1
EXHIBIT 10.6
LEASE OF ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
BETWEEN
FIREPOND INC., AS TENANT
AND
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., AS LANDLORD
March 25, 1999
2
LEASE OF
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
TABLE OF CONTENTS
PAGE
ARTICLE 1 BASIC LEASE PROVISIONS.....................................1
1.1 INTRODUCTION...............................................1
1.2 BASIC DATA.................................................1
1.3 ENUMERATION OF EXHIBITS....................................5
1.4 OTHER DEFINITIONS..........................................5
ARTICLE 2 PREMISES AND APPURTENANT RIGHTS............................6
2.1 LEASE OF PREMISES..........................................6
2.2 APPURTENANT RIGHTS AND RESERVATIONS........................6
ARTICLE 3 LEASE TERM, COMMENCEMENT DATE AND
BUILDING/PREMISES CONSTRUCTION.............................8
3.1 LEASE TERM.................................................8
3.2 COMPLETION OF THE BUILDING.................................8
3.3 PREPARATION OF THE PREMISES................................8
3.4 QUALITY AND PERFORMANCE OF WORK/CONCLUSIVENESS
OF LANDLORD'S PERFORMANCE..................................9
3.5 CONSTRUCTION REPRESENTATIVES...............................9
3.6 LANDLORD'S CONTRIBUTION...................................10
3.7 TENANT ENTRY..............................................10
ARTICLE 4 BASIC RENT/ADDITIONAL RENT................................10
4.1 PAYMENT...................................................10
ARTICLE 5 USE OF PREMISES...........................................11
5.1 PERMITTED USE.............................................11
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT...................12
ARTICLE 6 ASSIGNMENT AND SUBLETTING.................................13
6.1 PROHIBITION...............................................14
6.2 CONSENT TO SUBLEASE.......................................15
6.3 EXCESS PAYMENTS...........................................16
6.4 TERMINATION...............................................17
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TABLE OF CONTENTS
(continued)
PAGE
6.5 MISCELLANEOUS.............................................17
6.6 ACCEPTANCE OF RENT........................................19
6.7 COMPETITORS OF BGS SYSTEMS, INC...........................19
ARTICLE 7 REPAIRS AND SERVICES......................................21
7.1 LANDLORD REPAIRS..........................................21
7.2 TENANT REPAIRS............................................21
7.3 FLOOR LOAD - HEAVY MACHINERY..............................22
7.4 BUILDING SERVICES.........................................23
7.5 ELECTRICITY...............................................25
7.6 SERVICES PRIOR TO COMMENCEMENT DATE.......................27
7.7 INTERRUPTION OF SERVICES..................................27
ARTICLE 8 REAL ESTATE TAXES.........................................27
8.1 DEFINITIONS...............................................27
8.2 TENANT'S SHARE OF TAXES...................................28
8.3 REFUND OF TAXES...........................................29
ARTICLE 9 OPERATING EXPENSES........................................30
9.1 DEFINITIONS...............................................30
9.2 EXCESS OPERATING EXPENSES.................................31
9.3 TENANT'S AUDIT RIGHTS.....................................32
ARTICLE 10 INDEMNITY AND INSURANCE...................................33
10.1 TENANT'S INDEMNITY........................................33
10.2 GENERAL LIABILITY INSURANCE...............................33
10.3 TENANT'S RISK.............................................34
10.4 CERTIFICATES OF INSURANCE.................................34
10.5 INJURY CAUSED BY THIRD PARTIES............................34
10.6 WAIVER OF SUBROGATION.....................................35
ARTICLE 11 LANDLORD'S ACCESS TO PREMISES.............................35
11.1 LANDLORD'S RIGHT OF ENTRY.................................35
11.2 LANDLORD'S RIGHT TO CHANGE ENTRIES, ETC...................36
11.3 EXCAVATION................................................36
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 12 FIRE, EMINENT DOMAIN, ETC.................................37
12.1 ABATEMENT OF RENT.........................................37
12.2 LANDLORD'S RIGHT OF TERMINATION...........................37
12.3 RESTORATION...............................................37
12.4 AWARD.....................................................38
12.5 LANDLORD'S INSURANCE......................................38
ARTICLE 13 DEFAULT...................................................38
13.1 TENANT'S DEFAULT..........................................38
13.2 LANDLORD'S DEFAULT........................................44
ARTICLE 14 MISCELLANEOUS PROVISIONS..................................44
14.1 EXTRA HAZARDOUS USE.......................................44
14.2 WAIVER....................................................44
14.3 COVENANT OF QUIET ENJOYMENT...............................44
14.4 LANDLORD'S LIABILITY......................................45
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR......................46
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE.................46
14.7 RULES AND REGULATIONS.....................................47
14.8 ADDITIONAL CHARGES........................................47
14.9 INVALIDITY OF PARTICULAR PROVISIONS.......................47
14.10 PROVISIONS BINDING, ETC...................................47
14.11 RECORDING.................................................47
14.12 NOTICES...................................................47
14.13 WHEN LEASE BECOMES BINDING................................48
14.14 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS.........48
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR......................48
14.16 STATUS REPORT, FINANCIAL STATEMENTS.......................49
14.17 SECURITY DEPOSIT..........................................49
14.18 REMEDYING DEFAULTS........................................51
14.19 HOLDING OVER..............................................51
14.20 SURRENDER OF PREMISES.....................................51
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TABLE OF CONTENTS
(continued)
PAGE
14.21 BROKERAGE.................................................52
14.22 Y2K INDEMNIFICATION.......................................52
14.23 SIGNAGE...................................................52
14.24 GOVERNING LAW.............................................52
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LEASE
THIS INSTRUMENT IS A LEASE, dated as of March 25, 1999, in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
space in a certain building (the "Building") known as, and with an address at,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, being located in a multiple building
office park known as Waltham ▇▇▇▇▇ Corporate Center (the "Complex"). The parties
to this instrument hereby agree with each other as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. The following set forth basic data and identifying
Exhibits elsewhere hereinafter referred to in this Lease, and, where
appropriate, constitute definitions of the terms hereinafter listed.
1.2 BASIC DATA.
Landlord: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., a
Delaware limited liability company.
Landlord's Original Address: c/o Leggat ▇▇▇▇▇▇ Properties LLC,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇.
Landlord's Construction
Representative: Leggat ▇▇▇▇▇▇ Properties LLC,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇.
Tenant: FirePond Inc., a Minnesota
corporation.
Tenant's Original Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tenant's Construction
Representative: ▇▇▇▇▇▇▇▇ Interior Design, Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Premises: A portion of the third floor of the
Building as shown on EXHIBIT A
annexed hereto.
Premises Rentable Area: Agreed to be 29,534 square feet
located on the third floor of the
Building, as measured in accordance
with the Measurement Method.
Basic Rent: (i) (a) From the Commencement Date
through June 30, 2000, $982,005.50
($33.25 per square foot of Premises
Rentable Area) per annum;
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(b) From July 1, 2000 through
June 30, 2001, $996,772.50 ($33.75
per square foot of Premises Rentable
Area) per annum;
(c) From July 1, 2001 through
June 30, 2002, $1,011,539.50 ($34.25
per square foot of Premises Rentable
Area) per annum;
(d) From July 1, 2002 through
June 30, 2003, $1,026,306.50 ($34.75
per square foot of Premises Rentable
Area) per annum;
(e) From July 1, 2003 through
June 30, 2004, $1,041,073.50 ($35.25
per square foot of Premises Rentable
Area) per annum; and
(f) From July 1, 2004 through
December 31, 2004, $1,041,073.50
($35.25 per square foot of Premises
Rentable Area) per annum, as the
same may be adjusted and/or abated
pursuant to Section 12.1 hereof.
Estimated Electricity Payment: $25,103.90 (eighty-five cents
($0.85) per square foot of Premises
Rentable Area) per annum as a
payment toward the actual cost of
providing electricity to the
Premises, as the same may be
adjusted and/or abated pursuant to
Sections 7.5 and 12. 1.
Additional Rent: The Estimated Electricity Payment
and all other charges and sums
payable by Tenant as set forth in
this Lease, other than and in
addition to Basic Rent.
Lease Term: As defined in Section 3. 1.
Lease Year: A twelve (12) month period
commencing on the Commencement Date
and each successive twelve (12)
month period thereafter during the
Lease Term, except the last Lease
Year shall be the period commencing
July 1, 2004 through the end of the
Lease Term.
Security Deposit: An irrevocable Letter of Credit, as
defined in and subject to the
provisions of Section 14.17, in the
amount noted below.
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SECURITY DEPOSIT SECURITY DEPOSIT
AMOUNT REQUIRED IF AMOUNT REQUIRED IF
TOTAL AUDITED NET TOTAL AUDITED NET
EARNINGS ARE EARNINGS ARE
POSITIVE FOR NEGATIVE FOR
PREVIOUS FOUR FISCAL PREVIOUS FOUR FISCAL
QUARTERS BEGINNING QUARTERS BEGINNING
JULY 1, 1998 AND JULY 1, 1998 AND
LEASE YEAR ENDING JUNE 30, 1999 ENDING JUNE 30, 1999
----------------------------------------------------------------------------------------------------------------
1. July 1, 1999-June 30, 2000 $400,000 $550,000
----------------------------------------------------------------------------------------------------------------
2. July 1, 2000-June 30, 2001 $300,000 $450,000
----------------------------------------------------------------------------------------------------------------
3. July 1, 2001-June 30, 2002 $200,000 $400,000
----------------------------------------------------------------------------------------------------------------
4. July 1, 2002-June 30, 2003 $150,000 $300,000
----------------------------------------------------------------------------------------------------------------
5. July 1, 2003-December 31, 2003 $100,000 $250,000
----------------------------------------------------------------------------------------------------------------
6. January 1, 2004 - None $200,000
December 31, 2004
----------------------------------------------------------------------------------------------------------------
Brokers: CB ▇▇▇▇▇▇▇ ▇▇▇▇▇/Whittier Partners
and Leggat ▇▇▇▇▇▇ Properties LLC.
Agent: Leggat ▇▇▇▇▇▇ Properties LLC, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Attn:
Property Manager, or such other
person or entity from time to time
designated by Landlord.
Building Rentable Area: Agreed to be 173,070 square feet, as
measured in accordance with the
Measurement Method.
Business Days: All days except Saturday, Sunday,
New Year's Day, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Day, President's Day, Memorial Day,
Independence Day, Labor Day,
Columbus Day, Veterans Day,
Thanksgiving Day, and Christmas Day
(and the following day when any such
day occurs on Sunday).
Commencement Date: As defined in Section 3.1.
Default of Tenant: As defined in Section 13.1.
Force Majeure: Collectively and individually,
strikes or other labor trouble, fire
or other casualty, acts of God,
governmental preemption of
priorities or other controls in
connection
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with a national or other public
emergency or shortages of fuel,
supplies or labor resulting
therefrom, or any other cause,
whether similar or dissimilar,
beyond Landlord's reasonable
control.
Initial General Liability
Insurance: $3,000,000 per occurrence/
$5,000,000 aggregate (combined
single limit) for property damage,
bodily injury or death.
Measurement Method: "Standard Method for Measuring Floor
Area in Office Buildings,"
(Reprinted August 1990, American
National Standard ANSI Z65.1-1980)
(Reaffirmed 1989), (Approved June
21, 1989 by American National
Standards Institute, Inc.) prepared
for the Building Owners and Managers
Associations International.
Landlord's Contribution: An amount equal to $856,486 ($29.00
per square foot of Premises Rentable
Area).
Operating Year: As defined in Section 9.1.
Operating Expenses: As defined in Section 9.1.
Base Operating Expenses: Operating Expenses incurred for the
calendar year ending December 31,
1999, adjusted to 95% occupancy, and
as more particularly defined in
Section 9.1.
Building Operating Expenses: As defined in Section 9.1.
Common Site Operating Expenses: As defined in Section 9. 1.
Permitted Uses: General offices of the type
generally found in first-class
office buildings in the suburban
Boston area, subject to the
provisions of Section 5.1(a).
Site: The land area shown on the Site Plan
annexed as EXHIBIT B hereto,
including the properties known as
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇.
Tax Year: As defined in Section 8.1.
Taxes: As defined in Section 8.1.
Base Taxes: The actual Taxes for the Tax Year
commencing on July 1, 2000 and
ending on June 30, 2001 (and, to the
extent the Building has not been
substantially leased when such
actual Taxes are determined,
adjusted as though the Building had
been substantially leased at such
time), as such may have been abated
pursuant to Section 8.3, if at all,
multiplied by 0.95.
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Tax Expenses: As defined in Section 8.1.
Tax Parcel or Property: The Building and the land parcel(s)
on which the Building is located.
Tenant's Proportionate Share: As defined in Section 9.1.
Tenant's Removable Property: As defined in Section 5.2(b).
Building Standard: Materials of at least as good
quality as Landlord has elected at
the time of execution of this Lease
to use as part of its standard
construction substantially
throughout the Building, as such are
more particularly described in
EXHIBIT J hereto.
1.3 ENUMERATION OF EXHIBITS. The following Exhibits are a part of this
Lease, are incorporated herein by reference attached hereto, and are to
be treated as a part of this Lease for all purposes. Undertakings
contained in such Exhibits are agreements on the part of Landlord and
Tenant, as the case may be, to perform the obligations stated therein.
Exhibit A - Floor Plan of Premises
Exhibit B - Site Plan
Exhibit C - Tenant's Work Letter
Exhibit D - Plan Approval Agreement
Exhibit E - Operating Expenses
Exhibit F - Rules and Regulations
Exhibit G - Contractor's Insurance
Exhibit H - Subordination, Non-Disturbance and Attornment Agreement
Exhibit I - Base Building Condition
Exhibit J - Building Standard Materials
Exhibit K - Cleaning Specifications
Exhibit L - HVAC Building Design Criteria
Exhibit M - Competitors of BGS Systems, Inc.
1.4 OTHER DEFINITIONS. The following additional terms, whenever used in
this Lease (unless the context requires otherwise), shall have the
respective meanings specified in the Sections of this Lease set forth
below after such terms;
Adequate Assurance............................................Section 13.1(c)
Adequate Assurance of Future Performance ....................Section 13.1(d) and Section 13.1(f)
Affiliate.....................................................Section 6.7
Alterations...................................................Section 5.2
Bankruptcy Code...............................................Section 13.2
Base Building Work............................................Section 3.3
BGS...........................................................Section 6.7
BMC...........................................................Section 6.7
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Business Hours................................................Section 7.4(a)
Commencement Date.............................................Section 3.1
Default of Tenant.............................................Section 13.1(b)
Estimated Electricity Payment.................................Section 1.2
Essential Services............................................Section 7.7
Event of Bankruptcy...........................................Section 13.1
Issuing Bank..................................................Section 14.17(2)
Landlord's Contribution.......................................Exhibit C
Non-Renewal Notice............................................Section 14.17(2)
Notice Day....................................................Exhibit C
Overtime Service..............................................Section 7.4(a)
Permitted Minor Alterations...................................Section 5.2(a)
Plans.........................................................Section 3.2(a)
Requisition...................................................Exhibit C
Restriction Confirmation Request..............................Section 6.7
RFO...........................................................Section 6.7
RFO Acceptance................................................Section 6.7
RFO Notice....................................................Section 6.7
Rules and Regulations.........................................Section 14.7
Substantially damaged.........................................Section 12.2
Taxes.........................................................Section 8.1(a)
Tax Excess....................................................Section 8.2
Tax Expenses..................................................Section 8.1(c)
Tax Year......................................................Section 8.1(b)
Tenant's Removable Property...................................Section 5.2(b)
Tenant's Work.................................................Exhibit C
Tenant's Work Rules...........................................Exhibit C
Tenant's Dumpster Location....................................Exhibit C
Untenantable Conditions.......................................Section 7.7
Untenantable Premises.........................................Section 7.7
Year 2000 Compliant...........................................Section 14.22
Year 2000 Problems............................................Section 14.22
ARTICLE 2
PREMISES AND APPURTENANT RIGHTS
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant, and
Tenant hereby accepts from Landlord, the Premises depicted in the floor
plan(s) annexed hereto as EXHIBIT A, for the Lease Term and upon and
subject to the terms and conditions hereinafter set forth.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
appurtenant to the Premises, the non-exclusive right to use, and permit
its invitees to use in common with others, public or common lobbies,
hallways, stairways, elevators and the loading platform of the Building
and common roadways, driveways and walkways necessary for access to the
Building, and if the portion of the Premises on any floor
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includes less than the entire floor, the common toilets, corridors and
elevator lobby of such floor; but such rights shall always be subject
to the Rules and Regulations from time to time established by Landlord
pursuant to Section 14.7 and to the right of Landlord to designate and
change from time to time areas and facilities so to be used.
(b) Excepted and excluded from the Premises are the ceiling,
floor, perimeter walls and exterior windows (except the inner surface
of each thereof), and any space in the Premises used for shafts,
stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other Building facilities, but the entry doors (and related
glass and finish work) to the Premises are a part thereof, provided
that Tenant shall have the right to use the vertical penetrations of
the Building for its piping, conduits, sleeving and cabling with the
Landlord's prior written consent, such consent not to be unreasonably
withheld if such use by Tenant will not adversely affect (i) the
Landlord's utilization of such penetrations for the delivery of
services required to be provided by Landlord to any tenants of the
Building or (ii) the structural integrity of the Building. Landlord
shall have the right to place in the Premises interior storm windows,
sun control devices, utility lines, equipment, stacks, pipes, conduits,
ducts and the like, provided the same are concealed behind any then
existing walls and/or ceilings of the Premises or are installed in such
manner so as to reduce to a minimum interference with Tenant's use of
the Premises. In the event that Tenant shall install any hung ceilings
or walls in the Premises, Tenant shall install and maintain, as
Landlord may require, proper access panels therein to afford access to
any facilities above the ceiling or within or behind the walls.
(c) Tenant shall also have the right (subject to the Rules and
Regulations established pursuant to Section 14.7) to use without charge
therefor during the initial Lease Term (i) on an exclusive, reserved
basis, seventeen (17) parking spaces in the basement level of the
Building, provided, however, that Landlord shall not be obligated to
monitor the use of such parking spaces or enforce Tenant's exclusive
use against unauthorized users thereof (except that if Landlord is so
requested by Tenant, Landlord shall cooperate in all reasonable
respects and at Tenant's expense with Tenant's efforts to enforce
Tenant's exclusive use of such parking spaces against unauthorized
users thereof), and (ii) on a non-exclusive, unreserved basis and in
common with use by other tenants of the Complex, parking spaces in the
parking areas located on the lots on which the Building is situated in
an amount, which when aggregated with the parking spaces reserved in
(i) above, shall equal no more than 3.3 parking spaces per 1,000 square
feet of Premises Rentable Area. Landlord covenants that the other
tenants of the Building shall not be permitted to use, on an aggregate
basis, more than 3.3 parking spaces per 1,000 square feet of Building
Rentable Area on the parking areas located on the lots on which the
Building is situated. Landlord shall install and maintain, at Tenant's
expense, Building Standard signage identifying Tenant's reserved
parking spaces in the basement level of the Building. Landlord
acknowledges that Tenant shall have the right to monitor the use of
Tenant's reserved parking spaces in the basement level of the Building
and to enforce reasonably Tenant's exclusive use against unauthorized
users thereof, provided that Tenant shall provide
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Landlord with prompt, reasonably detailed written notice of any
enforcement measures Tenant has employed or will employ against
unauthorized users. The parking privileges granted herein are
non-transferable except to an assignee or subtenant permitted pursuant
to Article 6. Further, Landlord assumes no responsibility whatsoever
for loss or damage due to fire, theft or otherwise to any automobile(s)
parked in the Building or on the lots on which the Building is located
or to any personal property therein, and Tenant covenants and agrees,
upon request from Landlord from time to time, to notify its officers,
employees, agents and invitees of such limitation of liability. Tenant
acknowledges and agrees that a license only is hereby granted, and no
bailment is intended or shall be created.
ARTICLE 3
LEASE TERM, COMMENCEMENT DATE AND BUILDING/PREMISES CONSTRUCTION
3.1 LEASE TERM. The Lease Term and the estate hereby granted shall commence
on July 1, 1999 (the "Commencement Date") and shall expire and end on
December 31, 2004, or on such earlier date upon which the Lease Term
may expire or be terminated pursuant to any of the conditions or other
provisions of this Lease or pursuant to law.
3.2 COMPLETION OF THE BUILDING. On or before the Commencement Date, the
following conditions shall have been satisfied by Landlord:
(a) Reasonable means of access to the Premises and parking
areas on the lots on which the Building is located sufficient to
provide Tenant with its permitted parking in accordance with Section
2.2(c) hereof shall exist and those facilities reasonably necessary for
Tenant's occupancy of the Premises, including, without limitation, an
entrance lobby, elevators (which need not consist of all of the
elevators in the bank which serves the Premises), toilets, plumbing,
water, lighting and electrical power facilities shall have been
installed and shall be in reasonably good working order and be
available to Tenant, but excluding the amenities described in Section
7.4(b)(vi) and (vii); and
(b) The heating, ventilating and air conditioning systems
reasonably necessary for Tenant's occupancy of the Premises and the
common areas shall have been installed and shall be in reasonably good
operating order and capable of providing the applicable services in
accordance with the specifications set forth in EXHIBIT L hereto,
subject to reasonable periods of adjustment and balancing required with
respect thereto.
