord, and the undersigned as
Tenant, for the Premises on the floor(s) of the office building located
at , and commonly known as , and hereby certifies as
follows:
1. The Lease consists of the original Lease Agreement dated as
of ___________ , 199__ between Tenant and Landlord ['S PREDECESSOR-IN-INTEREST]
and the following amendments or modifications thereto (if none, please
state "none"):
The documents listed above are herein collectively referred to as the "LEASE"
and represent the entire agreement between the parties with respect to the
Premises. All capitalized terms used herein but not defined shall be given the
meaning assigned to them in the Lease.
2. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Section 1 above.
3. The Term commenced on _________ , 199__ and the Term expires,
excluding any renewal options, on __________ , 200__, and Tenant has no option
to purchase all or any part of the Premises or the Building or, except as
expressly set forth in the Lease, any option to terminate or cancel the Lease.
4. Tenant currently occupies the Premises described in the Lease and
Tenant has not transferred, assigned, or sublet any portion of the Premises nor
entered into any license or concession agreements with respect thereto except as
follows (if none, please state "none"):
F-1
5. All monthly installments of Basic Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through ____________ . The current monthly installment of Basic Rent is $______.
6. All conditions of the Lease to be performed by Landlord necessary to
the enforceability of the Lease have been satisfied and Landlord is not in
default thereunder. In addition, Tenant has not delivered any notice to Landlord
regarding a default by Landlord thereunder.
7. As of the date hereof, there are no existing defenses or offsets,
or, to the undersigned's knowledge, claims or any basis for a claim, that the
undersigned has against Landlord and no event has occurred and no condition
exists, which, with the giving of notice or the passage of time, or both, will
constitute a default under the Lease.
8. No rental has been paid more than thirty (30) days in advance and no
security deposit has been delivered to Landlord except as provided in the Lease.
9. If Tenant is a corporation, partnership or other business entity,
each individual executing this Estoppel Certificate on behalf of Tenant hereby
represents and warrants that Tenant is a duly formed and existing entity
qualified to do business in the state in which the Premises is located and that
Tenant has full right and authority to execute and deliver this Estoppel
Certificate and that each person signing on behalf of Tenant is authorized to do
so.
10. There are no actions pending against Tenant under any bankruptcy or
similar laws of the United States or any state.
11. Other than in compliance with all applicable laws and incidental to
the ordinary course of the use of the Premises, the undersigned has not used or
stored any hazardous substances in the Premises.
12. All tenant improvement work to be performed by Landlord under the
Lease has been completed in accordance with the Lease and has been accepted by
the undersigned and all reimbursements and allowances due to the undersigned
under the Lease in connection with any tenant improvement work have been paid in
full.
13. Tenant acknowledges that this Estoppel Certificate may be delivered
to Landlord, Landlord's Mortgagee or to a prospective mortgagee or prospective
purchaser, and their respective successors and assigns, and acknowledges that
Landlord, Landlord's Mortgagee and/or such prospective mortgagee or prospective
purchaser will be relying upon the statements contained herein in disbursing
loan advances or making a new loan or acquiring the property of which the
Premises are a part and that receipt by it of this certificate is a condition of
disbursing loan advances or making such loan or acquiring such property.
F-2
Executed as of , 199 .
TENANT: ,
-----------------------------------
a
------------------------------------------
By:
----------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
F-3
EXHIBIT G
PARKING
Reference is made to that certain Lease Agreement for Parking Spaces in
the East Cambridge Parking Facility, dated November 18, 1985, as amended by a
certain First Amendment of Lease of undated date in January, 1988 and as further
amended by a certain Second Amendment of Lease dated August 19, 1993 and as
affected by that certain extension letter agreement dated May 15, 1995, between
the City of Cambridge, as lessor, and Landlord's predecessor-in-interest,
Charlesport Limited Partnership, as lessee (as so amended and affected, the
"Parking Lease"). Pursuant to the provisions of the Parking Lease, Landlord has
leased from the City of Cambridge certain parking spaces in the garage facility
known as the East Cambridge Parking Facility located at the corner of First
Street and Thorndike Street in Cambridge, Massachusetts (the "Parking Garage").
Landlord hereby subleases to Tenant and Tenant hereby subleases from Landlord
sixty (60) of such parking spaces (on an unassigned, non-reserved basis) during
the Term of this Lease at the current monthly rate provided for in the Parking
Lease, as adjusted from time to time. If Landlord and Tenant agree to expand the
Premises pursuant to the provisions of this Lease or otherwise, Landlord shall
agree to sublease to Tenant, and Tenant shall elect to sublease from Landlord at
the time of any such expansion, one (1) additional parking space for each
additional 1,000 rentable square feet leased by Tenant in accordance with the
provisions of this EXHIBIT G to the extent any additional parking spaces are
available for sublease. Landlord may, pursuant to Section 13 hereof, establish
rules and regulations regarding the parking spaces in the Parking Garage.
Tenant's sublease of the parking spaces is subject to the terms of the Parking
Lease, as amended form time to time. Tenant acknowledges and agrees to be bound
by every covenant, condition and restriction set forth in the Parking Lease.