3.3 PREPARATION OF THE PREMISES. Except for the work to be performed by
Landlord as expressly set forth and described in EXHIBIT I hereto
("Base Building Work"), the Premises shall be delivered to and accepted
by Tenant "as is," in their then state of construction, finish and
decoration, without any additional obligation on the part of Landlord
to prepare or construct the Premises for Tenant's occupancy. Tenant
acknowledges that the Premises are to be delivered in so-called "shell"
condition and substantial work must be performed by Tenant before the
Premises can be occupied by
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Tenant for the conduct of its business. All of such work necessary to
prepare the Premises for Tenant's occupancy shall be performed by
Tenant in accordance with the provisions of EXHIBIT C hereto including
the obligation to obtain an amendment to the certificate of occupancy
for the Building allowing occupancy and use of the Premises. Landlord
shall cooperate with Tenant in its application for any certificate of
occupancy including prompt execution of any necessary applications
therefor or filings in connection therewith requested reasonably by
Tenant. Notwithstanding the foregoing, Section 5.2(a) of this Lease and
the provisions of this Lease setting forth Tenant's insurance
obligations (i.e., Sections 10.2 and 10.3) shall not apply during the
performance of Tenant's Work and such matters shall, during such time,
be governed by the applicable provisions of EXHIBIT C hereto.
3.4 QUALITY AND PERFORMANCE OF WORK/CONCLUSIVENESS OF LANDLORD'S
PERFORMANCE. All construction work required or permitted by this Lease
shall be done in a good and workmanlike manner with Building Standard
materials, or, if not applicable, new, first-class materials, in a
lien-free manner and in compliance with all applicable laws and
requirements of public authorities and insurance bodies related to, or
arising out of the performance of, such construction work. Each party
may inspect the work of the other at reasonable times, and the
Construction Representative of each party shall promptly give notice of
any approvals and other actions on the party's behalf required to be
given in connection with design and construction. Except to the extent
to which Tenant shall have given Landlord notice, not later than the
end of the second full calendar month of the Lease Term next beginning
after the Commencement Date, of specific respects in which Landlord has
not performed the Base Building Work, Tenant shall be deemed
conclusively to have approved all such work and shall have no claim
that Landlord has failed to perform or has improperly performed any of
the Base Building Work, except for latent defects in such work not
reasonably capable of discovery by Tenant by the end of such second
full calendar month, and except as expressly provided herein, the
Premises will be leased in their condition on the Commencement Date AS
IS WITHOUT REPRESENTATION OR WARRANTY by Landlord. Notwithstanding the
foregoing, Landlord hereby represents and warrants to Tenant that: (i)
the Base Building Work will be undertaken in accordance with all
applicable laws, codes and ordinances, including without limitation the
Americans With Disabilities Act of 1990, (ii) Landlord has not received
from any governmental agency having jurisdiction any written notice to
the effect that the Premises are in violation of any applicable law,
code or ordinance, which violation remains outstanding as of the date
hereof, (iii) on the Commencement Date, and (iv) the Base Building Work
will comply with the Americans With Disabilities Act of 1990 on the
Commencement Date, no hazardous substances, hazardous materials, PCB's
or friable and accessible asbestos containing materials will be present
in the Premises or Building which would require remediation under
applicable law. To the extent that Tenant will be responsible for
maintenance and/or repair of any item of work included in the Base
Building Work, then Landlord shall use reasonable efforts to obtain
from Landlord's contractor a warranty for the benefit of Tenant
covering such items.
3.5 CONSTRUCTION REPRESENTATIVES. Any action or failure to act by
Landlord's Construction Representative or by Tenant's Construction
Representative shall be deemed
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to be the action or failure to act of Landlord or Tenant, as the case
may be, solely in respect to construction matters in connection with
the performance of the Base Building Work and Tenant's Work. Landlord
and Tenant each shall have the right to change their respective
Construction Representatives by notice in accordance with Section 14.12
hereof, except that, where Tenant seeks to change its Construction
Representative, Tenant shall consult with Landlord in the selection of
any substitute Tenant's Construction Representative and shall provide
to Landlord a list of at least three (3) parties from which Tenant
intends to select a substitute Tenant's Construction Representative.
Landlord shall have the right to object to any person or party
identified on such list and, in such case, shall specify in writing to
Tenant the grounds for such objection. Notwithstanding anything to the
contrary herein contained, if Landlord shall object to all persons or
parties identified on such list, the grounds for each such objection
must be reasonable. Tenant shall have the right to substitute for
Tenant's Construction Representative any party identified on such list
who is not objected to by Landlord (in the manner provided above)
within five (5) Business Days of submission of such list to Landlord.
3.6 LANDLORD'S CONTRIBUTION. Landlord agrees to pay to Tenant, as a
contribution towards Tenant's Work "Landlord's Contribution" as
provided in, and subject to the provisions of, EXHIBIT C hereto. If
Landlord shall default in the payment of any portion of Landlord's
Contribution, Tenant shall be entitled to offset such amount against
the Basic Rent next payable under this Lease.
3.7 TENANT ENTRY. Subject to the provisions of EXHIBIT C, commencing on the
date hereof, Landlord shall permit Tenant to enter the Premises for the
purpose of performing Tenant's Work, when in Landlord's judgment the
same can be done without any interference with Landlord's performance
of the remaining Base Building Work. Any such entry shall be at
Tenant's sole risk and Landlord shall not be responsible for any damage
or loss to property or installations placed in the Premises by Tenant
prior to the Commencement Date. In addition, in no event shall Tenant
make use of any labor in the Building or otherwise suffer or permit any
action to be taken which would result in labor difficulties or
otherwise delay the performance by Landlord of its remaining work.
Prior to performing any of Tenant's Work, Tenant shall provide Landlord
with proof of insurance in accordance with EXHIBIT C hereto.
ARTICLE 4
BASIC RENT/ADDITIONAL RENT
4.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
Landlord, commencing on the Commencement Date without offset, abatement
(except as provided in Section 7.7 or Section 12.1), deduction or
demand, the Basic Rent and Additional Rent. Basic Rent shall be payable
in equal monthly installments, in advance, on the first day of each and
every calendar month during the Lease Term, at Landlord's Original
Address, or at such other place as Landlord shall from time to time
designate by notice, in lawful money of the United States. In the event
that (i) any installment of Basic Rent or Additional Rent is not paid
within five (5) days of the date when due, or (ii) Tenant fails to pay
any installment of Basic Rent or Additional Rent on the date when due
and such failure shall occur more than twice in any calendar year, then
Tenant shall pay, in an
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addition to any charges under Section 14.18, at Landlord's request an
administrative fee equal to three percent (3%) of the overdue payment.
Landlord and Tenant agree that all amounts due from Tenant under or in
respect of this Lease, whether labeled Basic Rent, Additional Rent or
otherwise, shall be considered as rental reserved under this Lease for
all purposes, including without limitation regulations promulgated
pursuant to the Bankruptcy Code, and including further without
limitation, Section 502(b) thereof.
(b) Basic Rent for any partial month shall be pro-rated on a
daily basis, and if the first day on which Tenant must pay Basic Rent
shall be other than the first day of a calendar month, the first
payment which Tenant shall make to Landlord shall be equal to a
proportionate part of the monthly installment of Basic Rent for the
partial month from the first day on which Tenant must pay Basic Rent to
the last day of the month in which such day occurs, plus the
installment of Basic Rent for the succeeding calendar month.
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
occupied by Tenant only for Permitted Uses specifically excluding,
without limitation, use for medical, dental, governmental, utility
company or employment agency offices. Tenant shall not use, or suffer
or permit the use of, or suffer or permit anything to be done in or
anything to be brought into or kept in or about the Premises or the
Building or any part thereof (a) which would violate any of the
provisions of this Lease, (b) for any unlawful purposes or in any
unlawful manner, (c) which is not normally found in first-class office
buildings in the greater Boston area, or (d) which, in the reasonable
judgment of Landlord, shall in any way (i) impair or tend to impair the
appearance or reputation of the Building or the Complex or (ii) impair
or interfere with or tend to impair or interfere with any of the
Building services or the proper and economic heating, ventilation,
cleaning, air conditioning or other servicing of the Building or
Premises, or with the use of any of the other areas of the Building, or
occasion discomfort, inconvenience or annoyance to, any of the other
tenants or occupants of the Building or the Complex.
(b) Tenant agrees to conform to the following provisions
during the Lease Term of this Lease:
(i) Tenant shall cause all freight to be delivered to or
removed from the Building and the Premises in
accordance with reasonable rules and regulations
established by Landlord therefor;
(ii) Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of
doors and interior surfaces of windows) or on any
part of the Building outside the Premises, any signs,
symbol, advertisement or the like visible to public
view outside of the Premises. Landlord will not
withhold consent for signs, corporate logos or
lettering on the entry doors to the Premises provided
such signs conform to building standards
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adopted by Landlord in its sole discretion and Tenant
has submitted to Landlord a plan or sketch in
reasonable detail (showing, without limitation, size,
color, location, materials and method of affixation)
of the sign to be placed on such entry doors.
Landlord agrees, however, to maintain, at its expense
and in accordance with building standards adopted by
Landlord in its sole discretion, a tenant directory
in the lobby of the Building (and, in the case of
multi-tenant floors, in that floor's elevator lobby)
in which will be placed Tenant's name and the
location of the Premises in the Building;
(iii) Tenant shall not perform any act or carry on any
practice which may injure the Premises, or any other
part of the Building, or cause any offensive odors or
loud noise or constitute a nuisance or a menace to
any other tenant or tenants or other persons in the
Building;
(iv) Tenant shall, in its use of the Premises, comply with
the requirements of all applicable governmental laws,
rules and regulations, including without limitation
the Americans With Disabilities Act of 1990; and
(v) Tenant shall continuously throughout the Lease Term
occupy the Premises for Permitted Uses.
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT. (a) Tenant shall make no
alterations, additions (including, for the purposes hereof,
wall-to-wall carpeting), or improvements (collectively, "Alterations")
after the completion of Tenant's Work in or to the Premises without
Landlord's prior written consent. Notwithstanding the foregoing, with
respect to non-structural Alterations that do not affect the Building's
electrical, plumbing or mechanical systems, (i) Landlord's consent
shall not be required if the cost of such Alterations is less than
$10,000 per individual instance and, when aggregated with the cost of
all other Alterations performed by Tenant over the preceding one year
period, is less than $30,000, so long as Tenant notifies Landlord in
writing at least three (3) Business Days prior to commencing any such
Alterations as to the nature, scope and estimated cost of such
Alterations ("PERMITTED MINOR ALTERATIONS"); and (ii) Landlord's prior
written consent shall not be unreasonably withheld or delayed if the
cost of such Alterations is $10,000 or more per individual instance or
if, when aggregated with the cost of all other Alterations performed by
Tenant over the preceding one year period, is $30,000 or more. All
Alterations shall be solely at Tenant's expense. Tenant shall indemnify
Landlord from any costs or expenses resulting from Tenant's
implementation of the Permitted Minor Alterations. Any Alterations,
additions or improvements shall be in accordance with complete plans
and specifications meeting the requirements set forth in the Rules and
Regulations from time to time in effect and approved in advance by
Landlord. Landlord shall approve or disapprove of Tenant's proposed
Alterations within ten (10) Business Days of Landlord's receipt of such
complete plans and specifications and the other required deliveries and
information from Tenant set forth in the Rules and
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Regulations. Landlord shall inform Tenant, at the time of its approval
of any Alterations, whether Landlord will require such Alterations to
be removed by Tenant upon the expiration or earlier termination of the
Lease. Such Alterations work shall (i) be performed in a good and
workmanlike manner and in compliance with all applicable laws, (ii) be
made at Tenant's sole cost and expense and at such times and in such a
manner as Landlord may from time to time designate, (iii) be made only
in accordance with the Rules and Regulations from time to time in
effect with respect thereto, and (iv) become part of the Premises and
the property of Landlord. If any Alterations shall involve the removal
of fixtures, equipment or other property in the Premises which are not
Tenant's Removable Property, such fixtures, equipment or property shall
be promptly replaced by Tenant at its expense with new fixtures,
equipment or property of like utility and of at least equal quality.
The provisions of this Section 5.2(a) shall not apply to Tenant's Work,
the performance of which shall be governed by EXHIBIT C hereto and the
other provisions of this Lease, subject to the last sentence of Section
3.3 and Section 7.6 of this Lease.
(b) All articles of personal property and all business
fixtures, machinery and equipment and furniture owned or installed by
Tenant solely at its expense in the Premises ('Tenant's Removable
Property") shall remain the property of Tenant and may be removed by
Tenant at any time prior to the expiration of this Lease, provided that
Tenant, at its expense, shall repair any damage to the Building caused
by such removal. Tenant shall remove, at its sole expense, on the
expiration or earlier termination of this Lease, all cabling installed
at the Premises pursuant to the Plans.
(c) Notice is hereby given that Landlord shall not be liable
for any labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic's or other lien for any such labor or
materials shall attach to or affect the reversion or other estate or
interest of Landlord in and to the Premises. To the maximum extent
permitted by law, before such time as any contractor commences to
perform work on behalf of Tenant, such contractor (and any
subcontractors) shall furnish a written statement acknowledging the
provisions set forth in the prior clause. Whenever and as often as any
mechanic's lien shall have been filed against the Building or all or
any part of the Site based upon any act or interest of Tenant or of
anyone claiming through Tenant, Tenant shall forthwith take such action
by bonding, deposit or payment as will remove or satisfy the lien.
(d) In the course of any work being performed by Tenant
(including without limitation the "field installation" of any Tenant's
Removable Property), Tenant agrees to use labor compatible with that
being employed by landlords for work in or to the Building or other
buildings in the Complex and not to employ or permit the use of any
labor or otherwise take any action which might result in a labor
dispute involving personnel providing services in the Building pursuant
to arrangements made by Landlord.
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ARTICLE 6
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION. (a) Except as expressly permitted in this Article 6,
Tenant covenants and agrees that, whether voluntarily, involuntarily,
by operation of law or otherwise, neither this Lease nor the Lease Term
and estate hereby granted, nor any interest herein or therein, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred, and
that neither the Premises nor any part thereof will be encumbered in
any manner by reason of any act or omission on the part of Tenant, or
used or occupied or permitted to be used or occupied by anyone other
than Tenant, or for any use or purpose other than a Permitted Use, or
be sublet (which term, without limitation, shall include granting of
concessions, licenses and the like) in whole or in part, or be offered
or advertised for assignment or subletting. Without limiting the
foregoing, any agreement pursuant to which: (y) Tenant is relieved from
the obligation to pay, or a third party agrees to pay on Tenant's
behalf, all or any portion of Basic Rent or Additional Rent due under
this Lease; and/or (z) a third party undertakes or is granted the right
to assign or attempt to assign this Lease or sublet or attempt to
sublet all or any portion of the Premises shall for all purposes hereof
be deemed to be an assignment of this Lease and subject to the
provisions of this Article 6. The provisions of this Section 6.1(a)
shall apply to a transfer (by one or more transfers) of a majority of
the stock or partnership interests or other evidences of ownership of
Tenant as if such transfer were an assignment of this Lease. If there
is an initial public offering of the stock of the Tenant or if Tenant
at any time is or becomes a publicly traded company, the transfer of
less than a majority of the stock of Tenant on a public stock exchange
shall not be deemed an assignment within the meaning of this Article 6.
The merger or consolidation of Tenant into or with any other entity, or
the sale of all or substantially all of its assets, shall be deemed to
be an assignment within the meaning of this Article 6.
(b) Anything in Section 6.1(a) to the contrary
notwithstanding, transactions with an entity (i) into or with which
Tenant is merged or consolidated, (ii) to which substantially all of
Tenant's assets are transferred as a going concern, or (iii) which
controls or is controlled by Tenant or is under common control with
Tenant, shall not be deemed to be an assignment or subletting within
the meaning of this Article 6, provided that in any of such events:
(i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting
principles consistently applied at least equal to the
net worth of Tenant herein named on the date of this
Lease,
(ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord prior to the
effective date of any such transaction,
(iii) the assignee or subtenant agrees directly with
Landlord, by written instrument in form satisfactory
to Landlord, to be bound by all the obligations of
Tenant hereunder including, without limitation, the
covenant against further assignment and subletting,
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(iv) in no event shall Tenant (or the entity into which
Tenant is merged or consolidated under clause (i)
above) be released from its obligations under this
Lease, and
(v) any such transfer or transaction is for a legitimate,
regular business purpose of Tenant other than a
transfer of Tenant's interest in this Lease.
(c) If, in violation of this Article 6, this Lease be
assigned, or if the Premises or any part thereof be sublet or occupied
by anyone other than Tenant, Landlord may, at any time and from time to
time, collect rent and other charges from the assignee, subtenant or
occupant, and apply the net amount collected to the rent and other
charges herein reserved, but no such assignment, subletting, occupancy,
collection or modification of any provisions of this Lease shall be
deemed a waiver of this covenant, or the acceptance of the assignee,
subtenant or occupant as a tenant, or a release of Tenant from the
further performance by Tenant of all the terms, conditions and
covenants on the part of Tenant to be performed hereunder. Any consent
by Landlord to a particular subletting or occupancy shall not in any
way diminish the prohibition stated in paragraph (a) of this Section
6.1 or the continuing liability of the original named Tenant. No
assignment shall be binding on Landlord unless such assignee or Tenant
shall deliver to Landlord a duplicate original of the instrument of
assignment which contains a covenant of assumption by the assignee of
all of the obligations aforesaid and shall obtain from Landlord the
aforesaid written consent, prior thereto. No assignment or subletting
hereunder shall relieve Tenant from its obligations hereunder and
Tenant shall remain fully and primarily liable therefor. No such
assignment, subletting, or occupancy shall affect or be contrary to
Permitted Uses. Any consent by Landlord to a particular assignment,
subletting or occupancy shall be revocable, and any assignment,
subletting or occupancy shall be void ab initio if the same shall fail
to require that such assignee, subtenant or occupant agree therein to
be independently bound by and upon all of the covenants, agreements,
terms, provisions and conditions set forth in this Lease on the part of
Tenant to be kept and performed.
6.2 CONSENT TO SUBLEASE.
Notwithstanding the prohibition set forth in Section 6.1(a), but
subject to Section 6.7, the following provisions shall govern Tenant's
subletting of the Premises:
Landlord shall not unreasonably withhold its consent to one or more
sublettings requested by Tenant, provided further that:
(i) The business of each proposed subtenant and its use
of the Premises shall be consistent with the
Permitted Uses, including the specific exclusions
therefrom set forth in Section 5.1 hereof;
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(ii) In the reasonable judgment of Landlord the proposed
subtenant is of a character and financial condition
such as is in keeping with the standards of Landlord
in those respects for the Building and the Complex;
(iii) Neither the proposed subtenant, nor any person or
entity who directly or indirectly controls, is
controlled by, or is under common control with, the
proposed subtenant or any person who controls the
proposed subtenant, shall be (A) a government entity
(or subdivision or agency thereof), or (B) a person
or entity which is negotiating (or which has, in the
last twelve (12) months, negotiated) with Landlord
for the rental of any space in the Site, provided
Landlord has available, or will have available within
six (6) months from the effective date of the
proposed sublease, in Landlord's Buildings at the
Site, compatible space in size to the space proposed
to be sublet (compatible space being defined as plus
or minus ten percent (10%) of the space proposed to
be sublet);
(iv) The form of the proposed sublease shall be reasonably
satisfactory to Landlord and shall comply with the
applicable provisions of this Article 6;
(v) No proposed sublease for which the sublet space shall
be physically segregated shall cover less than 3,000
square feet of Premises Rentable Area and Tenant
shall, upon Landlord's request, remove such physical
segregation prior to the expiration of the Lease
Term;
(vi) Not later than thirty (30) days prior to the proposed
commencement of such sublease, Landlord shall have
received information reasonably sufficient to
determine compliance with the foregoing conditions;
and
(vii) in no event shall Tenant be released from its
obligations under this Lease.
Moreover, notwithstanding any such sublease which may be permitted hereunder or
consented to by Landlord, Tenant shall in all cases remain fully and primarily
liable hereunder.
6.3 EXCESS PAYMENTS. In the event that Tenant shall enter into one or more
subleases pursuant to Section 6.2, if the rent and other sums
(including without limitation the fair value of any services provided
by such subtenant for Tenant) on account of any such sublease exceed
the Basic Rent and Additional Rent allocable to that portion of the
Premises subject to such sublease, plus actual out-of-pocket third
party expenses reasonably incurred by Tenant in connection with such
sublease (such expenses to be pro-rated evenly over the term of such
sublease), including, without limitation,
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reasonable brokerage commissions actually paid to a licensed broker,
reasonable attorneys' fees and commercially reasonable tenant
improvements, Tenant shall pay to Landlord, as an additional charge,
fifty percent (50%) of such excess, such amount to be paid monthly with
payments by Tenant of Basic Rent hereunder.
6.4 TERMINATION. Notwithstanding any other provision of this Article 6 to
the contrary, if and at each such time as Tenant shall intend to enter
into any sublease, the term of which sublease is for seventy-five
percent (75%) or more of the then remaining initial Lease Term, then
Tenant shall give Landlord notice of such intent not earlier than
ninety (90), and not later than sixty (60), days prior to the effective
date of such proposed sublease, and Landlord may then elect to
terminate this Lease only with respect to that portion of the Premises
proposed to be covered by such sublease by giving notice to Tenant of
such election not later than forty-five (45) days after receipt of
Tenant's notice and, upon the giving of such notice by Landlord, this
Lease shall terminate with respect to such portion sixty (60) days
after the giving of such notice by Landlord with the same force and
effect as if such date were the date originally set forth herein as the
expiration date hereof. If Landlord shall elect to terminate this Lease
with respect to any portion of the Premises as hereinabove provided,
then from and after the effective date of such termination, the
definitions of Basic Rent, Premises Rentable Area, and Tenant's
Proportionate Share shall be adjusted to reflect that portion of the
Premises that remains subject to this Lease after such termination.
6.5 MISCELLANEOUS. (a) Any sublease consented to by Landlord shall be
expressly subject and subordinate to all of the covenants, agreements,
terms, provisions and conditions contained in this Lease. Any proposed
sub-sublease or proposed assignment of a sublease shall be subject to
the provisions of this Article 6. Tenant shall reimburse Landlord on
demand, as an additional charge, for any reasonable costs (including
reasonable attorneys' fees and expenses) incurred by Landlord in
connection with any actual or proposed assignment or sublease, whether
or not consummated, including the costs of making investigations as to
the acceptability of the proposed assignee or subtenant, except Tenant
shall not be obligated to so reimburse Landlord in the event Landlord
elects to recapture Tenant's space with respect to such proposed
assignment or sublease as provided in Section 6.4. Any sublease to
which Landlord gives its consent shall not be valid or binding on
Landlord unless and until Tenant and the sublessee execute a consent
agreement in form and substance satisfactory to Landlord.
(b) Notwithstanding any sublease, or any amendments or
modifications subsequent thereto, Tenant will remain fully liable for
the payment of Basic Rent, Additional Rent and other charges and for
the performance of all other obligations of Tenant contained in this
Lease, except as such obligations may be affected by Landlord's
recapture of a portion of Tenant's space pursuant to Section 6.4. Any
act or omission of any subtenant, or of anyone claiming under or
through any subtenant, that violates any of the obligations of this
Lease shall be deemed a violation of this Lease by Tenant.
(c) The consent by Landlord to any sublease shall not relieve
Tenant or any person claiming through or under Tenant of the
obligations to obtain the
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consent of Landlord, pursuant to the provisions of this Article 6, to
any subsequent sublease.
(d) With respect to each and every sublease authorized by
Landlord under the provisions of this Article 6, it is further agreed
that any such sublease shall provide that: (i) the term of the sublease
must end no later than one day before the last day of the Lease Term of
this Lease; (ii) no sublease shall be valid, and no subtenant shall
take possession of all or any part of the Premises until a fully
executed counterpart of such sublease has been delivered to Landlord;
(iii) each sublease shall provide that it is subject and subordinate to
this Lease; (iv) Landlord may enforce the provisions of the sublease,
including collection of rents; (v) in the event of termination of this
Lease or reentry or repossession of the Premises by Landlord, Landlord
may, at its option, take over all of the right, title and interest of
Tenant, as sublessor, under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord but nevertheless Landlord shall
not (A) be liable for any previous act or omission of Tenant under such
sublease; (B) be subject to any defense or offset previously accrued in
favor of the subtenant against Tenant; or (C) be bound by any previous
modification of such sublease made without Landlord's written consent
or by any previous prepayment of more than one month's rent.
(e) If Landlord shall rightfully fail or refuse to give its
consent to any proposed assignment or sublease, and such failure to
consent is not in violation of the terms and provisions of this Lease,
Tenant shall indemnify and hold harmless Landlord from and against any
and all loss, liability, costs and expenses (including, without
limitation, reasonable attorneys' fees) asserted against, imposed upon
or incurred by Landlord by reason of any claims made against Landlord
by the proposed assignee or sublessee or by any brokers, finders or
other persons for commissions or other compensation in connection with
the proposed assignment or sublease.
(f) If Landlord grants its consent to an assignment or
sublease and such assignment or sublease does not become effective for
any reason for ninety (90) days after the granting of such consent, or
if such assignment or sublease is modified or amended prior to its
becoming effective, then and in either such event, Landlord's consent
shall be deemed to have been withdrawn and Tenant shall not have the
right to assign this Lease or to sublease all or any portion of the
Premises without once again complying with the provisions and
conditions of this Article 6. In no event shall Tenant agree to modify
or amend any sublease to which Landlord has consented without
Landlord's prior written consent.
(g) Except as expressly provided in Section 6.4 hereof, the
joint and several liability of Tenant and any assignee or successor of
Tenant under this Lease shall not be discharged, released or impaired
in any respect by any agreement or stipulation made by Landlord
modifying any of the obligations contained in this Lease, or by any
waiver or failure by Landlord to enforce any of the obligations of this
Lease. but in no event shall Tenant's continued liability
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exceed what its continuing liability would have been had the Lease not
been modified except for those modifications, if any, which were
consented to by Tenant.
(h) The listing of any name other than Tenant on the door of
the Premises, on the Building directory or otherwise, shall not operate
to vest any right or interest in this Lease or in the Premises in any
other person or entity, nor shall such listing be deemed to be the
consent of Landlord to any assignment or transfer of this Lease or to
any sublease of the Premises or any portion thereof or the use or
occupancy of the Premises or any portion thereof by others.
6.6 ACCEPTANCE OF RENT. If this Lease is assigned, whether or not in
violation of the provisions of this Lease, Landlord may collect rent
from the assignee. If all or any part of the Premises are sublet,
whether or not in violation of this Lease, Landlord may, after default
by Tenant and expiration of Tenant's time to cure such default, collect
rent from the subtenant. In either event, Landlord may apply the net
amount collected to payment of Basic Rent and Additional Rent, but no
such assignment, subletting, or collection shall be deemed a waiver of
any of the provisions of this Article 6, an acceptance of the assignee
or subtenant as a lessee, or a release of Tenant from the performance
by Tenant of Tenant's obligations under this Lease.
6.7 COMPETITORS OF BGS SYSTEMS, INC. Notwithstanding anything to the
contrary herein, for so long as BGS Systems, Inc. ("BGS") or an
Affiliate is in actual occupancy of at least 75% of its Premises
Rentable Area in the Complex, Tenant shall not assign the Lease or
sublet all or any portion of its Premises Rentable Area to a Competitor
of BGS listed on EXHIBIT M attached hereto, subject, however, in all
respects to the succeeding provisions of this Section 6. The foregoing
restriction shall not apply to Tenant subletting all or a portion of
its Premises Rentable Area or assigning this Lease to a Competitor if,
pursuant to the terms of this Lease, Tenant has satisfied all
conditions precedent set forth in this Lease to an assignment of the
Lease or a subletting of all or any portion of the Premises Rentable
Area including, without limiting any of the other provisions set forth
in the Lease to Tenant's right to assign this Lease or sublet the
Premises Rentable Area, the obligation to first offer an assignment of
this Lease or the Premises Rentable Area proposed to be sublet by
Tenant to BMC Software, Inc. ("BMC"), an Affiliate of BGS, in the
following fashion. Such right of first offer ("RFO") shall be
implemented by Tenant giving notice (the "RFO Notice") to BMC at the
address and in the manner specified below. A copy of such RFO Notice
shall be delivered to Landlord at its notice address provided in
Section 14.12 of this Lease. The RFO Notice shall specify the bona fide
economic and other principal terms on which Tenant intends to assign
this Lease or sublet all or any portion of the Premises Rentable Area
to a Competitor listed on EXHIBIT M hereto, accompanied by Tenant's
written proposal made to such Competitor. If, not later than midnight
of the second (2nd) Business Day following receipt by BMC of the RFO
Notice, Tenant has not received a written notice from BMC electing to
accept Tenant's transaction terms set forth in the RFO Notice, then the
RFO shall be of no further force or effect and Tenant may undertake to
assign the Lease or sublet the Premises Rentable Area at any time
thereafter to such Competitor without again complying with the RFO
provisions herein set forth. If, however, (i) BMC
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timely elects in writing to accept the transaction terms set forth in
the RFO Notice (the "RFO Acceptance"), and (ii) within twenty (20)
Business Days after receipt by Tenant of the RFO Acceptance, Tenant and
BGS or BMC, as the case may be, fail to execute and deliver documents
in consummation of the terms specified in the RFO Notice for any reason
whatsoever or no reason, then, in such event, the RFO shall be of no
further force and effect and Tenant may undertake to assign this Lease
or sublet the Premises Rentable Area at any time thereafter to such
Competitor without again complying with the RFO provisions herein set
forth.
The foregoing restriction shall not apply (i) if, as noted above, BGS
or its Affiliates are not in actual occupancy of at least 75% of its Premises
Rentable Area in the Complex; (ii) to Affiliates of a Competitor; (iii) to a
Competitor if, after a merger or consolidation by a Competitor with another
entity, or a sale, lease, license or other disposition by a Competitor of all or
substantially all of its assets to another entity, whether in one transaction or
series of transactions, such Competitor is not a surviving entity; or (iv) if,
after a merger or consolidation by BMC with another entity, or a sale, lease,
license or other disposition by BMC of all or substantially all of its assets to
another entity, whether in one transaction or a series of transactions, BMC is
not the surviving entity.
For so long as the restriction prohibiting Tenant from leasing space in
the Complex to a Competitor listed in EXHIBIT M hereto is in force and
applicable, Tenant shall have the right, at any time and from time during the
Lease Term, to request in writing of Landlord and BMC a determination as to
whether the foregoing restriction remains in force and applicable (a
"Restriction Confirmation Request"). Within thirty (30) calendar days after
receipt of Tenant's Restriction Confirmation Request, Landlord or BMC shall
notify Tenant as to whether the restriction set forth in EXHIBIT M hereto
remains in force and applicable. Landlord's and BMC's failure to respond to any
Restriction Confirmation Request (if the same shall continue for an additional
thirty (30) calendar days after receipt of a second notice of a Restriction
Confirmation Request, which second notice shall state that Landlord and BMC have
failed to respond within the period required under this Section 6.7 of the Lease
and continued failure to respond shall be deemed a Landlord confirmation that
such restriction is no longer in force and applicable) shall constitute
Landlord's and BMC's affirmation, acknowledgment and consent that, for the
balance of the Lease Term, the leasing restriction set forth in this Section 6.7
of the Lease shall no longer be applicable.
For purposes of this Section 6.7 only, an "Affiliate" means (i) any
entity directly or indirectly controlling, controlled by or under common control
with such entity; (ii) any entity owning or controlling ten percent (10%) or
more of the outstanding voting interests of such entity; or (iii) any entity of
which such entity owns or controls ten percent (10%) or more of the voting
interests.
Tenant's RFO Notice to BMC shall be in writing and shall be sent by
registered or certified mail, postage prepaid, return receipt requested or by a
nationally recognized overnight courier service (next Business Day delivery) to
BMC at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ATTN: Manager of Corporate
Real Estate with a copy to the Landlord at the address set forth in Section
14.12 hereof (or at such other address or addresses as may from time to time
hereafter be designated by Landlord or BMC by like notice).
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Such notices shall be given, and shall be deemed to have been given and
received, when so hand delivered (against a signed receipt) or three (3) days
after such deposit of such notice by certified or registered mail, or one (1)
day after such deposit of such notice with a nationally recognized overnight
courier; and in the case of failure to deliver by reason of changed address of
which no notice was given or refusal to accept a delivery, such notice shall be
deemed to have been given and received as of the date of such failure as
indicated on the return receipt or by notice of the post office department or
such nationally recognized courier.
ARTICLE 7
REPAIRS AND SERVICES
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
Landlord agrees to keep in good order, condition and repair the roof,
the exterior and load bearing walls (including exterior glass), the
foundation, the structural floor slabs and other structural elements of
the Building, the common facilities of the Building (including all
plumbing, mechanical, electrical and other Building systems and
equipment installed by Landlord and servicing the Premises, but
specifically excluding any supplemental or accessory heating,
ventilation or air conditioning equipment or systems and
telecommunications/computer systems and equipment exclusively servicing
the Premises installed at Tenant's request or as a result of Tenant's
requirements in excess of Building Standard design criteria), all
insofar as they affect the Premises, except that Landlord shall in no
event be responsible to Tenant for the repair of glass in the Premises,
the doors (or related glass and finish work) leading to the Premises,
or any condition in the Premises or the Building caused by any act or
neglect of Tenant, its agents, employees, assignees, subtenants,
invitees or contractors. Landlord shall not be responsible to make any
improvements or repairs to the Building other than as expressly in this
Section 7.1 provided, unless expressly provided otherwise in this
Lease. All of said repairs and any restorations or replacements
required in connection therewith shall be of a quality and class at
least equal to the original work and installations and shall be done in
good and workmanlike manner.
(b) Landlord shall never be liable for any failure to make
repairs which Landlord has undertaken to make under the provisions of
this Section 7.1 or elsewhere in this Lease unless Tenant has given
notice to Landlord of the need to make such repairs, and Landlord has
failed to commence to make such repairs within a reasonable time after
receipt of such notice, or fails to proceed with reasonable diligence
to complete such repairs.
7.2 TENANT REPAIRS. (a) Except as expressly provided in Section 7.1, Tenant
covenants and agrees that, from and after the date that the possession
of the Premises is delivered to Tenant and until the end of the Lease
Term, Tenant, at its expense, will keep neat and clean and maintain in
good order, condition and repair the Premises and every part thereof,
and will make all required repairs thereto and/or replacements of
portions thereof, excepting only those repairs for which Landlord is
responsible under the terms of this Lease, reasonable wear and tear of
the Premises, and damage by fire or other casualty or as a consequence
of the exercise of the power of eminent domain; and shall surrender the
Premises, at the end of the Lease Term, in such condition. Without
limitation, Tenant
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shall continually during the Lease Term maintain the Premises in
accordance with all laws, codes and ordinances from time to time in
effect and all directions, rules and regulations of the proper officers
of governmental agencies having jurisdiction, and the standards
recommended by the Boston Board of Fire Underwriters, and shall, at
Tenant's expense, obtain all permits, licenses and the like required by
applicable law. To the extent that the Premises constitute a "Place of
Public Accommodation" within the meaning of the Americans With
Disabilities Act of 1990, Tenant shall be responsible, subject to the
requirements of Section 5.2, for making the Premises comply with such
Act. Tenant shall not permit or commit any waste, and, notwithstanding
the foregoing or the provisions of Article 12, Tenant shall be
responsible for the cost of repairs and replacements to the Premises,
the Building and the facilities of the Building, whether ordinary or
extraordinary or structural or nonstructural, when necessitated by
Tenant, or its subtenant or assignee, moving property in or out of the
Building or installation or removal of furniture, fixtures or other
property or by the performance by Tenant, or its subtenant or assignee,
of any Alterations or other work in the Premises, or when necessitated
by the failure to exercise reasonable care by, or misuse, neglect or
improper conduct of, Tenant, its assignee or subtenant, or its or their
agents, employees, contractors or invitees (including any damage by
fire or other casualty arising therefrom, except to the extent that the
Landlord recovers insurance loss proceeds from its casualty insurer
without loss of continuing policy protection and from which insurer a
waiver of subrogation has been obtained in accordance with Section 10.6
hereof) and, if the premium or rates payable with respect to any policy
or policies of insurance purchased by Landlord or Agent with respect to
the Building increases as a result of payment by the insurer of any
claim arising from any act or neglect of Tenant, its assignee,
subtenant, contractors or invitees, Tenant shall pay such increase,
from time to time, within fifteen (15) days after demand therefor by
Landlord, as Additional Rent. All of said repairs and any restorations
or replacements required in connection therewith shall be of a quality
and class at least equal to the original work and installations and
shall be done in a good and workmanlike manner.
(b) If repairs or replacements are required to be made by
Tenant pursuant to the terms hereof, Landlord may demand that Tenant
make the same forthwith, and if Tenant refuses or neglects to commence
such repairs or replacements within ten (10) days after such demand and
complete the same with reasonable dispatch thereafter (except in the
case of an emergency, in which event Landlord may make such repairs
immediately), Landlord may (but shall not be required to do so) make or
cause such repairs or replacements to be made (the provisions of
Section 14.18 being applicable to the costs thereof), and shall not be
responsible to Tenant for any loss or damage whatsoever that may accrue
to Tenant's stock or business by reason thereof.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon
any floor in the Premises exceeding the floor load per square foot of
area which such floor was designed to carry and which is allowed by
law. Landlord reserves the right to prescribe the weight and position
of all business machines and mechanical equipment, including safes,
which shall be placed so as to distribute the weight. Business machines
and mechanical equipment shall be placed and maintained by Tenant at
Tenant's expense in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and
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annoyance. Tenant shall not move any safe, heavy machinery, heavy
equipment, freight, bulky matter or fixtures into or out of the
Building or place a load upon any stairwell, elevator or common area
exceeding the floor load per square foot of area which such area was
designed to carry without Landlord's prior consent, which consent may
include a requirement to provide insurance, naming Landlord as an
insured, in such amounts as Landlord may deem reasonable.
(b) If any such safe, machinery, equipment, freight, bulky
matter or fixtures requires special handling, Tenant agrees to employ
only persons holding a Master Rigger's License to do such work, and
that all work in connection therewith shall comply with applicable laws
and regulations. Any such moving shall be at the sole risk and hazard
of Tenant, and Tenant will exonerate, indemnify and save Landlord
harmless against and from any liability, loss, injury, claim or suit
resulting directly or indirectly from such moving.
7.4 BUILDING SERVICES. (a) Landlord shall, on Business Days from 8:00 a.m.
to 6:00 p.m. and on Saturdays from 9 a.m. to 1:00 p.m. ("Business
Hours"), furnish heating and cooling as normal seasonal changes may
require to provide reasonably comfortable space temperature and
ventilation for occupants of the Premises under normal business
operation at an occupancy of not more than one person per 150 square
feet of Premises Rentable Area and an electrical load not exceeding 8.0
▇▇▇▇▇ per square foot of Premises Rentable Area. Such systems shall be
designed to meet the specifications set forth in EXHIBIT L hereto. If
Tenant shall require air conditioning, heating or ventilation outside
the hours and days above specified ("Overtime Service"), Landlord shall
furnish such Overtime Service and Tenant shall pay therefor such
charges as may from time to time be in effect. In the event Tenant
introduces into the Premises personnel or equipment which overloads the
capacity of the Building system or in any other way interferes with the
system's ability to perform adequately its proper functions,
supplementary systems may, if and as needed, at Landlord's option, be
provided by Landlord, at Tenant's expense.
(b) Landlord shall also provide:
(i) Passenger elevator service in common with Landlord
and other tenants in the Building.
(ii) Warm water for lavatory purposes and cold water (at
temperatures supplied by the municipality in which
the Building is located) for drinking, lavatory and
cleaning purposes. If Tenant uses water for any
purpose other than for ordinary lavatory and drinking
purposes, Landlord may assess a reasonable charge for
the additional water so used, or install a water
meter and thereby measure Tenant's water consumption
for all purposes. In the latter event, Tenant shall
pay the cost of the meter and the cost of
installation thereof and shall keep such meter and
installation equipment in good working order and
repair. Tenant agrees to pay for water consumed, as
shown on such meter, together with the sewer charge
based on such meter charges, as and when bills are
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rendered, and in default in making such payment
Landlord may pay such charges and collect the same
from Tenant as Additional Rent.
(iii) Cleaning and janitorial services to the Premises on
Business Days, provided the same are kept in order by
Tenant, substantially in accordance with the cleaning
standards for the Building described in EXHIBIT K
hereto.
(iv) Free access to the Premises on Business Days during
Business Hours, and at all other times via a card key
access system, subject to security precautions from
time to time in effect, and subject always to
restrictions based on emergency conditions. Landlord
shall cooperate with Tenant, at Tenant's sole cost,
to coordinate acceptable systems for security at
Tenant's Premises which are compatible with
Landlord's existing security systems.
(v) Snow and ice removal to the walks, driveways and
parking areas which Tenant is entitled to use under
this Lease, and landscaping of surrounding grounds.
(vi) Within sixty (60) days of the Commencement Date, a
food service facility at the Building, to be operated
by a third party vendor, which will offer at the
breakfast and lunch hours on Business Days, a
reasonable range of hot and cold food selections for
purchase by Tenant, its employees and invitees.
(vii) Within sixty (60) days of the Commencement Date, and
subject to security precautions from time to time in
effect, to restrictions based on emergency conditions
and to reasonable rules and regulations in effect
from time to time, free access to (a) the health and
fitness facility and showers and locker rooms
attendant thereto via a card key access system, and
(b) the shared-use conference center on Business Days
and during Business Hours, but subject to reservation
availability. Landlord reserves the right to charge a
reasonable fee for the Tenant's use of the shared-use
conference center.
(viii) Routine operation and maintenance of the walks,
driveways and parking areas which Tenant is entitled
to use under the Lease and reasonably appropriate
lighting of the parking areas.
(c) Landlord or Agent may from time to time, but shall not be
obligated to, provide one or more uniformed attendants in or about the
lobby of the Building. Unless Landlord expressly agrees otherwise in
writing, such attendant(s) shall serve functions such as assisting
visitors and invitees of tenants and others in the Building, monitoring
fire control and alarm equipment, and
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summoning emergency services to the Building as and when needed. Tenant
expressly acknowledges and agrees that: (i) such attendants shall not
serve as police officers, and will be unarmed, and will not be trained
in situations involving potentially physical confrontation; and (ii) if
provided, such attendants will be provided solely as an amenity to
tenants of the Building for the sole purposes set forth above, and not
for the purpose of securing any individual tenant premises or
guaranteeing the physical safety of Tenant's Premises or of Tenant's
employees, agents, contractors or invitees. If and to the extent that
Tenant desires to provide security for the Premises or for such persons
or their property, Tenant shall be responsible for so doing, after
having first consulted with Landlord and after obtaining Landlord's
consent, which shall not be unreasonably withheld. Landlord expressly
disclaims any and all responsibility and/or liability for the physical
safety of Tenant's property, and for that of Tenant's employees,
agents, contractors and invitees, and, without in any way limiting the
operation of Article 10 hereof, Tenant, for itself and its agents,
contractors, invitees and employees, hereby expressly waives any claim,
action, cause of action or other right which may accrue or arise as a
result of any damage or injury to the person or property of Tenant or
any such agent, invitee, contractor or employee, except to the extent
that the same arises from the negligent act or omission of Landlord or
its agents, employees or contractors. Tenant agrees that, as between
Landlord and Tenant, it is Tenant's responsibility to advise its
employees, agents, contractors and invitees as to necessary and
appropriate safety precautions.