Provided Tenant is not in default under this Lease, Landlord shall not terminate
the Parking Lease at least as such Parking Lease relates to the parking spaces
Landlord is subleasing to Tenant hereunder. In the event the Parking Lease is
for any reason terminated before the expiration of this Lease, Tenant's rights
under this Exhibit G shall also terminate as of the effective date of
termination of the Parking Lease, except with respect to the duties and
obligations of Landlord and Tenant, actual or contingent, which have accrued
prior to the date of such termination. If, for any reason, Landlord is unable to
provide all or any portion of the parking spaces to which it is entitled
hereunder, then Tenant's obligation to pay for such spaces shall be abated for
so long as Tenant does not have the use thereof; this abatement shall be in full
settlement of all claims that Tenant might otherwise have against Landlord
because of Landlord's failure or inability to provide Tenant with such parking
spaces.
G-1
EXHIBIT H
RENEWAL OPTION
Provided no Event of Default exists and Tenant or a Permitted
Transferee is occupying the entire Premises at the time of such election, Tenant
may renew this Lease for one additional period of five (5) years, by delivering
written notice of the exercise thereof to Landlord not later than nine (9)
months before the expiration of the Term. The Basic Rent payable for each month
during such extended Term shall be the "FAIR MARKET RENTAL RATE" (determined as
set forth below), at the commencement of such extended Term, for renewals of
space of equivalent quality, size, utility and location, with the length of the
extended Term and the credit standing of Tenant to be taken into account. Within
thirty (30) days after receipt of Tenant's notice to renew but in any event not
earlier than fourteen (14) months prior to the commencement of the five-year
extension term, Landlord shall deliver to Tenant written notice of the Fair
Market Rental Rate and shall advise Tenant of the required adjustment to Basic
Rent, if any, and the other terms and conditions offered. Tenant shall, within
ten (10) days after receipt of Landlord's notice, notify Landlord in writing
whether Tenant accepts or rejects Landlord's determination of the Fair Market
Rental Rate. If Tenant timely notifies Landlord that Tenant accepts Landlord's
determination of the Fair Market Rental Rate (and failure of Tenant to notify
Landlord within the time period prescribed above shall be deemed acceptance),
then, on or before the commencement date of the extended Term, Landlord and
Tenant shall execute an amendment to this Lease extending the Term on the same
terms provided in this Lease, except as follows:
(a) Basic Rent shall be adjusted to the Fair Market Rental
Rate;
(b) Tenant shall have no further renewal option unless
expressly granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their
then-current condition, and Landlord shall not provide to Tenant any
allowances (e.g., moving allowance, construction allowance, and the
like) or other tenant inducements.
If Tenant rejects Landlord's determination of the Fair Market Rental Rate,
Tenant may, but only within ten (10) days after receipt of Landlord's notice,
require by written notice to Landlord that the determination of Fair Market
Rental Rates be made by brokers. In such event, within ten (10) days thereafter,
each party shall select a qualified commercial real estate broker with at least
ten (10) years experience in appraising property and buildings in the city or
submarket in which the Premises are located. The two brokers shall give their
opinion of Fair Market Rental Rates within ten (10) days after their retention.
In the event the opinions of the two brokers differ and, after good faith
efforts over the succeeding ten (10) day period, they cannot mutually agree, the
brokers shall immediately and jointly appoint a third broker with the
qualifications specified above. This third broker shall immediately (within five
(5) days) choose either the determination of Landlord's broker or Tenant's
broker and such choice of this third broker shall be final and binding on
H-1
Landlord and Tenant. Each party shall pay its own costs for its real estate
broker. The parties shall equally share the costs of any third broker. The
parties shall immediately confirm the renewal term, Basic Rent and the other
terms and conditions so determined, in writing.
Tenant's rights under this Exhibit shall terminate if (1) this Lease or
Tenant's right to possession of the Premises is terminated, (2) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premises to any
person other than a Permitted Transferee or to the sublessee(s) consented to by
Landlord in accordance with the provisions of this Lease provided said
sublessee(s) sublease(s), in the aggregate, occupy less than twenty percent
(20%) of the Premises for less than seventy-five percent (75%) of the
then-remaining Term, (3) Tenant fails to timely exercise its option under this
Exhibit, time being of the essence with respect to Tenant's exercise thereof, or
(4) Landlord determines, in its sole but reasonable discretion, that Tenant's
financial condition or creditworthiness has materially deteriorated since the
date of this Lease.
H-2
EXHIBIT I
SAMPLE LETTER OF CREDIT
Beneficiary/Landlord: Issuance Date:
DVPT Limited Partnership ______________________, 1999
c/o Archon Group, L.P.
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇ Irrevocable Standby Letter
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ of Credit No. _______________
Applicant/Accountee/Tenant: Credit Amount:
Art Technology Group, Inc. USD $1,500,000.00.
Up to an Aggregate Thereof
-----------------------------
Date and Place of Expiry:
-----------------------------
----------------------------- ---------------,
At Our Counters in Boston, MA
Ladies and Gentlemen:
We hereby issue our irrevocable standby letter of credit in your favor
for the account of the applicant for an aggregate amount not to exceed ONE
MILLION FIVE HUNDRED THOUSAND and 00/100 ($1,500,000.00) US DOLLARS available
for payment by presentation of your draft(s) drawn on ourselves at sight, and
accompanied by the following documents:
1. Your statement/certificate, on your letterhead, signed by a person
purporting to be your authorized officer/representative, appropriately completed
in the following form:
A. "The undersigned, an authorized officer/representative of DVPT
Limited Partnership (the "Landlord"), hereby certifies with regard to __________
standby letter of credit no. __________ that Art Technology Group, Inc. (the
"Tenant") is in default relative to the Lease Agreement dated ________________,
1999 (the "Lease") by and between Landlord and Tenant and such default has
continued uncured beyond all applicable notice and grace periods."
OR
B. "We are in receipt of _______________ Notice of Non-Extension of
its letter of credit no. _______________ and Art Technology Group, Inc. (the
"Tenant") has failed to provide a replacement letter of credit reasonably
acceptable to us as of the date of our drawing and the Tenant remains liable to
us pursuant to the Lease."
2. The original of this letter of credit (for endorsement of drawing),
which will be returned unless the credit is fully utilized.
I-1
Partial drawings are permitted.
Draft(s) must indicate the name of the issuing bank, the letter of
credit number and must be presented at this office (the address specified
below).
It is a condition of this letter of credit that it shall be deemed
automatically extended without amendment for an additional period of one year
from the present or each future expiration date hereof, but not beyond
_________________, unless at least forty-five (45) days prior to any such
expiration date we notify you by certified mail, that we elect not to so extend
this letter of credit for any such additional period. Upon receipt by you of
such notice, you may draw hereunder your draft(s) at sight on ourselves for the
then full amount of this letter of credit accompanied by your statement as
specified above.
It is another condition of this Letter of Credit that the credit amount
shall be automatically reduced to the amount and on the respective dates set
forth below if and when the letter of credit is automatically extended unless at
least thirty (30) days prior to such date of reduction we receive your statement
by certified mail in the following form: "The undersigned, an authorized
officer/ representative of DVPT Limited Partnership, hereby certifies with
regard to ___________________ Standby Letter of Credit No. ____________ that
under the terms of the Lease the credit amount shall not be reduced." Upon
receipt of such statement the credit amount will not be automatically reduced
but shall remain at the amount in place immediately prior to the receipt of such
statement. Following our receipt of such statement, the reduction schedule
contained herein shall be canceled and deleted and this Letter of Credit is
subject to further reduction only upon your subsequent statement received by us
by certified mail at least thirty (30) days prior to the specified reduction
date in the following form: "The undersigned, an authorized
officer/representative of DVPT Limited Partnership, hereby certifies with regard
to ______________________ Standby Letter of Credit No. _______________ that
under the terms of the Lease the credit amount shall be reduced to (insert
amount) on (insert date)."
The reduction schedule is as follows:
Date of Reduction Reduced Security Deposit Amount
----------------- -------------------------------
September 1, 2001 $1,250,000.00
September 1, 2002 $1,000,000.00
September 1, 2003 $750,000.00
This letter of credit is transferable in its entirety, but not in part,
to any successor landlord under the Lease and may be successively transferred.
If it is your intention to transfer your interest hereunder, kindly return the
letter of credit to us for appropriate endorsement and furnish us with your
instructions. Please note your signature on your request for transfer must be
authenticated by your bank. (Transfer form is attached.) In the event of
transfer all required documents are to be signed by the transferee.
I-2
This letter of credit sets forth in full the terms of our obligations
to you, and our undertaking shall not in any way be amended or amplified by
reference to any documents, instruments or any agreement referred to herein or
to which this letter of credit related, and such reference, if any, shall not be
deemed to incorporate herein by reference any document, instrument or agreement.
Except as otherwise expressly stated herein, this letter of credit is
subject to the "Uniform Customs and Practice for Documentary Credits,
International Chamber of Commerce, Publication N. 500 (1993 Revision)".
We engage with you that all draft(s) drawn under and in compliance with
the terms and conditions of this letter of credit shall be duly honored on
presentation to us at our office at _______________, Boston, MA _______, Attn:
_______________, ____ Floor on or before the expiring date as specified above or
any automatically extended date herein before set forth.
Very truly yours,
By:
-------------------------------
Name:
Title:
I-3
TRANSFER
This form is to be used where a Letter of Credit is transferred
in its entirety and no substitution of invoices is involved.
Date
Re: Credit issued or advised by
-----------------------------
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably transfers to:
----------------------------
(NAME OF SECOND BENEFICIARY)
----------------------------
(ADDRESS)
----------------------------
(NAME OF ADVISING BANK)
----------------------------
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT IN ITS ENTIRETY.
1. BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE SECOND BENEFICIARY AND THE SECOND BENEFICIARY
SHALL HAVE THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS
RELATING TO ANY AMENDMENT, WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS
AND WHETHER NOW EXISTING OR HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED
DIRECT TO THE SECOND BENEFICIARY WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE
TO THE UNDERSIGNED BENEFICIARY.