7.5 ELECTRICITY. (a) Landlord shall supply electricity to the Premises to
meet a demand requirement not to exceed 8.0 ▇▇▇▇▇ per square foot of
Premises Rentable Area for standard single-phase 120 volt alternating
current and Tenant agrees in its use of the Premises (i) not to exceed
such requirements and (ii) that its total connected lighting load will
not exceed the maximum from time to time permitted under applicable
governmental regulations. If, without in any way derogating from the
foregoing limitation, Tenant shall require electricity in excess of the
requirements set forth above, Tenant shall notify Landlord and Landlord
may (without being obligated to do so) supply such additional service
or equipment at Tenant's sole cost and expense. Landlord shall purchase
and install, at Tenant's expense, all lamps, tubes, bulbs, starters and
ballasts. In order to assure that the foregoing requirements are not
exceeded and to avert possible adverse affect on the Building's
electric system, Tenant shall not, without Landlord's prior consent,
connect any fixtures, appliances or equipment to the Building's
electric distribution system other than personal computers, facsimile
transceivers, typewriters, pencil sharpeners, adding machines,
photocopiers, word and data processors, clocks, radios, hand-held or
desk top calculators, dictaphones, desktop computers and other similar
small electrical equipment normally found in business offices and not
drawing more than 15 amps at 120/208 volts.
(b) Tenant acknowledges that Basic Rent does not include the
cost of providing convenience electricity to the Premises. As elsewhere
provided, Tenant shall pay the Estimated Electricity Payment to
Landlord with Basic Rent payments, and to the extent that the cost of
providing convenience electricity to the Premises for any Operating
Year exceeds the Estimated Electricity Payment,
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Tenant shall pay such excess as herein provided. Tenant's electricity
usage in the Premises shall be measured by one or more so-called
"check-meters," which shall be installed in the Premises by Landlord.
Landlord shall cause such meter(s) to be read periodically, but not
less often than once during each Operating Year, for the purpose of
determining Tenant's actual electricity usage during such Operating
Year. Tenant shall reimburse Landlord, as Additional Rent, for the
actual cost of the electric current consumed in the Premises, as
measured by the "check -meters" serving the Premises, for the Operating
Year in question. In the event that the Building shall be metered for
more than one rate applicable to the Premises, then the Premises shall
be similarly check-metered at each rate applicable to the Premises. To
the extent that the Estimated Electricity Payments theretofore made by
Tenant for the Operating Year in question are less than the amount
computed by Landlord as aforesaid, then Tenant shall pay the amount of
such shortfall within thirty (30) days after being so advised by
Landlord, but if Tenant's Estimated Electricity Payments exceed the
amount due, then Landlord shall credit the excess against subsequent
obligations of Tenant on account of Estimated Electricity Payments (or
refund such excess if the Lease Term has expired and Tenant has no
further obligation to Landlord).
(c) From time to time during the Lease Term, Landlord shall
have the right to have an electrical consultant selected by Landlord
make a survey of Tenant's electric usage, the result of which survey
shall be conclusive and binding upon Landlord and Tenant. In the event
that such survey shows that Tenant has exceeded the requirements set
forth in Section 7.4(a) hereof, in addition to any other rights
Landlord may have hereunder, Tenant shall, upon demand, reimburse
Landlord for the reasonable cost of such survey and the cost, as
determined by such consultant, of electricity usage in excess of such
requirements as an additional charge.
(d) Landlord shall have the right to discontinue furnishing
electricity to the Premises at any time upon not less than thirty (30)
days' notice to Tenant provided Landlord shall, at the expense of the
party requesting direct separate metering, separately meter the
Premises directly to the applicable public utility company. If Landlord
exercises such right, from and after the effective date of such
discontinuance, Landlord shall not be obligated to furnish electricity
to the Premises, and
(i) Tenant shall no longer be required to pay the
Estimated Electricity Payment portion of Basic Rent;
and
(ii) Landlord shall permit Landlord's existing wires,
risers, conduits and other electrical equipment of
Landlord to be used to supply electricity to Tenant
provided that the limits set forth in Section 7.4(a)
hereof shall not be exceeded, and Tenant shall be
responsible for payment of all electricity charges
directly to such utility.
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7.6 SERVICES PRIOR TO COMMENCEMENT DATE. Notwithstanding anything to the
contrary contained in this Article 7, Landlord's obligation to provide
services directly (as opposed to services to common areas of the
Building) to any portion of the Premises prior to the Commencement Date
in respect of such portion of the Premises shall be solely as set forth
in EXHIBIT C hereto.
7.7 INTERRUPTION OF SERVICES. If Landlord breaches its obligations to
supply any HVAC, elevator, plumbing or electrical service or reasonable
means of access to the Premises (collectively, the "Essential
Services") which pursuant to the terms of this Lease Landlord is
obligated to supply in or about the Premises (collectively
"Untenantable Condition") and such Untenantable Condition shall not be
caused by any circumstance referred to in Article 12, Force Majeure or
by any negligence or misconduct of Tenant or its officers, contractors,
licensees, agents, employees, guests or visitors, and as a result of
the Untenantable Condition, (i) Tenant is precluded from using the
whole or any material part of the Premises (the "Untenantable
Premises") due to the fact that the Premises or a part thereof are
untenantable for a period in excess of ten (10) consecutive Business
Days in any one instance (commencing after written notice from Tenant
to Landlord of the Untenantable Condition as provided for herein), (ii)
Tenant shall vacate the Untenantable Premises and cease doing business
therein; and (iii) Tenant shall give notice to Landlord of the facts
set forth in (i) and (ii) above making specific reference to this rent
abatement provision, then in such event, the portion of the Basic Rent
and Additional Rent allocable to the Untenantable Premises shall be
fully abated for the period commencing on the eleventh (11th)
consecutive Business Day after all the conditions set forth in (i),
(ii) and (iii) above shall first be satisfied and ending on the date
the Untenantable Premises shall be rendered usable and Landlord shall
have given notice thereof (or the date Tenant shall re-occupy the
Untenantable Premises for conduct of its business, if earlier). This
Section 7.7 shall act as a waiver of any right to which Tenant is
otherwise entitled by law to claim a constructive eviction by reason of
Landlord's failure to provide supply such Essential Services. Landlord
shall be responsible to repair any Essential Services which it is
required to supply to the Tenant to the extent provided in Section 7.1
hereof.
ARTICLE 8
REAL ESTATE TAXES
8.1 DEFINITIONS. For purposes of this Section 8.1, the following terms
shall have the respective meanings set forth below:
(a) "Taxes" shall mean the aggregate amount of all real estate
and personal property taxes and any general or special assessments and
any betterment assessments (exclusive of penalties thereon and penalty
interest but inclusive of interest on assessments payable in
installments) assessed or imposed upon with respect to the Tax Parcel
for any Tax Year. There shall be excluded from Taxes all income,
estate, succession, inheritance, transfer and franchise taxes imposed
upon Landlord or in connection with the Tax Parcel; provided, however,
that if at any time during the Lease Term the method of taxation of
real estate shall be changed and as a result of any other tax or
assessment, however denominated and including, without limitation, any
franchise, income, profit, use,
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occupancy, gross receipts or rental tax shall be imposed upon Landlord
or the owner of the Tax Parcel, or the rents or income therefrom, in
substitution for or in addition to, in whole or in part, any of the
taxes or assessments listed in the preceding sentence, such other tax
or assessment shall be included in and deemed a part of the Taxes but
only to the extent that the same shall be payable if the Tax Parcel
were the only real estate owned by Landlord. The amount of any special
assessments for public improvements or benefits to be included in Taxes
for any Tax Year, in the case where the same may, at the option of the
taxpayer, be paid in installments, shall be limited to the amount of
the installment due in respect of such Tax Year, together with any
interest payable in connection therewith (other than interest payable
by reason of the delinquent payment of such installment).
(b) "Tax Year" shall mean each period from July 1 through
June 30 (or such other fiscal period as may hereafter be adopted by
applicable governmental authority as the fiscal year for any tax, levy
or charge included in Taxes), any part or all of which occurs during
the Lease Term.
(c) "Tax Expenses" shall mean all expenses, including, without
limitation, reasonable attorneys' fees and disbursements and experts'
and other witnesses' fees, incurred by Landlord in seeking in good
faith to reduce the amount of any assessed valuation of the Tax Parcel,
in contesting the amount or validity of any Taxes, or in seeking a
refund of Taxes.
8.2 TENANT'S SHARE OF TAXES. From and after the Commencement Date, if the
Taxes for any full Tax Year falling within the Lease Term shall exceed
the Base Taxes, or if, in the case of a Tax Year only a fraction of
which is included in the Lease Term, an amount of the Taxes for such
Tax Year multiplied by such fraction exceeds the Base Taxes multiplied
by such fraction (the amount of such excess in either case being
hereinafter referred to as the "Tax Excess"), then Tenant shall pay to
Landlord, as Additional Rent, Tenant's Proportionate Share of the Tax
Excess and Tax Expenses, provided that Tenant shall not be required to
pay Tenant's share of Taxes due for the period from the Commencement
Date, to and including June 30, 2000, until July 1, 2000, the date on
which Base Taxes shall first be determinable. Tenant's Proportionate
Share of the Tax Excess and Tax Expenses for each Tax Year shall be
payable in monthly installments as follows:
(a) Subject to the proviso in the first sentence of this
Section 8.2, estimated payments by Tenant on account of Taxes and Tax
Expenses shall be made on the first day of each and every calendar
month during the Lease Term, in the fashion herein provided for the
payment of Basic Rent. The monthly amount so to be paid to Landlord
shall be sufficient to provide Landlord by the time Taxes and Tax
Expenses are due with a sum equal to Tenant's required payments, as
estimated by Landlord from time to time, on account of Taxes and Tax
Expenses for the then current Tax Year. Promptly after receipt by
Landlord of bills for such Taxes and Tax Expenses, Landlord shall
advise Tenant of the amount thereof and the computation of Tenant's
payment on account thereof. If estimated payments theretofore made by
Tenant for the Tax Year covered by such
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bills exceed the required payments on account thereof for such Tax
Year, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant on account of Taxes and Tax Expenses
(or refund such overpayment within thirty (30) days if the Lease Term
has ended and Tenant has no further obligation to Landlord); but if the
required payments on account thereof for such Tax Year are greater than
estimated payments theretofore made on account thereof for such Tax
Year, Tenant shall make payment to Landlord within thirty (30) days
after being so advised by Landlord. Landlord shall have the same rights
and remedies for the nonpayment by Tenant of any payments due on
account of Taxes and Tax Expenses as Landlord has hereunder for the
failure of Tenant to pay Basic Rent.
(b) If the Taxes for any Tax Year shall equal or be less than
the Base Taxes, Tenant shall not be obligated to make any payments to
Landlord pursuant to this Section 8.2 in respect of a Tax Excess for
such Tax Year, but in no event shall Tenant be entitled to any refund
or reduction in the Basic Rent by reason of such fact.
(c) It is understood that the provisions of this Section 8.2
are based upon the method of payment of real property taxes in effect
at the date of this Lease, to wit, in quarter-annual installments in
advance on the first day of February, May, August and November of each
Tax Year. If such method of payment is hereafter changed, Landlord
shall have the right to change the method by which Tenant pays Tenant's
Proportionate Share of a Tax Excess and Tax Expenses to a method of
periodic payments which provides Landlord with the full payment of
Tenant's Proportionate Share of such Tax Excess and Tax Expenses in
respect of any installment of Taxes by the date on which such
installment becomes due.
8.3 REFUND OF TAXES. Only Landlord shall have the right to institute tax
abatement, reduction or other proceedings to reduce the Taxes assessed
against the Tax Parcel. Should Landlord be successful in any such
proceeding and obtain a refund for any Tax Year or Years in respect of
which Tenant shall have made a payment to Landlord, pursuant to Section
8.2 hereof, Landlord shall credit Tenant's Proportionate Share of such
refund (or, in the case of a refund of Taxes for a Tax Year, only a
fraction of which is included in the Lease Term, such fraction thereof)
against the monthly installment or installments of Basic Rent next
falling due under this Lease, or if the Lease Term has expired and
Tenant has no further obligations to Landlord, such amount shall be
refunded by Landlord to Tenant within thirty (30) days. In calculating
the amount of any such credit or payment, Landlord shall have the right
to deduct from such refund all Tax Expenses incurred by Landlord in
obtaining the same. The provisions of Article 8 shall survive the
expiration of the Lease Term.
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ARTICLE 9
OPERATING EXPENSES
9.1 DEFINITIONS. For the purposes of this Article 9, the following terms
shall have the respective meanings set forth below:
(a) "Operating Year" shall mean the calendar year within which
the Commencement Date occurs and each subsequent calendar year, any
part or all of which falls within the Lease Term.
(b) "Base Operating Expenses" shall mean the actual Operating
Expenses incurred for the calendar year ending December 31, 1999
(excluding the cost of providing convenience electricity to those
portions of the Building leased or intended to be leased to tenants),
subject to the provisions of the second sentence of Section 9.1(d), and
provided that, if during any portion of the calendar year ending
December 31, 1999, less than all of the Building and the building on
the site to be known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the construction and
completion of which are assumed for purposes of extrapolating Base
Operating Expenses herein) are occupied by tenants or, if Landlord was
not supplying all tenants with the services being supplied to the
Tenant hereunder, then the Operating Expenses actually incurred shall
be reasonably extrapolated by Landlord on an item-by-item basis to the
reasonable Operating Expenses that would have been incurred if the
Building and the building on the site to be known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
(the construction and completion of which are assumed for purposes of
extrapolating Base Operating Expenses herein) were fully occupied and
such services were being supplied to all tenants. Such extrapolated
Operating Expenses shall, for all purposes hereof, be deemed to be the
Base Operating Expenses hereunder.
(c) "Tenant's Proportionate Share" shall be a fraction, (i)
the numerator of which is the Premises Rentable Area, and (ii) the
denominator of which is the Building Rentable Area multiplied by 0.95.
(d) "Operating Expenses" shall mean the aggregate of (i) 100%
of Building Operating Expenses and (ii) 45% of Common Site Operating
Expenses, and subject to such percentage allocation, includes all costs
and expenses paid or incurred by or on behalf of Landlord with respect
to the operation, administration, cleaning, repair, maintenance and
management of the Building and the Site all as set forth in EXHIBIT E
annexed hereto, provided that, if during any portion of the Operating
Year for which Operating Expenses are being computed, Landlord is not
furnishing any particular work or service (the cost of which if
performed by Landlord would constitute an Operating Expense) to a
tenant who has undertaken to perform such work or service in lieu of
the performance thereof by Landlord, Operating Expenses for any
Operating Year during all or any part of which such work or service is
not so furnished by Landlord shall be increased by an amount equal to
the additional Operating Expenses which reasonably would have been
incurred during such period by Landlord if it had at its own expense
furnished such work or service to such tenant. In determining the
amount of Operating
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Expenses for any Operating Year, if less than ninety-five percent (95%)
of the Building Rentable Area shall have been occupied by tenant(s) at
any time during such Operating Year, Operating Expenses shall be
determined for such Operating Year to be an amount equal to the
Operating Expenses which would normally be expected to have been
incurred had such occupancy been ninety-five percent (95%) throughout
such Operating Year.
(e) "Building Operating Expenses" for any Operating Year shall
mean all Operating Expenses incurred in respect of the Building,
exclusive of Common Site Operating Expenses, for such Operating Year.
(f) "Common Site Operating Expenses" for any Operating Year
shall mean all Operating Expenses, exclusive of Building Operating
Expenses, incurred in respect of common facilities located on the Site
which service all buildings (including the Building) from time to time
located on the Site including, without limiting the generality of the
foregoing, property management fees and expenses, common roadways,
common driveways, non-exclusive parking areas, utility lines and
equipment, drainage areas and related fixtures and equipment, and any
other similar improvements constructed on the Site, whether above or
below ground, which Landlord is required by any agreement entered into
in connection with the construction of the Building to operate or
maintain or to contribute to the cost of the operation or maintenance
thereof to the extent such expenses are payable with respect to the
buildings on the Site owned by Landlord or its affiliates.
9.2 EXCESS OPERATING EXPENSES.
(a) In the event that, for any Operating Year, Operating
Expenses shall exceed Base Operating Expenses, then Tenant shall pay to
Landlord, as Additional Rent, an amount equal to Tenant's Proportionate
Share of such excess Operating Expenses, such amount to be apportioned
for any portion of an Operating Year in which the Commencement Date
falls or the Lease Term ends.
(b) Estimated payments paid by Tenant on account of excess
Operating Expenses shall be made on the first day of each and every
calendar month during the Lease Term commencing January 1, 2000, in the
fashion herein provided for the payment of Basic Rent.
The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the end of each Operating Year a sum equal to Tenant's
required payments, as estimated by Landlord from time to time during each
Operating Year, on account of Operating Expenses for such Operating Year. After
the end of each Operating Year, Landlord shall submit to Tenant a reasonably
detailed accounting of Operating Expenses for such Operating Year, and Landlord
shall certify to the accuracy thereof having exercised reasonable efforts and
care to ensure invoices for Operating Expenses reflect actual services provided.
If estimated payments theretofore made for such Operating Year by Tenant exceed
Tenant's required payment on account thereof for such Operating Year, according
to such statement, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant with respect to Operating
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Expenses (or refund such overpayment within thirty (30) days if the Lease Term
has ended and Tenant has no further obligation to Landlord); but, if the
required payments on account thereof for such Operating Year are greater than
the estimated payments (if any) theretofore made on account thereof for such
Operating Year, Tenant shall make payment to Landlord within thirty (30) days
after being so advised by Landlord. Landlord shall have the same rights and
remedies for the nonpayment by Tenant of any payments due on account of
Operating Expenses as Landlord has hereunder for the failure of Tenant to pay
Basic Rent.
9.3 TENANT'S AUDIT RIGHTS. (a) If Tenant shall so request, within ninety
(90) days after receipt of any accounting required to be presented by
Landlord hereunder, Landlord shall permit Tenant, at Tenant's expense
and during normal Business Hours, to review at Landlord's office
Landlord's invoices relating to Operating Expenses for the Operating
Year in respect of which such accounting was prepared for the purpose
of verifying any accounting that Landlord is required to give
hereunder, provided that Tenant shall be limited to one such audit
right per calendar year. Any such request shall be accompanied by a
statement setting forth, in reasonable detail, the particular respects
which Tenant disputes or questions such accounting. In making any such
examination, Tenant agrees, and shall cause its auditors, accountants
and any other employees, agents or contractors having access to such
information to agree, to keep strictly confidential (i) any and all
information contained in such books and records, and (ii) the
circumstances and details pertaining to such examination, including
without limitation the nature of any dispute in respect of Operating
Expenses and the nature or details of any settlement thereof; and
Tenant will confirm and cause its auditors, accountants, employees,
agents and contractors to confirm such agreement in writing, if so
requested by Landlord, prior to such examination. Tenant's review shall
be conducted only by an auditor or accountant of a nationally
recognized auditing or accounting firm and not by any party compensated
by Tenant on a contingency fee arrangement. If Tenant shall not request
any such review within the ninety (90)-day period hereinabove referred
to, then Landlord's accounting shall be binding and conclusive.
(b) If such dispute has not been resolved by agreement within
thirty (30) days after Tenant's notice to Landlord of such dispute as
provided in Section 9(a), then Tenant may, within thirty (30)
additional days after the expiration of the first such thirty (30)-day
period, submit the matter to arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association,
except that there shall be only one arbitrator, who shall have had at
least ten (10) years' experience as a certified property manager in
buildings similar to the Building and in the same general location and
market. If Tenant shall fail to submit the matter to arbitration within
such additional thirty (30)-day period, then Landlord's accounting
shall be conclusively deemed to be correct. Any decision by an
arbitrator shall be final and binding on the parties. If the dispute
shall be resolved in Tenant's favor, Landlord shall forthwith credit
the amount overpaid by Tenant against amounts subsequently coming due
on account of Operating Expenses. Each party shall bear one-half (1/2)
of the cost of such arbitrator. If the arbitrator determines that
Landlord has overcharged Tenant by more than five percent (5%) with
respect to the Tenant's Proportionate Share of excess Operating
Expenses, Landlord shall pay the cost of such audit and shall refund
the amount of the
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excess Operating Expenses which were overcharged to Tenant within
thirty (30) days.
(c) During the pending of any examination by Tenant pursuant
to Section 9(a) and pending resolution by agreement or arbitration
pursuant to Section 9(b), Tenant shall make any payments claimed by
Landlord to be due on account of Operating Expenses, such payment to be
without prejudice to Tenant's position.
ARTICLE 10
INDEMNITY AND INSURANCE
10.1 TENANT'S INDEMNITY. (a) Except to the extent that such claims arise
from the negligent acts or omissions of Landlord or its agents,
contractors or employees, Tenant agrees to indemnify and save harmless
Landlord, its members, agents, contractors and employees from and
against all claims, loss, cost, damage or expense asserted by or on
behalf of any person, firm, corporation or public authority of whatever
nature arising: (i) from any accident, injury or damage whatsoever to
any person, or to the property of any person, occurring in or about the
Premises; (ii) from any accident, injury or damage occurring elsewhere
(other than on the Premises) in or about the Building or the lots on
which the Building is located to the extent that such accident, damage
or injury results from an act or omission on the part of Tenant or
Tenant's agents, employees, invitees or contractors; or (iii) in
connection with the conduct or management of the Premises or of any
business therein, or any thing or work whatsoever done, or any
condition created (other than by Landlord) in or about the Premises;
and, in any case, occurring after the date of this Lease until the end
of the Lease Term and thereafter so long as Tenant is in occupancy of
any part of the Premises. This indemnity and hold harmless agreement
shall include indemnity against all losses, costs, damages, expenses
and liabilities incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof by counsel of the
insurer (if such claim is covered by insurance) or otherwise by counsel
reasonably satisfactory to Landlord, including, without limitation,
reasonable attorneys' fees and costs at both the trial and appellate
levels.