I-4
THE ADVICE OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK
YOU TO ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECT TO THE
SECOND BENEFICIARY WITH YOUR CUSTOMARY NOTICE OF TRANSFER, OR ADVISE THE LETTER
OF CREDIT TO THE SECOND BENEFICIARY BY TELEX/SWIFT.
SIGNATURE AUTHENTICATED VERY TRULY YOURS,
(BANK)
BY:
--------------------------
(AUTHORIZED SIGNATURE) NAME:
TITLE:
I-5
EXHIBIT J
RIGHT OF FIRST OFFER
Subject to the rights of then-existing tenants to continue to occupy
their respective premises and to the then-existing renewal or expansion options
(including, without limitation, rights of first offer and/or rights of first
refusal) of other tenants, and provided no Event of Default then exists,
Landlord shall, prior to offering the same to any party (other than the
then-current tenant therein), first offer to lease to Tenant any space which may
become available on the third (3rd) and fourth (4th) floors of the Building (the
"OFFER SPACE") in an "AS-IS" condition; such offer shall be in writing and
specify the lease terms for the Offer Space, including the Fair Market Rental
Rate (as determined in accordance with Exhibit H above) to be paid for the Offer
Space and the date on which the Offer Space shall be included in the Premises
(the "OFFER NOTICE"). Tenant shall notify Landlord in writing whether Tenant
elects to lease the entire Offer Space on the terms set forth in the Offer
Notice, within ten days after Landlord delivers to Tenant the Offer Notice. Even
if Tenant rejects Landlord's determination of Fair Market Rental Rates as set
forth in the Offer Notice, Tenant shall decide whether to elect to lease the
Offer Space as set forth above and Fair Market Rental Rate shall be determined
in accordance with the provisions of EXHIBIT H above after Tenant elects to
lease the Offer Space. If Tenant timely elects to lease the Offer Space, then
Landlord and Tenant shall execute an amendment to this Lease, effective as of
the date the Offer Space is to be included in the Premises, on the terms set
forth in the Offer Notice and, to the extent not inconsistent with the Offer
Notice terms, the terms of this Lease; however, Tenant shall accept the Offer
Space in an "AS-IS" condition and Landlord shall not provide to Tenant any
allowances (e.g., moving allowance, construction allowance, and the like) or
other tenant inducements except as specifically provided in the Offer Notice or
otherwise agreed to by Landlord and Tenant. Notwithstanding the foregoing, if
prior to Landlord's delivery to Tenant of the Offer Notice, Landlord has
received a bona fide offer to lease all or part of the Offer Space from a third
party (a "THIRD PARTY OFFER") and such Third Party Offer includes space in
excess of the Offer Space, Tenant must exercise its rights hereunder, if at all,
as to all of the space contained in the Third Party Offer.
If Tenant fails or is unable to timely exercise its right hereunder,
then such right shall lapse, time being of the essence with respect to the
exercise thereof, and Landlord may lease all or a portion of the Offer Space to
third parties on such terms as Landlord may elect. Tenant may not exercise its
rights under this Exhibit if an Event of Default exists or Tenant, a Permitted
Transferee or the sublessee(s) consented to by Landlord in accordance with the
provisions of this Lease (provided said sublessee(s) sublease(s), in the
aggregate, occupy less than twenty percent (20%) of the Premises for less than
seventy-five percent (75%) of the then-remaining Term) is not then occupying the
entire Premises. For purposes hereof, if an Offer Notice is delivered for less
than all of the Offer Space but such notice provides for an expansion, right of
first refusal, or other preferential right to lease some of the remaining
portion of the Offer Space, then such remaining portion of the Offer Space shall
thereafter be excluded from the provisions of this Exhibit. In no event shall
Landlord be obligated to pay a commission with respect to any space leased by
Tenant under this Exhibit, and Tenant and Landlord shall each indemnify the
other against all costs,
J-1
expenses, attorneys' fees, and other liability for commissions or other
compensation claimed by any broker or agent claiming the same by, through, or
under the indemnifying party.
Tenant's rights under this Exhibit shall terminate if (a) this Lease or
Tenant's right to possession of the Premises is terminated, (b) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premises to any
person other than a Permitted Transferee or to the sublessee(s) consented to by
Landlord in accordance with the provisions of this Lease provided said
sublessee(s) sublease(s), in the aggregate, occupy less than twenty percent
(20%) of the Premises for less than seventy-five percent (75%) of the
then-remaining Term, or (c) less than three (3) full calendar years remain in
the Term of this Lease (as such Term may be extended pursuant to the provisions
of EXHIBIT H).
J-2
EXHIBIT K
JANITORIAL MAINTENANCE
1. SPECIFIC SCOPE OF SERVICES
A. LOBBY AND CORRIDORS: DAILY SERVICE
i. Sweep and clean building entrances.
ii. Clean and sanitize all public telephones and
enclosures. (neatly arrange and
replace as needed all phone books)
iii. Clean and remove smudges from entry door glass.
iv. Polish all entry handles, door plates and metal trim.
v. Wipe clean all glass, wood, or metal doors and door
jambs.
vi. Screen all sand urns of cigarette butts and debris.