(b) Landlord agrees to indemnify and save harmless Tenant from
and against all claims, loss, cost, damage or expense of whatever
nature arising from any accident, injury or damage, to the extent that
such accident, damage or injury results from an act or omission on the
part of Landlord or Landlord's agents, employees, invitees or
contractors, occurring after the date of this Lease until the end of
the Lease Term. This indemnity and hold harmless agreement shall
include indemnity against all losses, costs, damages, expenses and
liabilities incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof by counsel of the
insurers (if such claim is covered by insurance) or by counsel
reasonably satisfactory to Tenant, including, without limitation,
reasonable attorneys' fees and costs at both the trial and appellate
levels.
10.2 GENERAL LIABILITY INSURANCE. Tenant agrees to maintain in full force
from the date upon which Tenant first enters the Premises for any
reason, throughout the Lease Term and thereafter, so long as Tenant is
in occupancy of any part of the Premises, a
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policy of commercial general liability and property damage insurance
(including broad form contractual liability, independent contractor's
hazard and completed operations coverage) under which Tenant is named
as an insured and Landlord, Agent (and such other persons as are in
privity of estate with Landlord as may be set out in a notice from time
to time) are named as additional insureds, and under which the insurer
agrees to indemnify and hold Landlord, Agent and those in privity of
estate with Landlord, harmless from and against all cost, expense
and/or liability arising out of or based upon any and all claims,
accidents, injuries and damages set forth in Section 10.1(a). Each such
policy shall be issued by one or more insurers in a financial size
category of not less than XIV and with general policyholders rating of
not less than A as rated in the most current available "Bests"
insurance reports, or the then equivalent thereof, and licensed to do
business in the Commonwealth of Massachusetts and authorized to issue
such policies. Tenant may satisfy such insurance requirements by
including the Premises in a so-called "blanket" and/or "umbrella"
insurance policy, provided that the amount of coverage allocated to the
Premises shall fulfill the foregoing requirements. Each policy of
insurance procured by Tenant shall contain endorsements providing that
(i) such policy shall be non-cancelable and non-amendable with respect
to Landlord, Agent and Landlord's said designees without thirty (30)
days' prior notice to Landlord and such designees, (ii) written on an
"occurrence" basis, and (iii) in at least the amounts of the Initial
General Liability Insurance specified in Section 1.2 or such greater
amounts as Landlord shall from time to time reasonably request, and a
duplicate original thereof shall be delivered to Landlord.
10.3 TENANT'S RISK. Tenant agrees to use and occupy the Premises and to use
such other portions of the Building and the lots on which the Building
is located as Tenant is herein given the right to use at Tenant's own
risk. Except to the extent that such claims arise from the negligent
acts or omissions of Landlord or its agents, contractors or employees,
neither Landlord nor Landlord's insurers shall have any responsibility
or liability for any loss of or damage to Tenant's Removable Property,
Tenant's Alterations and any paneling or other wall finishings or
coverings other than normal painting. Tenant shall carry "all-risk"
property insurance on a "replacement cost" basis, insuring Tenant's
Removable Property and any Alterations installed by Tenant pursuant to
Section 5.2, to the extent that the same have not become the property
of Landlord, and other so-called improvements and betterments. The
provisions of this Section 10.3 shall be applicable from and after the
execution of this Lease and until the end of the Lease Term of this
Lease, and during such further period as Tenant may use or be in
occupancy of any part of the Premises or of the Building.
10.4 CERTIFICATES OF INSURANCE. On or prior to the time Tenant and/or its
contractors enter the Premises in accordance with this Lease and
thereafter not less than thirty (30) days prior to the expiration date
of each expiring policy, original copies of the policies provided for
in Section 10.2 issued by the respective insurers, or insurance company
certificates of such policies setting forth in full the provisions
thereof and issued by such insurers, shall be delivered by Tenant to
Landlord.
10.5 INJURY CAUSED BY THIRD PARTIES. Except to the extent that such claims
arise from the negligent acts or omissions of Landlord or its agents or
employees, Tenant
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agrees that Landlord shall not be responsible or liable to Tenant, or
to those claiming by, through or under Tenant, for any loss or damage
that may be occasioned by or through the acts or omissions of persons
occupying adjoining premises or any part of the premises adjacent to or
connecting with the Premises or any part of the Building or otherwise.
10.6 WAIVER OF SUBROGATION.
(a) Landlord and Tenant shall each endeavor to secure an
appropriate clause in or an endorsement to each property insurance
policy obtained by it and covering the Property, the Building, the
Premises, Tenant's Alterations, or Tenant's Removable Property, as
applicable, pursuant to which the respective insurance companies waive
subrogation or permit the insured, prior to any loss, to agree with a
third party to waive any claim it might have against said third party.
The waiver of subrogation or permission for waiver of any claim
hereinbefore referred to shall extend to the agents of each party and,
in the case of Tenant, shall also extend to all other persons and
entities occupying or using the Premises in accordance with the terms
of this Lease. If and to the extent that such waiver or permission can
be obtained only upon payment of an additional charge, then the party
benefiting from the waiver or permission shall pay such charge upon
demand, and if such party shall fail or refuse to pay any such charge
within thirty (30) days of demand therefor, such party shall be deemed
to have agreed that the party obtaining the insurance coverage in
question shall be free of any further obligations under the provisions
hereof relating to such waiver or permission. In the event that either
Landlord or Tenant shall be unable at any time to obtain one of the
provisions referred to above in any of its insurance policies, Landlord
or Tenant, as the case may be, shall promptly notify the other.
(b) Subject to the foregoing provisions of this Section 10.6
and insofar as may be permitted by the terms of the insurance policies
carried by it, each party hereby releases the other and its members,
partners, agents and employees (and in the case of Tenant, all other
persons and entities occupying or using the Premises in accordance with
the terms of this Lease with respect to any claim, including a claim
for negligence) which it might otherwise have against the other party
for loss, damages or destruction with respect to its property by fire
or other casualty (including rentable value or business interruption,
as the case may be) occurring during the Lease Term which could be
covered under an all-risk full replacement cost insurance policy,
whether or not actually obtained.
ARTICLE 11
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHT OF ENTRY. Landlord and Agent shall have the right,
without being deemed thereby to evict Tenant from the Premises or any
part thereof or otherwise to violate any of the terms of this Lease or
any of Tenant's rights hereunder, (a) to enter and pass through the
Premises or any part or parts thereof (i) by appointment, such
appointment not to be unreasonably withheld or delayed, to examine the
Premises and to show them to prospective or existing mortgagees,
purchasers or tenants of any part of the
-▇▇-
▇▇
▇▇▇▇▇▇▇▇, (▇▇) for the purpose of performing such maintenance and
making such repairs or changes in or to the Premises or in or to the
Building or its facilities as may be provided for or permitted by this
Lease or may be mutually agreed upon by the parties or as Landlord may
be required to make by laws and requirements of public authorities,
(iii) at such times as such entries shall be required by circumstances
of emergency affecting the Premises or the Building, provided that in
such event, if practicable, Landlord or its agents shall be accompanied
by a designated representative of Tenant or member of the police, fire,
water or other municipal department concerned or of a recognized
protection company or of a public utility company which is concerned,
and (b) to take all materials into and upon the Premises which may be
required for any repairs, changes or maintenance and to store the same
therein for a reasonable time as reasonably required in connection with
the completion of such repairs, changes or maintenance. Landlord's
rights under this Section 11.1 shall be exercised in such manner as to
create the least practicable interference with Tenant's use of the
Premises; provided, however, that the foregoing shall not obligate
Landlord to perform any work outside of Business Hours on Business
Days. Except in the case of an emergency or if otherwise impracticable
under the circumstances, any entry on the Premises by Landlord pursuant
to this Section 11.1 shall be made after reasonable notice to Tenant.
11.2 LANDLORD'S RIGHT TO CHANGE ENTRIES, ETC. Landlord shall have the right
at any time without thereby creating any actual or constructive
eviction or incurring any liability to Tenant therefor, and without
abatement in rent, to change the arrangement or location of lobbies,
entrances, passageways, doors, doorways, stairways, elevators,
corridors and other like portions of the Building outside of the
Premises, provided that such change does not interfere with Tenant's
access to the Premises.
11.3 EXCAVATION. In the event that an excavation or any construction should
be made for building or other purposes upon land adjacent to the
Building, or should be authorized to be made, Tenant shall, if
necessary, afford to the person or persons causing or authorized to
cause such excavation or construction, license to enter the Premises
for the purpose of doing such work as shall reasonably be necessary to
protect or preserve the wall or walls of the Building, or the Building,
from injury or damage and to support them by proper foundations,
pinning and/or underpinning or otherwise. Such rights shall be
exercised in such manner as to create the least practicable
interference with Tenant's use of the Premises; provided, however, that
the foregoing shall not obligate such person to perform any work
outside of Business Hours on Business Days. In the event that such
excavation or construction renders the Premises wholly untenantable,
and Tenant shall vacate the Premises and cease doing business therein
as a result thereof, Basic Rent and Additional Rent shall be abated for
the period during which Tenant has vacated the Premises and such
untenantable condition remains in effect. This Section 11.3 shall act
as a waiver of any right to which Tenant is otherwise entitled by law
to claim a constructive eviction by reason of such untenantable
condition.
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ARTICLE 12
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT. If the Premises and/or the building systems which
service the Premises, including the HVAC system, shall be damaged by
fire or casualty or if a portion of the Building other than the
Premises shall be damaged by fire or casualty such that the Tenant does
not have reasonable access to the Premises or if the common areas of
the Building systems are substantially damaged by fire or other
casualty, Basic Rent and Additional Rent payable by Tenant shall ▇▇▇▇▇
proportionately for the period in which, by reason of such damage,
there is substantial interference with Tenant's use of the Premises,
having regard for the extent to which Tenant may be required to
discontinue Tenant's use of all or a portion of the Premises, but such
abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises (excluding any Alterations made by
Tenant pursuant to Section 5.2) to the condition in which they were
prior to such damage. If the Premises shall be affected by any exercise
of the power of eminent domain, Basic Rent and Additional Rent payable
by Tenant shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by Tenant. In
no event shall Landlord have any liability for damages to Tenant for
inconvenience, annoyance, or interruption of business arising from such
fire, casualty or eminent domain.
12.2 LANDLORD'S RIGHT OF TERMINATION. If the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially
damaged" meaning damage of such a character that the same cannot, in
ordinary course, reasonably be expected to be repaired within ninety
(90) days from the time that repair work would commence), or if any
part of the Building is taken by any exercise of the right of eminent
domain, then Landlord shall have the right to terminate this Lease
(even if Landlord's entire interest in the Premises may have been
divested) by giving notice of Landlord's election so to do within
ninety (90) days after the occurrence of such casualty or the effective
date of such taking, whereupon this Lease shall terminate thirty (30)
days after the date of such notice with the same force and effect as if
such date were the date originally established as the expiration date
hereof.
12.3 RESTORATION. If this Lease shall not be terminated pursuant to Section
12.2, Landlord shall thereafter use due diligence to restore the
Premises (excluding any Alterations made by Tenant pursuant to Section
5.2) to proper condition for Tenant's use and occupation, provided that
Landlord's obligation shall be limited to the amount of insurance
proceeds available therefor plus the amount of any deductible under
such property damage insurance. If, for any reason, such restoration
shall not be substantially completed within six (6) months after the
expiration of the 90-day period referred to in Section 12.2 (which
six-month period may be extended for such periods of time as Landlord
is prevented from proceeding with or completing such restoration for
any cause beyond Landlord's reasonable control, but in no event for
more than an additional three (3) months), Tenant shall have the right
to terminate this Lease by giving notice to Landlord thereof within
thirty (30) days after the expiration of such period (as so extended)
provided that such restoration is not completed within such period.
This Lease shall cease and come to an end without further liability or
obligation on the part of either
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party thirty (30) days after such giving of notice by Tenant unless,
within such 30-day period, Landlord substantially completes such
restoration. Such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to
complete such restoration, and time shall be of the essence with
respect thereto.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for
damages to the Property and the leasehold interest hereby created, and
to compensation accrued or hereafter to accrue by reason of such
taking, damage or destruction, and by way of confirming the foregoing,
Tenant hereby grants and assigns, and covenants with Landlord to grant
and assign to Landlord, all rights to such damages or compensation, and
covenants to deliver such further assignments and assurances thereof as
Landlord may from time to time request, and Tenant hereby irrevocably
appoints Landlord its attorney-in-fact to execute and deliver in
Tenant's name all such assignments and assurances. Nothing contained
herein shall be construed to prevent Tenant from prosecuting in any
condemnation proceedings a claim for the value of any of Tenant's
Removable Property installed in the Premises by Tenant at Tenant's
expense and for relocation expenses, provided that such action shall
not affect the amount of compensation otherwise recoverable by Landlord
from the taking authority.
12.5 LANDLORD'S INSURANCE. Landlord agrees to maintain in full force and
effect, during the Lease Term, property damage insurance with such
deductibles and in such amounts as may from time to time be carried by
reasonably prudent owners of similar buildings in the area in which the
Building is located, provided that in no event shall Landlord be
required to carry other than general commercial liability fire and
extended coverage insurance or insurance in amounts greater than full
replacement cost of the Building. Landlord may satisfy such insurance
requirements by including the Building in a so-called "blanket"
insurance policy, provided that the amount of coverage allocated to the
Building shall fulfill the foregoing requirements.
ARTICLE 13
DEFAULT
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this
Lease any one or more of the following events (herein referred to as a
"Default of Tenant") shall happen:
(i) Tenant shall fail to pay Basic Rent or Additional
Rent hereunder when due and such failure shall
continue for three (3) full Business Days after
written notice to Tenant from Landlord; or
(ii) Tenant shall neglect or fail to perform or observe
any other covenant herein contained on Tenant's part
to be performed or observed and Tenant shall fail to
remedy the same within thirty (30) days after notice
to Tenant specifying such neglect or failure, or if
such failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30)
day period, Tenant shall
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fail to commence promptly to remedy the same and to
prosecute such remedy to completion with diligence
and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law
directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of
creditors or shall be adjudicated insolvent, or shall
file any petition or answer seeking any
reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar
relief for itself under any present or future
Federal, State or other statute, law or regulation
for the relief of debtors (other than the Bankruptcy
Code, as hereinafter defined), or shall seek or
consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all
or any substantial part of its properties, or shall
admit in writing its inability to pay its debts
generally as they become due; or
(v) An Event of Bankruptcy (as hereinafter defined) shall
occur with respect to Tenant; or
(vi) A petition shall be filed against Tenant under any
law (other than the Bankruptcy Code) seeking any
reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar
relief under any present or future Federal, State or
other statute, law or regulation and shall remain
undismissed or unstayed for an aggregate of sixty
(60) days (whether or not consecutive), or if any
trustee, conservator, receiver or liquidator of
Tenant or of all or any substantial part of its
properties shall be appointed without the consent or
acquiescence of Tenant and such appointment shall
remain unvacated or unstayed for an aggregate of
sixty (60) days (whether or not consecutive); or
(vii) If: (y) Tenant shall fail to pay the Basic Rent or
Additional Rent hereunder when due or shall fail to
perform or observe any other covenant herein
contained on Tenant's part to be performed or
observed and Tenant shall cure any such failure
within the applicable grace period set forth in
clauses (i) or (ii) above; or (z) a Default of Tenant
of the kind set forth in clauses (i) or (ii) above
shall occur and Landlord shall, in its sole
discretion, permit Tenant to cure such Default after
the applicable grace period has expired; and a
similar failure or Default shall occur more than
twice within the next 365 days (whether or not such
similar failure is cured within the applicable grace
period);
then in any such case Landlord may terminate this Lease by notice to Tenant,
specifying a date not less than five (5) days after the giving of such notice on
which this Lease shall terminate, and
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this Lease shall come to an end on the date specified therein as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Lease Term, and Tenant will then quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
(b) For purposes of clause (a)(v) above, an "Event of
Bankruptcy" means the filing of a voluntary petition by Tenant, or the
entry of an order for relief against Tenant, under Chapter 7, 11, or 13
of the Bankruptcy Code, and the term "Bankruptcy Code" means 11
U.S.Css.101, et seq., If an Event of Bankruptcy occurs, then the
trustee of Tenant's bankruptcy estate or Tenant as debtor-
in-possession may (subject to final approval of the court) assume this
Lease, and may subsequently assign it, only if it does the following
within sixty (60) days after the date of the filing of the voluntary
petition, the entry of the order for relief (or such additional time as
a court of competent jurisdiction may grant, for cause, upon a motion
made within the original 60-day period):
(i) files a motion to assume the Lease with the
appropriate court;
(ii) satisfies all of the following conditions, which
Landlord and Tenant acknowledge to be commercially
reasonable:
(A) cures all Defaults of Tenant under this
Lease or provides Landlord with Adequate
Assurance (as defined below) that it will
(y) cure all monetary Defaults of Tenant
hereunder within ten (10) days from the date
of the assumption; and (z) cures all
non-monetary Defaults of Tenant hereunder
within thirty (30) days from the date of the
assumption;
(B) compensates Landlord and any other person or
entity, or provides Landlord with Adequate
Assurance that within ten (10) days after
the date of the assumption, it will
compensate Landlord and such other person or
entity for any pecuniary loss that Landlord
and such other person or entity incurred as
a result of any Default of Tenant, the
trustee, or the debtor-in-possession;
(C) provides Landlord with Adequate Assurance of
Future Performance (as defined below) of all
of Tenant's obligations under this Lease;
and
(D) delivers to Landlord a written statement
that the conditions herein have been
satisfied.
(c) For purposes only of the foregoing paragraph (b), and in
addition to any other requirements under the Bankruptcy Code, any
future federal bankruptcy law and applicable case law, "Adequate
Assurance" means at least meeting the following conditions, which
Landlord and Tenant acknowledge to be commercially reasonable:
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(i) entering an order segregating sufficient cash to pay
Landlord and any other person or entity under
paragraph (b) above, and
(ii) granting to Landlord a valid first lien and security
interest (in form acceptable to Landlord) in all
property comprising the Tenant's "property of the
estate," as that term is defined in Section 541 of
the Bankruptcy Code, which lien and security interest
secures the trustee's or debtor-in-possession's
obligation to cure the monetary and non-monetary
defaults under the Lease within the periods set forth
in paragraph (b) above.
(d) For purposes only of paragraph (b), and in addition to any
other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "Adequate Assurance of Future
Performance" means at least meeting the following conditions, which
Landlord and Tenant acknowledge to be commercially reasonable:
(i) the trustee or debtor-in-possession depositing with
Landlord, as security for the timely payment of rent
and other monetary obligations, an amount equal to
the sum of two (2) months' Basic Rent plus an amount
equal to two (2) months' installments on account of
Taxes and Operating Expenses, computed in accordance
with Articles 8 and 9;
(ii) the trustee or the debtor-in-possession agreeing to
pay in advance, on each day that the Basic Rent is
payable, the monthly installments on account of Taxes
and Operating Expenses, computed in accordance with
Articles 8 and 9 hereof;
(iii) the trustee or debtor-in-possession providing
adequate assurance of the source of the rent and
other consideration due under this Lease; and
(iv) Tenant's bankruptcy estate and the trustee or
debtor-in-possession providing Adequate Assurance
that the bankruptcy estate (and any successor after
the conclusion of the Tenant's bankruptcy
proceedings) will continue to have sufficient
unencumbered assets after the payment of all secured
obligations and administrative expenses to assure
Landlord that the bankruptcy estate (and any
successor after the conclusion of the Tenant's
bankruptcy proceedings) will have sufficient funds to
fulfill Tenant's obligations hereunder.
(e) If the trustee or the debtor-in-possession assumes the
Lease under paragraph (b) above and applicable bankruptcy law, it may
assign its interest in this Lease only if the proposed assignee first
provides Landlord with Adequate Assurance of Future Performance of all
of Tenant's obligations under the Lease,
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and if Landlord determines, in the exercise of its reasonable business
judgment, that the assignment of this Lease will not breach any other
lease, or any mortgage, financing agreement, or other agreement
relating to the Property by which Landlord or the Property is then
bound (and Landlord shall not be required to obtain consents or waivers
from any third party required under any lease, mortgage, financing
agreement, or other such agreement by which Landlord is then bound).
(f) For purposes only of paragraph (e) above, and in addition
to any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "Adequate Assurance of Future
Performance" means at least the satisfaction of the following
conditions. which Landlord and Tenant acknowledge to be commercially
reasonable:
(i) the proposed assignee submitting a current financial
statement, audited by a certified public accountant,
that allows a net worth and working capital in
amounts determined in the reasonable business
judgment of Landlord to be sufficient to assure the
future performance by the assignee of Tenant's
obligation under this Lease; and
(ii) if requested by Landlord in the exercise of its
reasonable business judgment, the proposed assignee
obtaining a guarantee (in form and substance
satisfactory to Landlord) from one or more persons
who satisfy Landlord's standards of creditworthiness;
(g) If this Lease shall have been terminated as provided in
this Article 13, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the Premises shall
be taken or occupied by someone other than Tenant, then Landlord may
re-enter the Premises, either by summary proceedings, ejectment or
otherwise, and remove and dispossess Tenant and all other persons and
any and all property from the same, as if this Lease had not been made.