Wipe clean and polish.
vii. Empty all trash receptacles, clean container with
clean, damp cloth, and replace plastic liner.
(Manager supplies liners).
viii. Remove all debris from landscaped pots and planters.
(report any thefts, broken pots or missing plants).
ix. Dust and clean all horizontal surfaces under seven
feet.
x. Vacuum all carpet areas completely and remove spots.
xi. Dust mop and damp mop entry floors.
xii. Clean and remove smudges and marks on walls, wall
coverings, and artwork.
xiii. Clean, polish and straighten all furniture as needed.
xiv. Wipe clean all directory boards (exterior) with
clean, soft cloth using glass cleaner that is
considered safe and not labeled as hazardous waste.
xv. Wipe clean all fire extinguisher cabinets and glass.
(report broken glass or missing extinguishers).
K-1
xvi. Clean and polish all elevator doors, jambs, call
plates, and hall lanterns.
xvii. Clean, polish and straighten all furniture as needed.
xviii. Dust and clean all lobby and corridor signage.
xix. Report any lights burned out.
xx. Secure all doors and turn off appropriate lights upon
completion of work assignments.
B. LOBBIES AND CORRIDORS - WEEKLY SERVICE
i. Clean and polish all entry metal and ▇▇▇▇▇.
ii. Dust and clean or polish all baseboards.
iii. Spot clean all carpeted areas.
iv. Dust all ledges and exit signs.
v. Dust all walls above seven feet.
vi. Clean directory board with clean soft cloth.
C. LOBBIES AND CORRIDORS - MONTHLY SERVICE
i. Clean all ceiling vents and grills.
ii. Dust high ceiling corners and entry ways.
iii. Dust and clean light fixtures and covers (interior
and exterior).
iv. Clean and treat all wood paneling and furniture as
requested.
v. Shampoo carpet areas as necessary.
vi. Clean, detail and sanitize public phones and
enclosures.
vii. Dust and clean all fire lobby doors inside and out.
viii. Polish door floor plates.
K-2
D. LOBBIES AND CORRIDORS - QUARTERLY
i. Strip, reseal or re-wax common area floors as
necessary.
E. OFFICES - DAILY SERVICE
i. Clean and remove hand spots/smudges from entry door
glass and side lights.
ii. Using a dustless mop, damp mop all non-carpeted
areas.
iii. Vacuum and spot clean carpets in all traffic areas,
removing staples and other debris.
iv. Properly position furniture, books and magazines in
reception areas.
v. Properly position furniture in offices and conference
rooms.
vi. Spot clean all partition glass and mirrors.
vii. Remove all fingerprints and smudges from private
entrances, light switches, cover plates, doorknob
ways and handles, and walls.
viii. Dust window ▇▇▇▇▇ and ledges.
ix. Dust all horizontal surfaces under seven feet,
furniture, and equipment. DO NOT move or disturb any
paperwork.
x. Dust and replace all desk ornaments, phones and
machines in their ORIGINAL POSITION.
xi. Clean furniture fabric with a whisk broom to sweep
off any dust, paper bits, and erasures as needed.
(remove all staples)
xii. Empty all wastebaskets and carry trash to designated
areas for removal; replace plastic liners as needed.
xiii. Empty all recycling bins from offices into separate
container to be disposed of into specially designated
recycling dumpsters.
xiv. Clean and wash all lunchroom table tops, counters,
sinks, cabinets, refrigerator, and stove (exterior
only) surfaces. (report any insect problems)
xv. Report all burned-out lights.
K-3
xvi. Perform additional services requested by tenant and
▇▇▇▇ tenant directly.
xvii. Before leaving any suite, shut off lights, electrical
appliances, close drapes and blinds and lock all
entrance doors and only interior doors as requested.
F. OFFICES - WEEKLY SERVICE
i. Damp wipe all interior doors with a treated cloth.
ii. Detail vacuum entire carpet areas; remove staples and
other debris.
iii. Damp mop all tile and hardwood floor areas.
iv. Polish all desk tops that are cleared of paperwork.
v. Dust all ledges, files, baseboards, and ▇▇▇▇▇ under
seven feet.
vi. Vacuum all furniture or wipe vinyl furniture clean.
vii. Dust all lower parts of furniture.
viii. Detail and clean all kitchen or wet bar areas.
G. OFFICES - MONTHLY SERVICE
i. Completely clean all partitions and doors, door
jambs, door floor plates, glass and mirrors from
floor to ceiling.
ii. Dust all ledges, wall moldings, pictures, shelves,
etc. over seven feet.
iii. Dust clean or vacuum all drapes and blinds.
iv. Brush down and clean all vents and grills.
v. Strip, clean and apply floor dressing to all
composition, hardwood and parquet floors.
vi. Scrub and wax all tile floors.
vii. Detail all desks and office furniture.
viii. Dust and clean all light fixtures and covers.
ix. Detail and clean all kitchen, wet bars or lunch room
areas.
K-4
x. Clean all baseboards.
xi. Detail and vacuum chairs and upholstered furniture.