(h) In the event of any termination, Tenant shall pay the
Basic Rent, Additional Rent and other sums payable hereunder up to the
time of such termination, and thereafter Tenant, until the end of what
would have been the Lease Term of this Lease in the absence of such
termination, and whether or not the Premises shall have been relet,
shall be liable to Landlord for, and shall pay to Landlord, as
liquidated current damages: (y) the Basic Rent, Additional Rent and
other sums that would be payable hereunder if such termination had not
occurred, less the net proceeds, if any, of any reletting of the
Premises, after deducting all expenses in connection with such
reletting, including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees, advertising,
expenses of employees, Alteration costs and expenses of preparation for
such reletting; and (z) if, in accordance with Section 4.1(a), Tenant
commenced payment of the full amount of Basic Rent on any day other
than the
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Commencement Date, the amount of Basic Rent that would have been
payable during the period beginning on the Commencement Date and ending
on the day Tenant commenced payment of the full amount of Basic Rent
under such Section 4.1(a). Tenant shall pay the portion of such current
damages referred to in clause (y) above to Landlord monthly on the days
which the Basic Rent would have been payable hereunder if this Lease
had not been terminated, and Tenant shall pay the portion of such
current damages referred to in clause (z) above to Landlord upon such
termination.
(i) At any time after such termination, whether or not
Landlord shall have collected any such current damages, as liquidated
final damages and in lieu of all such current damages beyond the date
of such demand, at Landlord's election Tenant shall pay to Landlord an
amount equal to the excess, if any, of the Basic Rent, Additional Rent
and other sums as hereinbefore provided which would be payable
hereunder from the date of such demand (assuming that, for the purposes
of this paragraph, annual payments by Tenant on account of Taxes and
Operating Expenses would be the same as the payments required for the
immediately preceding Operating or Tax Year for what would be the then
unexpired Lease Term of this Lease if the same remained in effect),
over the then fair net rental value of the Premises for the same
period.
(j) In case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord may (i)
re-let the Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms which may at Landlord's
option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Lease Term and may grant
concessions or free rent to the extent that Landlord considers
advisable and necessary to re-let the same and (ii) may make such
reasonable Alterations, repairs and decorations in the Premises as
Landlord in its sole judgment considers advisable and necessary for the
purpose of re-letting the Premises; and the making of such Alterations,
repairs and decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in no
event be liable in any way whatsoever for failure to re-let the
Premises, or, in the event that the Premises are re-let, for failure to
collect the rent under such re-letting. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed, or in
the event of Landlord obtaining possession of the Premises, by reason
of the violation by Tenant of any of the covenants and conditions of
this Lease.
(k) If a Guarantor of this Lease is named in Section 1.2, the
happening of any of the events described in paragraphs (a)(iv)-(a)(vi)
of this Section 13.1 with respect to the Guarantor shall constitute a
Default of Tenant hereunder.
(l) The specified remedies to which Landlord may resort
hereunder are not intended to be exclusive of any remedies or means of
redress to which Landlord may at any time be entitled lawfully, and
Landlord may invoke any
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remedy (including the remedy of specific performance) allowed at law or
in equity as if specific remedies were not herein provided for.
(m) All costs and expenses incurred by or on behalf of
Landlord (including, without limitation, attorneys' fees and expenses
at both the trial and appellate levels) in enforcing its rights
hereunder or occasioned by any default or Default of Tenant hereunder,
shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT. Except as otherwise expressly provided in herein to
the contrary, 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 thirty
(30) days (except in the case of an emergency, in which event Landlord
shall commence the performance of such obligations, as promptly as
practicable under the circumstances), or if such failure is of such a
nature that Landlord cannot reasonably remedy the same within such
thirty (30) day period, Landlord shall fail to commence promptly (and
in any event within such thirty (30) day period) to remedy the same and
to prosecute such remedy to completion with diligence and continuity.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not
do or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall increase the rate of
property or liability insurance on the Premises or the Property above
the standard rate applicable to the Premises being occupied for
Permitted Uses; and Tenant further agrees that, in the event that
Tenant shall do any of the foregoing, Tenant will promptly pay to
Landlord, on demand, any such increase resulting therefrom, which shall
be due and payable as Additional Rent hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of
any action or non-action on the part of the other, no matter how long
the same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of the other's rights hereunder. Further, no
waiver at any time of any of the provisions hereof by Landlord or
Tenant shall be construed as a waiver of any of the other provisions
hereof, and a waiver at any time of any of the provisions hereof shall
not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any
action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's or Tenant's consent
or approval to or of any subsequent similar act by the other.
(b) No payment by Tenant, or acceptance by Landlord, of a
lesser amount than shall be due from Tenant to Landlord shall be
treated otherwise than as a payment on account of the earliest
installment of any payment due from Tenant under the provisions hereof.
The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such
check, that such lesser amount is payment in full, shall be
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given no effect, and Landlord may accept such check without prejudice
to any other rights or remedies which Landlord may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Basic Rent and Additional
Rent and observing, keeping and performing all of the other terms and
provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the Lease Term hereof, without hindrance or
ejection by any persons lawfully claiming under Landlord to have title
to the Premises superior to Tenant; the foregoing covenant of quiet
enjoyment is in lieu of any other covenant, express or implied.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically agreed
that Landlord (original or successor) shall never be personally liable
for any such judgment, or for the payment of any monetary obligation to
Tenant. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise
have to obtain injunctive relief against Landlord or Landlord's
successors in interest, or to take any action not involving the
personal liability of Landlord (original or successor) to respond in
monetary damages from Landlord's assets other than Landlord's equity
interest in the Property.
(b) With respect to any services or utilities to be furnished
by Landlord to Tenant, Landlord shall in no event be liable for failure
to furnish the same when prevented from doing so by Force Majeure
including, without limitation, strike, lockout, breakdown, accident,
order or regulation of or by any governmental authority, or failure of
supply, or failure whenever and for so long as may be necessary by
reason of the making of repairs or changes which Landlord is required
or is permitted by this Lease or by law to make or in good ▇▇▇▇▇ ▇▇▇▇▇
necessary, or inability by the exercise of reasonable diligence to
obtain supplies, parts or employees necessary to furnish such services,
or because of war or other emergency, or for any other cause beyond
Landlord's reasonable control, or for any cause due to any act or
neglect of Tenant or Tenant's contractors, agents, employees, licensees
or any person claiming by, through or under Tenant, nor shall any such
failure give rise to any claim in Tenant's favor that Tenant has been
evicted, either constructively or actually, partially or wholly,
provided Landlord shall use reasonable efforts to minimize interference
with Tenant's business.
(c) In no event shall Landlord ever be liable to Tenant for
any loss of business or any other indirect or consequential damages
suffered by Tenant from whatever cause.
(d) Where provision is made in this Lease for Landlord's
consent and Tenant shall request such consent and Landlord shall fail
or refuse to give such consent, Tenant shall not be entitled to any
damages for any withholding by Landlord of its consent, it being
intended that Tenant's sole remedy shall be an action for specific
performance or injunction, and that such remedy shall be
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available only in those cases where Landlord has expressly agreed in
writing not to unreasonably withhold its consent. Furthermore, whenever
Tenant requests Landlord's consent or approval (whether or not provided
for herein), Tenant shall pay to Landlord, on demand, as Additional
Rent, any expenses reasonably incurred by Landlord (including, without
limitation, legal fees and costs, if any) in connection therewith.
(e) With respect to any repairs or restoration which are
required or permitted to be made by Landlord, the same may be made
during normal Business Hours and Landlord shall have no liability for
damages to Tenant for inconvenience, annoyance or interruption of
business arising therefrom.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any
person, firm or other entity that it holds a mortgage or a ground lease
which includes the Premises, no notice from Tenant to Landlord alleging
any default by Landlord shall be effective unless and until a copy of
the same is given to such holder or ground lessor (provided Tenant
shall have been furnished with the name and address of such holder or
ground lessor), and the curing of any of Landlord's defaults by such
holder or ground lessor shall be treated as performance by Landlord.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
assignment by Landlord of Landlord's interest in this Lease, or the
rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage on property which
includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage,
shall never be treated as an assumption by such holder of any of the
obligations of Landlord hereunder unless such holder shall, by notice
sent to Tenant, specifically otherwise elect and that, except as
aforesaid, such holder shall be treated as having assumed Landlord's
obligations hereunder only upon foreclosure of such holder's mortgage
and the taking of possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest
in the Property by a purchaser which, simultaneously therewith, leases
Landlord's entire interest in the Property back to the seller thereof
be treated as an assumption by operation of law or otherwise, of
Landlord's obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title, for
performance of Landlord's obligations hereunder. In any such event,
this Lease shall be subject and subordinate to the lease to such
purchaser. For all purposes, such seller-lessee, and its successors in
title, shall be the Landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in
the event of any transfer of title to the Property by Landlord,
Landlord shall thereafter be entirely freed and relieved from the
performance and observance of all covenants and obligations hereunder
which accrue after the date of such transfer (and, to the extent
assumed by any transferee in writing, covenants and obligations
hereunder
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which have accrued prior to the date of such transfer), and such
transferee shall be deemed to have assumed all prospective covenants
and obligations hereunder.
14.7 RULES AND REGULATIONS. Tenant shall abide by reasonable rules and
regulations from time to time established by Landlord ("Rules and
Regulations") to the extent such Rules and Regulations are not in
conflict with the terms of this Lease, it being agreed that such Rules
and Regulations will be established and applied by Landlord in a
nondiscriminatory fashion, such that all Rules and Regulations shall be
generally applicable to other tenants, of similar nature to the Tenant
named herein, of the Building. Landlord agrees to use reasonable
efforts to insure that any such Rules and Regulations are uniformly
enforced, but Landlord shall not be liable to Tenant for violation of
the same by any other tenant or occupant of the Building, or persons
having business with them. In the event that there shall be a conflict
between such Rules and Regulations and the provisions of this Lease,
the provisions of this Lease shall control. Rules and Regulations
currently in effect are set forth in EXHIBIT F hereto.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums under
this Lease designated as Additional Rent, Landlord shall have the same
rights and remedies as Landlord has hereunder for failure to pay Basic
Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
14.10 PROVISIONS BINDING ETC. Except as herein otherwise provided, the terms
hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant (except in
the case of Tenant, ONLY such assigns as may be permitted hereunder)
and, if Tenant shall be an individual, upon and to his heirs,
executors, administrators, successors and permitted assigns. Each term
and each provision of this Lease to be performed by Tenant shall be
construed to be both a covenant and a condition. The reference
contained to successors and assigns of Tenant is not intended to
constitute a consent to assignment by Tenant, but has reference only to
those instances in which Landlord may later give consent to a
particular assignment as required by those provisions of Article 6
hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but, if the Lease
Term of this Lease (including any extended term) is seven (7) years or
longer, each party hereto agrees, on the request of the other, to
execute a so-called notice of lease in recordable form and complying
with applicable law and reasonably satisfactory to Landlord's
attorneys. In no event shall such document set forth the rent or other
charges payable by Tenant under this Lease; and any such document shall
expressly state that it is executed pursuant to the provisions
contained in this Lease, and is not intended to vary the terms and
conditions of this Lease.
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14.12 NOTICES. Whenever, by the terms of this Lease, notices, demands,
consents or approvals shall or may be given either to Landlord or to
Tenant, such notice, demand, consent or approval shall be in writing
and shall be sent by registered or certified mail, postage prepaid,
return receipt requested or by a nationally recognized overnight
courier service (next Business Day delivery):
If intended for Landlord, addressed to Landlord at Landlord's Original
Address and marked: "Attention: Asset Manager, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇," with a copy to
▇▇▇▇▇ Van, Esq., ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (or to
such other address or addresses as may from time to time hereafter be designated
by Landlord by like notice).
If intended for Tenant, addressed to Tenant at Tenant's Original
Address, attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ with a copy to Tenant's General Counsel at
Tenant's Original Address (or to such other address or addresses as may from
time to time hereafter be designated by Tenant by like notice).
All such notices, demands, consents or approvals shall be effective
when deposited in the United States Mail within the Continental United States or
with an overnight courier service, provided that the same are received in
ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and this Lease expressly supersedes any proposals
or other written documents relating hereto. This Lease may be modified
or altered only by written agreement between Landlord and Tenant, and
no act or omission of any employee or agent of Landlord shall alter,
change or modify any of the provisions hereof.
14.14 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS. The paragraph
headings throughout this instrument are for convenience and reference
only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Lease. The provisions of this Lease
shall be construed as a whole, according to their common meaning
(except where a precise legal interpretation is clearly evidenced), and
not for or against either party. Use in this Lease of the words
"including," "such as" or words of similar import, when followed by any
general term, statement or matter, shall not be construed to limit such
term, statement or matter to the specified item(s), whether or not
language of non-limitation, such as "without limitation" or "including,
but not limited to," or words of similar import, are used with
reference thereto, but rather shall be deemed to refer to all other
terms or matters that could fall within a reasonably broad scope of
such term, statement or matter.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate
to any mortgage or ground lease from time to time encumbering the
Premises, whether
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executed and delivered prior to or subsequent to the date of this
Lease, if the holder of such mortgage or ground lease shall so elect,
provided that such holder enters into a written agreement
(substantially in the form annexed hereto as EXHIBIT H or such other
form as may then be customarily used by such holder) that, subject to
such reasonable qualifications as such holder may reasonably impose, in
the event that the holder shall succeed to the interests of Landlord
hereunder pursuant to such mortgage, ground lease or other encumbrance,
so long as no Default of Tenant exists hereunder, Tenant's right to
possession of the Premises shall not be disturbed and Tenant's other
rights hereunder shall not be adversely affected by any foreclosure of
such mortgage or encumbrance or by termination of such ground lease and
such holder shall assume Landlord's obligation under the Lease accruing
after Landlord's foreclosure of its mortgage or its taking of
possession of the Premises for the purpose of foreclosing. If this
Lease is subordinate to any mortgage or ground lease and the holder
thereof (or successor) shall succeed to the interest of Landlord, at
the election of such holder (or successor) Tenant shall attorn to such
holder and this Lease shall continue in full force and effect between
such holder (or successor) and Tenant. Tenant agrees to execute such
instruments of subordination or attornment in confirmation of the
foregoing agreement as such holder may reasonably request.
14.16 STATUS REPORT; FINANCIAL STATEMENTS. Recognizing that both parties may
find it necessary to establish to third parties such as accountants,
banks, mortgagees, ground lessors, or the like, the then current status
of performance hereunder, either party, on the request of the other
made from time to time, will promptly furnish to Landlord, or the
holder of any mortgage or ground lease encumbering Premises, or to
Tenant, as the case may be, a statement of the status of any matter
pertaining to this Lease, including, without limitation,
acknowledgments that (or the extent to which) each party is in
compliance with its obligations under the terms of this Lease. Within
sixty (60) days after the end of each fiscal year of Tenant, Tenant
shall furnish Landlord with financial statements of Tenant in form and
substance reasonably satisfactory to Landlord.
14.17 SECURITY DEPOSIT. If, in Section 1.2 hereof, a security deposit is
specified, Tenant, at its expense, shall deliver to Landlord, on the
date of execution and delivery of this Lease, a clean, irrevocable
Letter of Credit issued by and drawn upon any commercial bank
acceptable to Landlord with a banking office in Boston or New York
(hereinafter referred to as the "Issuing Bank") which Letter of Credit
shall (i) name Landlord as beneficiary thereof, (ii) have a term of not
less than one (1) year, (iii) be in the original amount equal to
$550,000 and subject to reduction as provided in Section 1.2 hereof,
and (iv) otherwise be in form and content satisfactory to Landlord. The
Letter of Credit shall, in any event, provide that:
(1) The Issuing Bank shall pay to Landlord an amount up to the
face amount of the Letter of Credit upon presentation of a statement
from Landlord that a Default of Tenant has occurred, specifying the
nature of such Default and a demand for payment in the amount to be
drawn and notice of such presentation shall be delivered simultaneously
to Tenant;
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(2) The Letter of Credit shall be deemed to be automatically
renewed, without amendment, for consecutive periods of one year each
and shall have a final expiry date of not earlier than January 31,
2005, unless the Issuing Bank sends written notice (hereinafter called
the "Non-Renewal Notice") to Landlord both by Federal Express or
another recognized national or regional courier and by certified or
registered mail, return receipt requested, not less than sixty (60)
days next preceding the then expiration date of the Letter of Credit,
that it elects not to have such Letter of Credit renewed;
(3) Landlord, after receipt of the Non-Renewal Notice, shall
have the right, exercisable by a demand for payment draft only, to draw
upon the Letter of Credit and receive the proceeds thereof (which shall
be held by Landlord as a cash deposit pursuant to the terms of this
Section 14.17 pending the replacement of such Letter of Credit or
applied as permitted by the terms of this Section 14.17); and
(4) Upon Landlord's sale or other transfer of the Building, or
Landlord's interest therein, or a leasing of the Building, the Letter
of Credit shall be transferable by Landlord and Landlord shall
thereupon be released by Tenant from all liability for the return of
such Letter of Credit. In such event, Tenant agrees to look solely to
the new Landlord for the return of said Letter of Credit. Tenant shall
execute such documents as may be necessary to accomplish such transfer
or assignment of the Letter of Credit and shall pay any transfer fees
of the Issuing Bank.
Tenant covenants that it will not assign or encumber, or attempt to
assign or encumber, the Letter of Credit or proceeds thereof and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment, or attempted encumbrance. If Landlord
determines that the financial condition of the Issuing Bank has so declined as
to cause concern that the Issuing Bank may not honor a draw on its Letter of
Credit and provides Tenant with notice of the same, Tenant shall promptly obtain
a replacement Letter of Credit complying with the terms hereof from another
commercial bank acceptable to Landlord.
Landlord shall have the right from time to time without prejudice to
any other remedy Landlord may have on account thereof, to apply such deposit, or
any part thereof, to Landlord's damages arising from, or to cure, any Default of
Tenant. If Landlord shall so apply any or all of such deposit, Tenant shall
promptly deposit with Landlord the amount applied to be held as security
hereunder or obtain a replacement Letter of Credit in such amount conforming
with the other requirements of this Section 14.17.
Provided that no Default of Tenant then exists, Tenant may, in each
Lease Year of the Lease Term beginning with the Lease Year commencing June 15,
2000, substitute for the Letter of Credit then held by Landlord, a replacement
Letter of Credit in the amount required to be posted as a Security Deposit for
the next succeeding Lease Year as set forth in Section 1.2 hereof, it being
understand that Landlord shall not be obligated to return any Letter of Credit
in its possession until Tenant has delivered a substitute Letter of Credit in
the amount required
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56
pursuant to Section 1.2 hereof for such applicable Lease Year. Provided Landlord
has had delivered to it by Tenant a substitute Letter of Credit in the
applicable amount and otherwise conforming with the other requirements of this
Section 14.17, Landlord shall immediately return to Tenant any Letter of Credit
for which replacement or substitution has been made by Tenant in accordance with
this Section 14.17.
Provided that no Default of Tenant then exists, Landlord shall return
the Letter of Credit, or so much thereof as shall have theretofore not been
applied in accordance with the terms of this Section 14.17, to Tenant on the
expiration or earlier termination of the Lease Term and surrender of possession
of the Premises by Tenant to Landlord at such time. While Landlord holds as a
cash deposit the proceeds resulting from a draw having been made upon the Letter
of Credit, Landlord shall have no obligation to pay interest on the same and
shall have the right to commingle the same with Landlord's other funds. If
Landlord conveys Landlord's interest under this Lease, the cash deposit, or any
part thereof not previously applied, may be turned over by Landlord to
Landlord's grantee, and, if so turned over and receipt of such cash deposit is
acknowledged by Landlord's grantee, Tenant agrees to look solely to such grantee
for proper application of the deposit in accordance with the terms of this
Section 14.17, and the return thereof in accordance herewith. The holder of a
mortgage shall not be responsible to Tenant for the return or application of any
such cash deposit, whether or not it succeeds to the position of Landlord
hereunder, unless such cash deposit shall have been received in hand by such
holder.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
required, to pay such sums or do any act which requires the expenditure
of monies which may be necessary or appropriate by reason of the
failure or neglect of Tenant to perform any of the provisions of this
Lease, and in the event of the exercise of such right by Landlord,
Tenant agrees to pay to Landlord forthwith upon demand all such sums,
together with interest thereon at a rate equal to three percent (3%)
over the base rate in effect from time to time at Fleet National Bank,
as an additional charge. Any payment of Basic Rent, Additional Rent or
other sums payable hereunder not paid when due shall, at the option of
Landlord, bear interest at a rate equal to three percent (3%) over the
base rate in effect from time to time at Fleet National Bank from the
due date thereof and shall be payable forthwith on demand by Landlord,
as an additional charge.
14.19 HOLDING OVER. Any holding over by Tenant after the expiration of the
Lease Term shall be treated as a daily tenancy at sufferance at a rate
equal to two (2) times the Basic Rent then in effect plus Additional
Rent and other charges herein provided (prorated on a daily basis).
Tenant shall also pay to Landlord all damages, direct and/or indirect,
sustained by reason of any such holding over. Otherwise, such holding
over shall be on the terms and conditions set forth in this Lease as
far as applicable.
14.20 SURRENDER OF PREMISES. Upon the expiration or earlier termination of
the Lease Term, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition
and repair, together with all Alterations which may have been made or
installed in, on or to the Premises prior to or during the Lease Term,
excepting only ordinary wear and use and damage by fire or other
casualty for which, under other provisions of this Lease, Tenant has no
responsibility of repair or restoration. Tenant shall remove all of
Tenant's Removable Property and, to the extent
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57
specified by Landlord, all Alterations made by Tenant and all
partitions wholly within the Premises unless installed initially by
Landlord in preparing the Premises for Tenant's occupancy or as
otherwise provided in Section 5.2; and shall repair any damage to the
Premises or the Building caused by such removal. Any of Tenant's
Removable Property which shall remain in the Building or on the
Premises after the expiration or termination of the Lease Term shall be
deemed conclusively to have been abandoned, and either may be retained
by Landlord as its property or may be disposed of in such manner as
Landlord may see fit, at Tenant's sole cost and expense.
14.21 BROKERAGE. Tenant warrants and represents that Tenant has dealt with no
broker in connection with the consummation of this Lease other than
Broker, and, in the event of any brokerage claims against Landlord
predicated upon prior dealings with Tenant, Tenant agrees to defend the
same and indemnify Landlord against any such claim (except any claim by
Broker who shall be paid by Landlord).
14.22 Y2K INDEMNIFICATION. Landlord represents to Tenant that it (a) has
initiated a review and assessment of all areas within its and its
respective affiliates' businesses and operation (including those
affected by their respective suppliers and vendors) that could be
adversely affected by the Year 2000 Problem (hereinafter defined), (b)
has developed a plan and time line for addressing the Year 2000 Problem
on a timely basis and is following such plan and timetable, (c) has no
reason to believe that any of its and its respective affiliates'
businesses or operations (including those affected by their respective
suppliers and vendors) related to the ownership, management, operation
and maintenance of the Building will be adversely impacted by the Year
2000 Problem, and (d) it and its affiliates' are Year 2000 Compliant
(hereinafter defined). "Year 2000 Problem" means the risk that computer
applications used by Landlord and its affiliates (and their respective
suppliers and vendors) may be unable to recognize or properly perform
date-sensitive functions involving certain dates prior to, or any date
after, December 31, 1999. "Year 2000 Compliant" means that all computer
applications used by Landlord and its affiliates related to the
ownership, management, operation and maintenance of the Building are
able to avoid the Year 2000 Problem.
14.23 SIGNAGE. Tenant shall not place on the exterior of the Premises
(including both interior and exterior surfaces of doors and interior
surfaces of windows) or on any part of the Building outside the
Premises, any signs, symbol, advertisement or the like visible to
public view outside of the Premises. Tenant, at its sole expense, shall
be permitted to place signs, corporate logos or lettering on the entry
doors to the Premises and within the Premises provided such signs
conform to building standards adopted by Landlord in its reasonable
discretion and Tenant has submitted to Landlord a plan or sketch in
reasonable detail (showing, without limitation, size, color, location,
materials and method of affixation) of the signs to be places on such
entry doors. Landlord agrees, however, to maintain, at Landlord's
expense and in accordance with Building Standards adopted by Landlord
in its sole discretion, a tenant directory in the lobby of the Building
and, if the Landlord has installed Tenant directories on each floor of
the Building, in the third floor's elevator lobby, in which will be
placed Tenant's name and the location of the Premises in the Building.
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14.24 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts
as the same may from time to time exist.
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59
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in multiple
copies, each to be considered an original hereof, as of the date first set forth
above.
LANDLORD: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇.
By: Winter Street OpCo, L.L.C., its managing member
By: Leggat ▇▇▇▇▇▇ Opportunity Investors, LLC,
its managing member
By: LM Opportunity Principals LLC,
its managing member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Member
TENANT: FIREPOND, INC.
By: /s/ SIGNATURE ILLEGIBLE
--------------------------------------------
Vice President/CFO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Secretary
60
EXHIBIT A
FLOOR PLANS OF PREMISES
[Diagram]
61
EXHIBIT B
SITE PLAN
[Site Plan should show both 880 and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇]
[Diagram]
62
EXHIBIT C
TENANT'S WORK LETTER
This Exhibit C and the provisions of the Lease (subject to the last
sentence of Section 3.3 of the Lease and Section 7.6 of the Lease) set forth the
terms and provisions which shall govern the performance of Tenant's Work (as
hereinafter defined).
1. DEFINITIONS
As used in this EXHIBIT C, all capitalized terms shall have the same
meanings as defined in the Lease unless otherwise defined herein. In addition,
the following terms shall have the following respective meanings:
A. "Tenant's Work" shall mean the work to be performed by Tenant
in preparing the Premises for Tenant's occupancy.
B. "Plans" shall mean complete plans, working drawings,
specifications and information necessary for the performance of Tenant's Work.
C. "Tenant's Work Rules" shall have the meaning provided in
Section 2 hereof.
D. "Landlord's Contribution" shall have the meaning provided in\
Section 15A hereof.
E. "Tenant's Dumpster Location" shall have the meaning provided
in Section 8B hereof.
F. "Notice Day" shall have the meaning provided in Section 10B
hereof.
G. "Requisition" shall have the meaning provided in Section 15A
hereof.
2. CONDITIONS TO PERFORMANCE OF TENANT'S WORK
All Tenant's Work shall be performed subject to, and in accordance with
the requirements of, Exhibit C-1 attached hereto, entitled "Tenant Construction
Work at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, MA" (referred to herein as "Tenant's Work
Rules"). Landlord agrees that:
A. Wherever the consent or approval of Landlord or Landlord's
Construction Representative (as defined in Section 1.2 of the Tenant's Work
Rules) is required under the Tenant's Work Rules or hereunder, such consent or
approval shall not be unreasonably withheld or conditioned. Landlord and
Landlord's Construction Representative shall respond to any request for consent
or approval under the Tenant's Work Rules or hereunder as promptly as possible
based upon the nature of such request and, where specific time periods for
consent or approval are set forth in the Tenant's Work Rules or hereunder,
within such time periods.
B. In enforcing the Tenant's Work Rules and in making common
Building facilities (including, without limitation, elevators and loading docks)
available to Tenant during the performance of Tenant's Work, Landlord shall act
in a reasonable and nondiscriminatory manner.
63
Tenant shall cooperate, and shall cause its contractors to cooperate, with
Landlord in a reasonable manner so that all tenants of the Building shall have
access to and use of the Building's common facilities in an efficient and timely
manner.
C. All Tenant's Work shall be performed in compliance with: (i)
all applicable laws, rules, orders and regulations of governmental authorities
having jurisdiction thereof; (ii) orders, rules and regulations of any Board of
Fire Underwriters, and governing insurance rating bureaus; and (iii) the
approved (i.e. by Landlord) Plans for Tenant's Work. All Tenant's Work shall be
performed in a first-class manner using Building Standard materials consistent
with the first-class character of the Building.
3. PREPARATION OF TENANT'S PLANS; PLAN REQUIREMENTS; APPROVAL BY LANDLORD
(a) Tenant shall submit to Landlord, for Landlord's approval,
complete Plans necessary for the performance of Tenant's Work.
(b) The Plans shall be fully detailed and coordinated, shall show
complete dimensions, shall have designated thereon all points of location and
other matters required to perform Tenant's Work and shall consist of the final
plans and specifications (including air-conditioning, ventilating, electrical,
and plumbing design drawings and specifications) prepared by Tenant's licensed
interior architect or designer and engineer approved by Landlord to describe the
manner in which Tenant intends to finish the Premises. Each submission shall
consist of three (3) sets of the relevant Plans. Notwithstanding the foregoing,
Tenant may submit to Landlord for approval two separate submission of Plans at
different times, one submission consisting of the architectural and structural
Plans and the other submission consisting of the mechanical, electrical,
plumbing and sprinkler Plans. Submissions shall identify changes from prior
submissions. After approval by Landlord of any Plans, any changes thereto from
time to time made by Tenant shall be approved by Landlord in accordance with
subsection (c) below. All Plans shall comply with and conform to Landlord's
existing plans for the Building and with all legal requirements relating to
construction of the Building and/or the Premises. Upon request from Tenant from
time to time Landlord will deliver to Tenant copies of the plans for the
Building, at Tenant's cost if the requested plans have been previously delivered
to Tenant.
(c) Landlord's review and approval of Tenant's Plans shall be as
to layout only and shall not be deemed to be an approval of the legality of the
Plans, the cost of Tenant's Work, or whether the Plans will satisfy Tenant's
needs. Subject to the preceding sentence, after approval by Landlord, the Plans
shall not be changed or modified in any respect by Tenant in any way which
affects the HVAC (on a Building-wide basis), plumbing, electrical or other
systems of the Building, or the structure of the Building, without the further
approval in writing by Landlord in accordance with this subsection (c) below.
Landlord will not unreasonably withhold its approval of any Plans or any change
or modification thereof. Landlord shall specify in reasonable detail any
objections to any of such Plans or changes thereto, as the case may be. Provided
that any such request shall specify that failure to disapprove the same within
ten (10) Business Days shall be deemed approval thereof, failure to timely
disapprove any such Plans or changes thereto shall, for all purposes of the
Lease and this Exhibit C, be deemed to be approval thereof, in writing, by
Landlord. No Tenant Work shall be commenced prior to the approval (or deemed
approval) by Landlord of Plans therefor. Tenant shall have the right, subject to
the terms and provisions of the
64
Lease and this Exhibit C, to perform Tenant's Work shown on any Plans, or any
changes thereto, approved by Landlord.
4. PERFORMANCE OF TENANT'S WORK; TENANT'S COST
(a) Tenant shall complete Tenant's Work in accordance with the
approved Plans. Except as provided in Section 15 hereof, Tenant's Work shall be
completed at Tenant's sole cost and expense.
(b) Tenant shall perform all of Tenant's Work by contracting
separately with Landlord's contractor performing the Base Building Work (i.e.,
ADP ▇▇▇▇▇▇▇▇, Inc.).
(c) Upon completion of Tenant's Work, Tenant shall deliver to
Landlord three (3) complete sets of Tenant's Plans, as changed, and shop
drawings.
5. LANDLORD COOPERATION WITH TENANT'S FILINGS FOR GOVERNMENTAL APPROVALS
Landlord shall cooperate with Tenant, in such manner as Tenant may
reasonably request, in connection with any filings which Tenant is required to
make with appropriate governmental authorities in connection with the
performance of Tenant's Work. Such cooperation shall include, without
limitation, the prompt execution of all documents, instruments, and certificates
as are reasonably required by such governmental authorities in connection with
the performance of Tenant's Work.
6. INTENTIONALLY DELETED
7. COSTS CHARGEABLE TO TENANT IN CONNECTION WITH TENANT'S WORK
Tenant shall pay to Landlord a construction management fee equal to two
percent (2.0%) of Landlord's Contribution in connection with the review and
approval by Landlord, or its designees, agents, representatives, employees,
contractors or subcontractors, of any Plans, or changes thereto, prepared by
Tenant.
8. LOADING DOCKS
A. Subject to Building scheduling requirements in accordance with
Section 2B hereof and coordination with Landlord's Construction Representative
and Landlord's general contractor performing the Base Building Work, and causes
beyond Landlord's reasonable control, access to the Building loading docks will
be made available to Tenant and Tenant's contractor seven (7) days per week,
twenty-four (24) hours per day. Tenant shall pay to Landlord Landlord's then
actual reasonable out-of-pocket costs to provide security to the Building
loading docks during other than Business Hours. Notwithstanding the foregoing,
in the event that any other contractor(s) performing substantial construction
work in the Building uses the Building loading docks at any time during other
than such Business Hours and during which Tenant shall also be using such
Building loading docks, Landlord shall charge such contractors) for and to the
extent of such usage. At all times that Tenant shall be using the Building
loading docks during other than such Business Hours, Landlord shall maintain a
log setting forth the times (if any) that each contractor performing substantial
construction work in the Building uses the Building
65
loading docks during other than such Business Hours, and Landlord shall cause
each such contractor to sign time sheets with respect thereto. Tenant or its
contractor shall also sign similar time sheets with respect to the use of the
Building loading docks during other than such Business Hours.
B. During Business Hours, Tenant shall have right to use two (2)
dumpster locations ("Tenant's Dumpster Location") for the delivery and removal
of Tenant's construction debris as follows: (i) at such times during Business
Hours as Tenant's trash removal vehicles are picking up trash, Tenant may use
both Tenant's Dumpster Locations (i.e., one for the full dumpster and one for
the empty dumpster) simultaneously; and (ii) at all other times during Business
Hours, one of such Tenant's Dumpster Locations shall remain vacant, Landlord
hereby reserving the right to permit others to use such vacant Tenant's Dumpster
Location for normal Building deliveries. Tenant shall coordinate its use of the
Tenant's Dumpster Locations with such Building deliveries during Business Hours,
as reasonably directed by Landlord's Construction Representative.
C. All deliveries (whether incoming or outgoing) may be subject
to reasonable inspection.
9. TRASH DISPOSAL; GARBAGE
A. All construction and related debris, trash and garbage shall
be disposed of only in Tenant's dumpsters as provided in Section 8 above. Tenant
shall be responsible for pest and vermin control arising out of or caused by the
performance of Tenant's Work and/or the disposal of such debris, trash and
garbage.
B. Portable trash containers shall be stored by Tenant's
contractors in the portions of the Premises where Tenant is performing Tenant's
Work.
10. HVAC
A. At Tenant's request, Landlord shall, at its expense during
Business Hours, provide heat and air conditioning to the portions of the
Premises in which Tenant's Work is being performed as shall be reasonably
required for comfortable construction conditions.
B. If Tenant requires heat or air conditioning during non-
Business Hours, Tenant shall request the same by oral notice from any of
Tenant's designated representatives to Landlord (which oral notice shall
thereafter be promptly confirmed by Tenant in writing), given on before the
applicable time on Notice Days (as hereinafter defined). Tenant shall advise
Landlord in writing of the identity of Tenant's designated representatives who
shall have the authority of requesting additional heat or air-conditioning
services on behalf of Tenant. For purposes of this Section 10.B, "Notice Day"
shall be defined as follows:
(i) in the case of non-holiday weekdays, at or before
5:00 p.m. on the same day for which service is requested;
(ii) in the case of weekend service, at or before
5:00 p.m. on the Friday immediately preceding such weekend; and
66
(iii) in the case of non-weekend holidays, at or before
5:00 p.m. on the last weekday Business Day immediately preceding such holiday.
Tenant shall pay for such non-business hour heat and air-conditioning at the
rates then being charged by the applicable utility company.
C. Tenant shall install, at its expense and subject to Landlord's
prior written consent, temporary filters and/or other protective devices and
measures to ensure that the Building's heat and air-conditioning system is not
damaged by the performance of Tenant's Work.
11. ACCESS
A. All Tenant's construction employees, service vendors, vendor
service contractors, technicians, delivery personnel, messenger and construction
related personnel shall use the loading docks as the only means of ingress to
and egress from the Building (unless otherwise mutually agreed to by Landlord
and Tenant) and shall provide reasonable identification.
B. Keys required for access to the Premises shall be provided to
Tenant and Tenant's contractors.
C. Except for access to the Building loading docks during
Business Hours, access by Tenant and Tenant's contractors to any portion of the
Building shall be permitted only with security provided by Landlord. Tenant
shall pay to Landlord Landlord's then actual reasonable out-of-pocket costs to
provide such security. All construction schedules provided by Tenant or Tenant's
contractors to Landlord shall specify the portions of the Building through
which, and the times when, access is required.
12. SITE OFFICE
A. Tenant or Tenant's contractor shall construct an appropriate
site office for personnel and materials within the Premises.
B. Subject to reasonable security requirements imposed by
Landlord and causes beyond Landlord's reasonable control, access to the portions
of the Premises in which Tenant's Work may be performed hereunder and the site
office will be made available to Tenant and Tenant's contractors seven (7) days
per week, twenty-four (24) hours per day.
13. COORDINATION OF LANDLORD'S WORK AND TENANT'S WORK
The parties acknowledge that both Tenant and Landlord may be performing
work in the same areas. Therefore, the parties hereby agree to use all
reasonable efforts to coordinate the scheduling and performance of such work so
that each may prosecute such work in an efficient and timely manner.
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14. INSURANCE
A. Prior to the commencement of Tenant's Work, Tenant shall
deliver to Landlord a true copy of all insurance policies or certificates of
insurance issued in conformity with Section 14B below, for the following
insurance, which shall name Tenant as insured and (except with respect to the
workers' compensation and disability insurance, described in clause (ii) below)
Landlord, Landlord's Construction Representative, the Agent, and each ground
lessor and mortgagee named in writing to Tenant as additional insureds, and
which shall be kept in full force and effect during the term of this Agreement:
(i) commercial general liability insurance, such
insurance to be on an occurrence basis and to insure against liability for
bodily injury and death and for property damage occurring in, on or about the
Premises with respect to Tenant Work, and the performance thereof, in an amount
not less than $10,000,000 in the event of personal injury to any number of
persons or damage to property arising out of any one occurrence, such insurance
to include premises operations liability, independent contractor's coverage,
products/completed operations for at least a period of three years beyond
completion, broad-form comprehensive general liability endorsement,
cross-liability and, if any operations to which the "XCU Exclusion" would be
applicable, an endorsement that such operations are covered and the "XCU
Exclusions" have been deleted;
(ii) workers' compensation and statutory disability
providing statutory State benefits for all persons employed in connection with
Tenant's Work at or in connection with the Premises; and statutory employer's
liability; and
(iii) "all-risk" builder's risk insurance with respect to
Tenant's Work and materials stored on the Premises or in the Building, written
on a completed value, replacement cost basis. Such insurance shall be in an
amount not less than ninety percent (90%) of the actual replacement cost of
Tenant's Work and such materials, which replacement value shall be determined
from time to time, and approved by the insurers, it being agreed that no
omission on the part of a party to request any such determination shall relieve
Tenant of its obligation to have such replacement value determined as aforesaid.
Such insurance shall contain the waiver of subrogation or right for Tenant to
waive its claims against Landlord, all in accordance with Section 10.6 of the
Lease, and an endorsement stating that "permission is granted to complete and
occupy".
B. All insurance required pursuant to this Section 14 shall be
effected with insurers in a financial size category of not less than IX and with
a general policy holders ratings of not less than A-, as rated in the most
current available "Bests" insurance reports, or the then equivalent thereof,
authorized to do business in the Commonwealth of Massachusetts under valid and
enforceable policies. Such insurance shall provide that such policy shall not be
cancelled (including for non-payment of premium), allowed to lapse or modified
to reduce coverage without at least thirty (30) days' prior written notice to
each insured named therein.
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15. LANDLORD'S CONTRIBUTION
A. Subject to and in accordance with the terms of this
Section 15, Landlord shall contribute an amount ("Landlord's Contribution") of
Twenty Nine Dollars ($29.00) per square foot of Total Rentable Area of the
Premises towards the cost of Tenant's Work, inclusive of all architectural and
design costs. Up to five dollars ($5.00) per square foot of Total Rentable Area
of the Premises may be spent on architectural and engineering drawings,
construction management fees, wiring/cabling expenses and moving costs. Provided
that Tenant is not in default (beyond any applicable grace periods) under the
terms of the Lease as of the time that Tenant submits to Landlord any
Requisition (as hereinafter defined), Landlord shall pay Landlord's Contribution
to Tenant by the twentieth (20th) day of each month so long as Tenant shall have
submitted to Landlord, by the twenty-eighth (28th) day of the prior month,
applications for payment and requisitions of Tenant and Tenant's architect and
contractor(s) (using AIA requisition from G-702) for Tenant's Work performed to
date (collectively, "Requisition"). Each Requisition shall be marked "Approved
for Payment" and countersigned by Tenant and Tenant's architect and
contractor(s) and shall be accompanied by written lien waivers for the portions
of Tenant's Work paid to date and a reasonably complete description of Tenant's
Work theretofore completed.
B. Tenant shall, upon completion of Tenant's Work, provide to
Landlord a reasonably detailed statement of all costs and expenses incurred or
paid by Tenant in connection with Tenant's Work. Any unused portion of
Landlord's Contribution shall be paid to Tenant within thirty (30) days of the
submission by Tenant to Landlord of such statement.
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EXHIBIT C-1
TENANT CONSTRUCTION WORK AT ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
RULES AND REGULATIONS
1. DEFINITIONS
1.1 Building: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
1.2 Landlord's
Construction
Representative: Leggat ▇▇▇▇▇▇ Properties LLC, or such
other Construction Representative as
Landlord may designate, from time to
time.
1.3 Consultant: Any architectural, engineering or design
consultant engaged by Tenant in
connection with Tenant's Work.
1.4 Contractor: Any Contractor engaged by Tenant for the
performance of any Tenant's Work, and
any Subcontractor employed by any such
Contractor.
1.5 Plans: As defined in Section 1B of Exhibit C.
Plans must be prepared and stamped by
professionals registered in MA.
1.6 Business Hours: Monday - Friday, 8:00 AM to 6:00 PM,
holidays excluded, and on Saturdays from
9:00 A.M. to noon.
1.7 Tenant: Firepond, Inc.
1.8 Tenant's Work: Any alterations, improvements,
additions, repairs or installations in
the Building performed by or on behalf
of Tenant prior to Tenant's receipt of a
certificate of occupancy for the
Premises.
1.9 Tradesperson: Any employee (including, without
limitation, any mechanic, laborer, or
tradesperson) employed by a Contractor
performing Tenant's Work.
2. GENERAL
2.1 All Tenant's Work shall be performed in accordance with these
Rules and Regulations.
2.2 The provisions of these Rules and Regulations shall be
incorporated in all agreements governing the performance of
Tenant's Work, including, without
70
limitation, any agreements governing services to be rendered
by each Contractor and Consultant.
2.3 Except as otherwise provided in these Rules and Regulations,
all inquiries, submissions and approvals in connection with
any Tenant's Work shall be processed through Landlord's
Construction Representative.