H. RESTROOMS - DAILY SERVICE
i. Dust and clean restroom signage and doors.
ii. Vacuum all restrooms vestibules and remove spots.
iii. Sweep, wet mop and disinfect tile floor, paying
particular attention to areas under urinals and
toilet bowls.
iv. Clean alkaline deposits and soap spills from floor
tile grout.
v. Wash and disinfect all basins, urinals, and toilet
bowls.
K-5
EXHIBIT L
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Instrument Prepared By
and when Recorded, Return to:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
This SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT (this
"AGREEMENT"), is made as of the ____ day of __________, 1999, among Bankers
Trust Company of California, N.A., a national banking association (together with
its successors and any separate co-trustee duly appointed "INDENTURE TRUSTEE"),
DVPT Limited Partnership, a Delaware limited partnership ("LANDLORD") and Art
Technology Group, Inc., a Delaware corporation ("TENANT").
RECITALS:
(a) Landlord owns the property commonly known as The ▇▇▇▇▇▇▇▇▇ Building
located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ("TRUST PROPERTY"),
described on EXHIBIT A, which is subject to a certain Deed of Trust (as
hereinafter defined).
(b) Tenant has entered into a certain Lease dated February __, 1999,
with respect to a certain portion of the Trust Property (the "DEMISED
PREMISES"), as the same may have been amended, modified or supplemented (the
"LEASE") with Landlord, or predecessor-in-interest to Landlord, covering the
Demised Premises.
(c) Landlord has made in favor of Indenture Trustee certain
encumbrances which are described on EXHIBIT B annexed hereto and are hereinafter
referred to collectively as the "Deed of Trust".
(d) Indenture Trustee and Tenant desire to confirm their understanding
with respect to the Lease and the Deed of Trust. NOW, THEREFORE, in
consideration of the Demised Premises and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereby agree as
follows:
L-1
1. REPRESENTATIONS.
(a) Tenant certifies that the Lease is currently in full force and
effect and unmodified since ____________, 1999; and that no default by Tenant
exists under the Lease (except as might be shown on an annex hereto).
(b) Tenant certifies that there are no known defaults on the part of
the Landlord, and the Lease is a complete statement of the agreement of the
parties thereto with respect to the letting of the Demised Premises.
2. SUBORDINATION. Subject to the provisions hereof, Tenant agrees that the Lease
as it may hereafter be amended, renewed, modified, replaced, substituted or
extended, from time to time, shall in all respects be, and is hereby expressly
made, subject, subordinate and inferior at all times to the lien, right, title
and terms of the Deed of Trust (and all Deeds of Trust which may hereafter
encumber the Trust Property) and to all of the terms, conditions and provisions
thereof, and to all advances and/or payments made or to be made thereunder, as
such Deed of Trust may have been or may hereafter be assigned, amended,
increased, renewed, modified, consolidated, replaced, combined, substituted,
severed, split, spread, refinanced, recast or extended, whether or not such Deed
of Trust also covers other lands and/or buildings and/or leases. Furthermore,
nothing contained in this Agreement shall in any way impair or affect the
lien(s) created by the Deed of Trust.
3. ATTORNMENT.
(a) In the event that the Indenture Trustee acquires or succeeds to the
interests of Landlord under the Lease by reason of a foreclosure, deed-in-lieu
of foreclosure or by exercise of some similar doctrine, Tenant shall be bound to
the Indenture Trustee, under all of the terms, covenants and conditions of the
Lease, except as provided in this Agreement, for the balance of the term thereof
remaining, with the same force and effect as if the Indenture Trustee were the
landlord named in the Lease and Tenant does hereby agree to (i) attorn to the
Indenture Trustee as its landlord on such terms, (ii) affirm its obligations
under the Lease, and (iii) make payments of all sums thereafter becoming due
under the Lease to the Indenture Trustee. Said attornment, affirmation and
agreement is to be effective and self-operative (without the execution of any
further instruments) upon the Indenture Trustee succeeding to the interests of
Landlord under the Lease.
(b) Tenant agrees to execute and deliver at any time, and from time to
time, upon the request of Landlord, Indenture Trustee or any successor secured
by the Deed of Trust, any instrument or certificate, as the case may be, deemed
reasonably to be necessary or appropriate to evidence such attornment.
(c) Tenant acknowledges that Landlord has made an assignment of the
Lease (the "ASSIGNMENT") to Indenture Trustee as additional security for
Landlord's obligations to Indenture Trustee, but Tenant agrees that the
acceptance by Indenture Trustee of such Assignment does not constitute an
assumption by Indenture Trustee of Landlord's obligations under the Lease, that
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Indenture Trustee is not bound to Tenant to perform Landlord's obligations under
the Lease unless and until Indenture Trustee shall succeed to the position of
Landlord by foreclosure of the Deed of Trust, deed in lieu or otherwise, and
that in all events Indenture Trustee's liability (if any) to Tenant shall be
limited as provided in this Agreement.
(d) From and after such attornment, Indenture Trustee, its nominee,
such other holder (or its nominee), or purchaser, as the case may be, as
Landlord, shall be bound to Tenant under all the terms, covenants and conditions
of the Lease with the same force and effect as if originally entered between
said parties; provided, however, Indenture Trustee, its nominee, such other
holder (or its nominee) or purchaser, as the case may be, shall not be:
(1) bound by any base rental or additional rental or advance
payment ("RENT") which Tenant paid for more than the current month to
any prior landlord (including Landlord);
(2) bound by any Lease modification which was entered into
without the Indenture Trustee's approval to the extent required under
the Indenture;
(3) liable for any security deposit paid to Landlord not
actually turned over to the Indenture Trustee;
(e) Anything herein or in the Lease to the contrary notwithstanding, in
the event that Indenture Trustee, by reason of an "Event of Default" as defined
in the Deed of Trust, shall acquire title to the Demised Premises, Indenture
Trustee shall have no obligation, nor incur any liability, beyond Indenture
Trustee's then interest, if any, in the Trust Property (including any title and
casualty insurance proceeds and condemnation awards), and Tenant shall look
exclusively to such interest of Indenture Trustee, if any, in the Trust Property
for the payment and discharge of any obligations which may be imposed upon
Indenture Trustee hereunder or under the Lease. Tenant agrees that with respect
to any money judgment that may be obtained or secured by Tenant against
Indenture Trustee, Tenant shall look solely to the estate or interest owned by
Indenture Trustee in the Trust Property, and Tenant will not collect or attempt
to collect any such judgment out of any other assets of Indenture Trustee.
4. NON-DISTURBANCE. Provided Tenant is not in default (beyond any applicable
notice and grace periods) under the terms of the Lease and Tenant complies with
this Agreement, Indenture Trustee agrees that in the event Indenture Trustee
exercises any of its rights under the Deed of Trust, and obtains title to the
Demised Premises (i) Tenant shall not be joined as a party defendant in any such
action or proceeding (unless, as a condition precedent to commencing or
proceeding with any such action to foreclose the Deed of Trust or obtain a
receiver, Indenture Trustee is required by statute, judicial decision or the
court in which such action or proceeding has been commenced or is pending so to
name Tenant as a party defendant, but, to the extent permitted by the then
applicable law, any such naming of Tenant will not in any manner interfere with
the protections intended to be afforded to Tenant in this Agreement or the
Lease); (ii) Tenant's possession and occupancy of the Demised Premises and
Tenant's rights and privileges under the Lease during the term thereof or during
the
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term of any extensions or renewals which may be effected in accordance with any
option therefore in the Lease for as long as the Lease is in full force and
effect, shall not be disturbed, subject to limitations or conditions set forth
in this Agreement and Indenture Trustee shall recognize the Lease and Tenant's
rights-thereunder. Subject to the limitations and conditions contained herein,
Indenture Trustee upon foreclosure or acceptance by Indenture Trustee of a
deed-in-lieu of foreclosure shall be deemed to be Landlord and assume the
obligations of Landlord under the Lease thereafter arising or accruing.
5. PRE-FORECLOSURE OBLIGATIONS. If Indenture Trustee delivers to Tenant a Notice
(i) stating that an Event of Default (as defined in the Deed of Trust) has
occurred under the Deed of Trust and (ii) requesting that all Rents and any
other amounts due under the Lease be thereafter paid to Indenture Trustee,
Tenant shall and is hereby authorized and directed by Landlord to pay said Rent
and any other amounts to Indenture Trustee for application in accordance with
the terms of the Deed of Trust, and Landlord releases Tenant from any and all
loss Landlord may sustain or incur as a result of Tenant making such payments.
Delivery to Tenant of the aforedescribed Notice from Indenture Trustee shall be
conclusive and evidence as to Tenant of the right of Indenture Trustee to
receive such Rents and any other amounts and payment of the Rents and any other
amounts by Tenant to Indenture Trustee pursuant to such Notice shall constitute
performance in full of Tenant's obligation under the Lease for the payment of
such Rents and any other amounts to Landlord.
6. NOTICE.
(a) All notices, demands and requests (collectively the "NOTICE")
required or permitted to be given under this Agreement must be in writing and
shall be deemed to have been given if personally delivered or delivered by
reliable overnight courier or by facsimile transmission or mailed, first-class
postage pre-paid and shall be deemed delivered as of the date of such Notice if
(i) delivered to the party intended, (ii) delivered to the then current address
of the party intended, or (iii) rejected at the then current address of the
party intended, provided such Notice was sent prepaid. The addresses of the
parties are:
To Indenture Trustee:
Bankers Trust Company of California, N.A.
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: KPAC 1994 - C3 (QRP)
To Landlord:
DVPT Limited Partnership
c/o Archon Group, L.P.
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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To Tenant: With a copy to:
The ▇▇▇▇▇▇▇▇▇ Building ▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(b) Upon at least ten (10) days prior written Notice, each party shall
have the right to change its address to any other address within the United
States of America.
7. MISCELLANEOUS. This Agreement (i) contains the entire agreement with respect
to the subject matter hereof; (ii) may not be modified or terminated, nor may
any provision hereof be waived, orally or in any manner other than by an
agreement in writing signed by the parties hereto or their respective
successors, administrators and assigns; (iii) shall inure to the benefit of, and
be binding upon, the parties hereto, their successors and assigns and any
purchaser and its or their respective heirs, personal representatives,
successors and assigns (including, without limitation, (a) Tenant's permitted
assignees and (b) any purchaser of the Trust Property at a foreclosure sale or
any grantee under a deed in lieu of foreclosure, including affiliates of
Indenture Trustee and all of their successors and assigns); and (iv) shall run
with the land.
8. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state in which the Demised Premises is situated
in connection with any action, claim or proceedings relating to the Demised
Premises.
9. ESTOPPEL CERTIFICATE. Tenant shall, upon request by the Indenture Trustee or
successor in interest, execute and deliver an estoppel certificate to the
Indenture Trustee or such successor in interest in which Tenant certifies as to
whether or not Landlord is in default under the Lease, whether Tenant has any
credits, claims, setoffs or defenses against the Landlord and as to such other
matters which the Indenture Trustee or such successor may reasonably request.
10. CONFLICTS. In the event of any inconsistency or conflict between terms and
provisions of this Agreement and the Lease, the terms and provisions of this
Agreement shall control.
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IN WITNESS WHEREOF, Indenture Trustee, Landlord and Tenant have
executed this Agreement effective as of the day and year first above written.
"INDENTURE TRUSTEE"
Bankers Trust Company of California, N.A.
By:
------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: ▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: KPAC 1994 - C3 (QRP)
By:
------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
"LANDLORD"
DVPT Limited Partnership
By: New DVPT Corp., its general partner
By:
------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
"TENANT"
ART TECHNOLOGY GROUP, INC.
By:
------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: The ▇▇▇▇▇▇▇▇▇ Building
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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STATE OF ________________________ )
)
COUNTY OF _______________________ ) __________ __, 1999
Then personally appeared the above-named ____________________________,
__________________________________ of Bankers Trust Company of California,
N.A., and acknowledged the foregoing instrument to be his/her free act and
deed and the free act and deed of Bankers Trust Company of California, N.A.,
before me,
------------------------------------
(Seal)
Notary Public
My commission expires:
STATE OF ________________________ )
)
COUNTY OF _______________________ ) __________ __, 1999
Then personally appeared the above-named ____________________________,
__________________________ of New DVPT Corp., as General Partner of DVPT Limited
Partnership, and acknowledged the foregoing instrument to be his/her free act
and deed, the free act and deed of New DVPT Corp. and the free act and deed of
DVPT Limited Partnership, before me,
------------------------------------
(Seal)
Notary Public
My commission expires:
STATE OF )
)
COUNTY OF ) , 1999
Then personally appeared the above-named _________________, _________
of Art Technology Group, Inc., and acknowledged the foregoing instrument to
be his/her free act and deed and the free act and deed of Art Technology
Group, Inc. before me,
------------------------------------
(Seal)
Notary Public
My commission expires:
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EXHIBIT A
LEGAL DESCRIPTION OF LANDLORD'S PREMISES
(The ▇▇▇▇▇▇▇▇▇ Building, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇)
Beginning at a point, said point being the intersection of the westerly sideline
of First Street and the northerly sideline of Thorndike Street in the City of
Cambridge, County of Middlesex, Commonwealth of Massachusetts, bounded and
described as follows:
N 80 DEG. 28' - 11" W Along the northerly sideline of Thorndike Street a distance of Four Hundred
and Thirty Eight Hundredths feet (400.38') to a point, said point being the
intersection of the northerly sideline of Thorndike Street and the easterly
sideline of Second Street, thence turning and running;
N 09 DEG. 31' - 49" E Along the easterly sideline of Second Street a distance of Sixty and no
Hundredths feet (60.00'), to a point, thence turning and running;
S 80 DEG. 28' - 11" E A distance of One Hundred and No Hundredths feet (100.00') to a point,
thence turning and running;
N 09 DEG. 36' - 54" E A distance of One Hundred Forty and Seventy-Two Hundredths feet (140.72')
to a point, said being along the southerly sideline of ▇▇▇▇ Street, thence
turning and running;
S 80 DEG. 21' - 10" E Along said southerly sideline of ▇▇▇▇ Street a distance of Three Hundred and
No Hundredths feet (300.00') to a point, said point being the intersection of
said southerly sideline of ▇▇▇▇ Street and the westerly sideline of First Street,
thence turning and running;
S 09 DEG. 28' - 49" W Along said westerly sideline of First Street a distance of Two Hundred and
Eleven Hundredths feet (200.11') to a point of beginning.
Appurtenant to this parcel are leasehold parking rights as set forth in
a lease dated November 18, 1985 by and between Charlesport Limited Partnership
and the City of Cambridge a Notice of which was recorded in Deeds at Book 18968,
Page 68 for 250 parking spaces in Cambridge and leasehold parking rights as set
forth in a Lease dated March 10, 1985 made by and between the City of Cambridge
and Charlesport Limited Partnership, a Notice of which was recorded in Deeds at
Book 16059, Page 516.
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