2.4 The quality of construction will be consistent with that of a
first-class office building in suburban Boston.
3. PLANS
3.1 Review and
Approval: See Section 3 of Exhibit C.
3.2 Submission
Requirements: a. Tenant shall, at the
earliest possible time,
furnish to Landlord's
Construction Representative
three (3) sets of Plans
describing any Tenant's
Work.
b. The design manifested in
the Plans, if and to the
extent the portion of the
Premises to which such
Plans relate is visible
from the common areas or
exterior of the Building,
will be reviewed by
Landlord and shall comply
with its requirements so as
to avoid aesthetic or other
conflicts with the design
and function of the
Premises and of the
Building as a whole.
4. PRECONSTRUCTION NOTIFICATION AND APPROVALS
4.1 APPROVAL TO COMMENCE WORK
a. Tenant shall submit to Landlord's Construction
Representative, for the approval of Landlord's
Construction Representative, the names of all
prospective Contractors prior to issuing any bid
packages to such Contractors. Landlord has approved
ADP ▇▇▇▇▇▇▇▇, Inc. as Tenant's primary Contractor.
b. No Tenant's Work shall be undertaken by any
Contractor or Tradesperson unless and until all the
matters set forth in Paragraph 4.2 below have been
received for the Tenant's Work in question and
unless Landlord's Construction Representative has
approved the matters set forth in Paragraph 4.2
below.
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4.2 COMMENCEMENT OF WORK
No Tenant's Work shall be performed unless, at least one week
before any Tenant's Work is to begin, all of the following has
been provided to Landlord's Construction Representative and
approved. Landlord's Construction Representative shall respond
to any request for approval by Tenant under this Section 4.2
as promptly as possible based upon the nature of such request.
In the event that Tenant proposes to change any of the
following, Landlord's Construction Representative shall be
immediately notified of such change and such change shall be
subject to the approval of Landlord's Construction
Representative:
a. Schedule for the work, indicating start and
completion dates, material deliveries, any phasing
and special working hours, and also a list of
anticipated shutdowns of Building systems.
b. List of all Contractors and Subcontractors, including
addresses, telephone numbers, trades employed, and
the union affiliation, if any, of each Contractor and
Subcontractor.
c. Names and telephone numbers of the supervisors of the
work.
d. Copies of all necessary governmental permits,
licenses and approvals.
e. Proof of current insurance, to the limits set out in
Exhibit C-1A to these Rules and Regulations, naming
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C. and Leggat ▇▇▇▇▇▇
Properties LLC as additional insureds.
f. To the best of Tenant's knowledge, notice of the
involvement of any Contractor in any ongoing or
threatening labor dispute which affects or may affect
the Building.
g. Evidence that Tenant has made provision for either
written waivers of lien from all Contractors and
suppliers of material, or other appropriate
protective measures approved by Landlord.
h. Tenant's safety program which shall be consistent
with the Building's safety manual and requirements of
local ordinances and officials.
4.3 REPORTING INCIDENTS
All accidents, disturbances, labor disputes or threats thereof
known to Tenant or its Contractors pertaining to the Building
or Tenant's property and recordable under OSHA or the rules
and regulations promulgated thereunder, as the same may be
amended from time to time, shall be reported to Landlord's
Construction Representative on the day when such event becomes
known to Tenant or its Contractors. A written report must
follow as soon as reasonably practicable and in any event
within 72 hours.
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5. CONSTRUCTION SCHEDULE
5.1 COORDINATION
a. Tenant and its Contractors, during the performance of
Tenant's Work, shall use best efforts to minimize
discomfort, inconvenience and annoyance to the other
tenants and occupants of the Building and the public
at large.
b. If any Tenant's Work requires the shutdown of risers
and mains for electrical, mechanical, sprinkler,
plumbing work, and fire alarm, such Tenant's Work
shall be supervised by Landlord's Construction
Representative. No Tenant's Work will be performed in
the Building's mechanical or electrical equipment
rooms without both Landlord's prior approval and the
supervision of Landlord's Construction
Representative.
5.2 TIME RESTRICTIONS
a. Subject to Paragraph 5.1 of these Rules and
Regulations, general construction work will generally
be permitted at all times, including during Business
Hours.
b. To the extent Special Work, as hereinafter defined,
shall not be identified on a construction schedule
previously approved by Landlord, Tenant shall provide
Landlord's Construction Representative with at least
seventy-two (72) hours notice before proceeding with
Special Work and such Special Work will be permitted
only at times agreed to by Landlord's Construction
Representative during periods outside of Business
Hours. Landlord shall use reasonable efforts to
schedule the performance by Tenant of such Special
Work on shorter notice. "Special Work" shall be
defined as the following operations:
(1) All utility disruptions, shut offs and
turnovers;
(2) Activities involving high levels of noise,
including demolition, coring, drilling and
ramsetting;
(3) Activities resulting in excessive dust or
odors, including demolition and spray
painting; and/or
(4) Activities which would otherwise materially
adversely affect occupants of the Building.
c. If coordination, labor disputes or other
circumstances reasonably require, Landlord's
Construction Representative may change the hours
during which regular construction work can be
scheduled and/or restrict or refuse entry to and exit
from the Building by any Contractor.
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6. CONTRACTOR PERSONNEL
6.1 WORK IN HARMONY
a. All Contractors shall be responsible for employing
skilled and competent personnel and suppliers who
shall abide by the Rules and Regulations herein set
forth as amended from time to time by Landlord.
b. Tenant shall not at any time, either directly or
indirectly, employ, permit the employment, or
continue the employment of any Contractor if such
employment or continued employment will or does
interfere or cause any labor disharmony, coordination
difficulty, delay or conflict with any other
contractors engaged in construction work in or about
the Building. Landlord shall not, directly or
indirectly employ, permit the employment or continue
the employment of any contractor if such employment
or continued employment will or does interfere or
cause any labor disharmony, coordination difficulty,
delay or conflict with any Contractors engaged by
Tenant. The foregoing agreement by Landlord shall not
apply to contractors engaged by Landlord to provide
or perform services in or to the Building.
c. Should a work stoppage or other action occur anywhere
in or about the Building as a result of the presence,
anywhere in the Building, of a Contractor engaged
directly or indirectly by Tenant, or should such
Contractor be deemed by Landlord to have violated any
applicable Rules or Regulations, and if the same
shall be continuing for 24 or more hours after
Landlord has given Tenant written notice thereof,
Landlord may, without incurring any liability to
Tenant or said Contractor, require any such
Contractor to vacate the Premises and the Building,
and to cease all further construction work therein.
6.2 CONDUCT
a. While in or about the Building, all Tradespersons
shall perform in a dignified, quiet, courteous, and
professional manner at all times. Tradespersons shall
wear clothing suitable for their work and shall
remain fully attired at all times. All Contractors
will be responsible for their Tradesperson's proper
behavior and conduct.
b. The Landlord's Construction Representative reserves
the right, upon twenty-four (24) hours' written
notice to Tenant, to require the removal of any
person who, or any Contractor which, is causing a
disturbance to any tenant or occupant of the Building
or any other person using or servicing the Building
or is materially adversely interfering with the work
of others, unless such person or Contractor is
performing Tenant's Work in accordance with a
construction schedule previously approved by
Landlord.
74
6.3 ACCESS
a. Tenant shall require its Contractors to contact
Landlord's Construction Representative prior to
commencing work, to confirm work location and
Building access, including elevator usage and times
of operation. Subject to reasonable security and
scheduling requirements imposed by Landlord and
causes beyond Landlord's reasonable control, access
to the Building shall be provided to Tenant's
Contractor twenty-four (24) hours per day, seven (7)
days per week.
b. No Contractor or Tradesperson will be permitted to
enter any private or public space in the Building,
other than the common areas of the Building necessary
to give direct access to the Premises for which he
has been employed, without the prior approval of
Landlord's Construction Representative.
c. Tenant shall require its Contractors to obtain
permission from Landlord's Construction
Representative prior to undertaking work in any space
outside of the Premises. This requirement
specifically includes ceiling spaces below the
premises where any work required must be undertaken
at the convenience of the affected tenant and outside
of Business Hours. Contractors undertaking such work
shall ensure that all work, including work required
to reinstate removed items and cleaning, be completed
prior to opening of the next Business Day.
d. Contractors shall ensure that all furniture,
equipment and accessories in areas potentially
affected by any Tenant's Work shall be adequately
protected by means of drop cloths or other
appropriate measures. In addition, all Contractors
shall be responsible for maintaining security to the
extent reasonably required by Landlord's Construction
Representative.
e. Temporary access doors for tenant construction areas
connecting with a public corridor will be building
standard, i.e., door frame hardware and lockset. A
copy of the key will be furnished to Landlord's
Construction Representative.
6.4 SAFETY
a. All Contractors shall police ongoing construction
operations and activities at all times, keeping the
Premises orderly, maintaining cleanliness in and
about the Premises, and ensuring safety and
protection of all areas, including truck docks,
elevators, lobbies and all other public areas which
are used for access to the Premises.
b. All Contractors shall appoint a supervisor who shall
be responsible for all safety measures, as well as
for compliance with all applicable governmental laws,
ordinances rules and regulations such as, for
example, "OSHA" and "Right-to-Know" legislation.
75
c. Any damage caused by Tradespersons or other
Contractor employees shall be the responsibility of
Tenant. Costs for repairing such damage shall be
charged directly to Tenant.
6.5 PARKING
a. Parking is not allowed in or near truck docks, in
handicapped or fire access lanes, or any private ways
in or surrounding the property. Vehicles so parked
will be towed at the expense of Tenant.
b. The availability of parking in any parking areas of
the Building is limited. Use of such parking for
Contractors and their personnel is restricted and
must be arranged with and approved by Landlord's
Construction Representative.
7. BUILDING MATERIALS
7.1 DELIVERY
All deliveries of construction materials shall be made at the
predetermined times coordinated with Landlord's Construction
Representative and shall be effected safely and expeditiously only at
the location determined by Landlord's Construction Representative.
7.2 TRANSPORTATION IN BUILDING
a. Distribution of materials from delivery point to the
work area in the Building shall be accomplished with
the least disruption to the operation of the Building
possible. To the extent available, elevators will be
assigned for material delivery and will be controlled
by the Building management. Tenant shall be
responsible for costs in connection with the
operation of elevators as provided in Section 6 of
Exhibit C.
b. Contractors shall provide adequate protection to all
carpets, wall surfaces, doors and trim in all public
areas through which materials are transported.
Contractors shall clean all such areas daily.
Particular care shall be paid to all public areas to
avoid disruption, dangerous conditions and damage
thereto. Protective measures shall include runners
over carpet, padding in elevators and any other
measures reasonably determined by Landlord's
Construction Representative.
c. Any damage caused to the Building through the
movement of construction materials or otherwise shall
be the responsibility of Tenant. Charges for such
damage will be submitted by Landlord directly to
Tenant.
76
7.3 STORAGE AND PLACEMENT
a. All construction materials shall be stored only in
the premises where they are to be installed. No
storage of materials will be permitted in any public
areas, loading docks or corridors leading to the
premises.
b. No flammable, toxic or otherwise hazardous materials
may be brought in or about the Building unless (i)
prior notice is given to Landlord's Construction
Representative, (ii) all applicable laws, ordinances,
rules and regulations are complied with, and (iii)
all necessary permits have been obtained.
Notwithstanding the foregoing, normal construction
materials which might otherwise be considered
flammable, toxic, or hazardous may be brought into
the Building, provided that the quantities of such
materials are limited to the amount necessary to
perform Tenant's Work, and further provided that such
materials are handled by Tenant strictly in
accordance with Tenant's approved safety program. All
necessary precautions shall be taken by the
Contractor handling such materials against damage or
injury caused by such materials.
c. All materials required for the construction of the
Premises must conform with the Plans approved by
Landlord, and must be installed in the locations
shown on the drawings approved by Landlord.
d. All work shall be subject to reasonable supervision
and inspection by Landlord's Construction
Representative.
e. No material changes to approved Plans will be made
without prior knowledge and approval of Landlord's
Construction Representative.
f. All protective devices (e.g., temporary enclosures
and partitions) and materials which protect public
areas or areas occupied by other tenants, as well as
their placement, must be approved by Landlord's
Construction Representative.
g. It is the responsibility of Contractors to ensure
that the temporary placement of materials does not
impose a hazard to the Building or its occupants,
either through overloading, or interference with
Building systems, access, egress or in any other
manner whatsoever.
h. All new openings made through the floor slab for
piping, cabling, etc. must be "fire stopped" in a
manner consistent with all applicable codes and
ordinances. All holes in the floor slab at abandoned
floor outlets, etc. will be filled with solid
concrete.
7.4 SALVAGES, WASTE REMOVAL AND CLEANING
a. All rubbish, waste and debris shall be neatly and
cleanly removed from the Building by Contractors
daily unless otherwise approved by Landlord's
77
Construction Representative. The Building's trash
compactor shall not be used for construction or other
debris.
b. Toxic or flammable waste is to be properly removed
daily and disposed of in full accordance with all
applicable laws, ordinances, rules and regulations.
c. Tenant's Contractor shall, prior to removing any
existing installed item (including, without
limitation, building standard doors, frames and
hardware, light fixtures, ceiling diffusers, ceiling
exhaust fans, sprinkler heads, fire horns, ceiling
speakers and smoke detectors) from the Building,
notify Landlord's Construction Representative that it
intends to remove such item. Contractors shall use
care to limit damage in the removal of such material
and shall deliver any such items to Landlord's
Construction Representative, unless such items shall
be installed again as part of Tenant's Work. Such
items will be delivered, without cost, to an area
designated by Landlord's Construction Representative
which area shall be within the Building.
d. Tenant's Contractor shall be responsible for
maintaining the loading area, freight elevators, and
related corridors in broom clean condition when such
areas are being used by Tenant's Contractor. If such
broom clean condition is not maintained, and such
failure continues for 24 hours or more after written
notice thereof to Tenant, Landlord may do so at
Tenant's cost and expense.
8. CABLING AND WELDING
All cabling, welding and heat cutting shall be performed in accordance
with Exhibit C-1B attached hereto.
9. PAYMENT OF CONTRACTORS
Tenant shall promptly pay the cost of all Tenant's Work so that the
Premises and the Building shall be free of liens for labor or
materials. If any mechanic's lien is filed against the Building or any
part thereof which is claimed to be attributable to Tenant, its agents,
employees or contractors, Tenant shall give immediate notice of such
lien to Landlord and shall promptly discharge the same by payment or
filing any necessary bond within 20 days after Tenant has first notice
of such mechanic's lien.
10. CONTRACTORS INSURANCE
Prior to commencing any Tenant's Work, and throughout the performance
of the Tenant's Work, each Contractor shall obtain and maintain
insurance in accordance with Exhibit C-lB attached hereto. Each
Contractor shall, prior to making entry into the Building, provide
Landlord with certificates that such insurance is in full force and
effect.
78
11. SUBMISSION UPON COMPLETION
a. Upon completion of any Tenant's Work and prior to taking
occupancy, Tenant shall submit to Landlord a permanent
certificate of occupancy and final approval of any other
governmental agencies having jurisdiction.
b. A properly executed air balancing report, signed by a
professional engineer, shall be submitted to Landlord upon
completion of all mechanical work. Such report shall be
subject to Landlord's approval. If such report is not approved
by Landlord, then Tenant shall, at its cost, submit to
Landlord, for Landlord's approval, its proposal in writing of
the steps which Tenant proposes to take to remedy such
situation. Upon approval by Landlord of such proposal, Tenant
shall, at its cost, take such steps and shall resubmit for
Landlord's approval, a new air balancing report.
c. Tenant shall submit to Landlord's Construction Representative
"as-built" architectural plans on a CAD diskette and shall
submit to Landlord's Construction Representative an "as-built"
set of sepia drawings for all other design disciplines showing
all items of Tenant's Work in full detail.
d. Except to the extent there shall be a bona fide dispute
between the parties in question, Tenant shall submit a general
release for Tenant's Contractor including waivers of lien from
all contractors and suppliers of material in formats approved
by the Landlord.
79
EXHIBIT C-1A
INSURANCE REQUIREMENTS FOR CONTRACTORS
When Tenant's Work is to be done by Contractors in the Building, Tenant
shall be responsible for including in the contract for such work the following
insurance and indemnity requirements to the extent that they are applicable.
Insurance certificates must be received prior to construction. Landlord's
Construction Representative and Leggat ▇▇▇▇▇▇ Properties LLC shall be named as
additional insured parties on all certificates.
Each Contractor and each Subcontractor shall, until the completion of
the Tenant's Work in question, procure and maintain at its expense, the
following insurance coverages with companies acceptable to Landlord in the
following MINIMUM limits:
WORKERS' COMPENSATION
(including coverage for Occupational Disease)
LIMIT OF LIABILITY
Workers' Compensation Statutory Benefits
Employer's Liability $500,000
COMMERCIAL GENERAL LIABILITY
(including Contractual Liability assumed by the
Contractor and the Tenant under Section 10.2 of the Lease)
LIMIT OF LIABILITY
Bodily Injury and Property Damage $2,000,000 annual general
aggregate per location
COMPREHENSIVE AUTOMOBILE LIABILITY
(including coverage for Hired and Non-owned Automobiles)
LIMIT OF LIABILITY
Bodily Injury and Property Damage $1,000,000 per occurrence
Without limiting the foregoing, Tenant's General Contractor shall also
procure and maintain at its expense an umbrella liability insurance policy with
a minimum limit of liability of $5,000,000 annual general aggregate. Such
umbrella policy shall name Landlord's Construction Representative and Leggat
▇▇▇▇▇▇ Properties LLC as additional insured parties and shall be evidenced by an
insurance certificate delivered to Landlord prior to construction.
80
EXHIBIT C-1B
CABLING, WELDING AND HEAT CUTTING
1. Installation of Cables
1.1 Computer and Telephone Cables
1.1.1 LAYOUT
A layout of cables must be submitted to Landlord's
Construction Representative for
approval prior to installation.
1.1.2 INSTALLATION
a. Cables installed above the ceiling must be teflon
coated or encased in metal conduit.
b. Cables must be tagged and/or color coded.
c. Cables must be properly affixed to the framing above
the duct work so that they are self-supporting. Do
not fasten to light fixtures.
d. Cables must not sag and will be installed in the
shortest possible runs.
e. Connections (connectors, splices, etc.) must be
securely installed so that they will not pull apart
if cable is accidentally touched or pulled.
1.2 ELECTRICAL FLOOR OUTLET CABLES
1.2.1 LAYOUT
A layout of cables must be submitted to Landlord's
Construction Representative for
approval prior to installation.
1.2.2 INSTALLATION
a. Cables must be tagged and/or color coded.
b. Runs will be as short and as free of slack
as possible.
c. Cables are to be installed in Tenant's own
ceiling then down partitions into the
ceiling of the tenant below.
d. Cables must be properly secured so that they
are self-supporting.
e. All connections (connectors, splices,
etc.) must be located in Tenant's own
space to avoid damage from below.
81
f. Cables must be secured with clamps where
they pass through the floor to prevent
connections from separating.
g. Where feasible, install cables above duct
work and other materials in the ceiling.
2. WELDING AND HEAT CUTTING WORK
2.1 Welding and heat cutting activities as well as soldering and
brazing shall be included in the "Special Work" category as
defined in Paragraph 5.2(b) of the Construction Rules and
Regulations. To the extent such Special Work shall not be
identified on a construction schedule previously approved by
Landlord, Tenant shall provide Landlord's Construction
Representative with at least seventy-two (72) hours notice
before proceeding and must be performed during periods outside
of regular Business Hours. Landlord shall use reasonable
efforts to schedule the performance by Tenant of such Special
Work on shorter notice.
2.1.1 PERMITTING
The Contractor must obtain a permit from Landlord's
Construction Representative before commencing work. See sample
permit attached.
2.2 PRECAUTIONS
Because welding and other hot work is a fire hazard, the
Contractor must observe the following precautions and
procedures:
a) Sprinklers should be in service while work is underway.
b) Smoke detectors in the work area should be
de-activated by Landlord's Construction
Representative for the duration of the work.
Landlord's Construction Representative will
re-activate smoke detectors when the work is
complete.
c) Combustible materials shall be located at least 35
feet from hot work operations and shall be covered
with non-combustible materials.
d) All flammable liquids and other hazards must be removed.
e) All floor and wall openings must be covered with
non-combustible material.
f) Containers, tanks, ducts, etc. must be cleaned and
purged of flammable vapors, liquids, dusts, etc.
g) A minimum of one multi-purpose 4A-2OBC rated portable
fire extinguisher must be provided within 10 ft. of the
work area. The extinguisher should be fully charged and
have been properly serviced
82
within the last year. It is the responsibility of the
Contractor to provide fire extinguishers. Building
extinguishers should not be used.
h) A fire watch should be maintained on the floor levels
where the work was conducted plus, if and to the extent
exposed, the next two floors below for at least one half
hour after welding or burning has ceased. If there is a
chance that slag could enter into a utility or elevator
shaft, then the fire watch should cover the base of the
shaft as well as the intermediate floors.
83
WELDING AND BURNING PERMIT
(Work is not permitted unless this
card is filled in and posted
in work area.)
DATE (of work)___________________________________________________________, 19__
BUILDING ______________________________________________________________________
TENANT ______________________________________ FLOOR ___________________________
CONTRACTOR ____________________________________________________________________
WORK TO BE DONE _______________________________________________________________
SPECIAL PRECAUTIONS ___________________________________________________________
FIRE WATCH REQUIRED ON LEVELS: ______, ______, _______, _______, _______, _____
Permission is granted for this work provided that the necessary precautions are
taken (see back of permit)
PERMIT EXPIRES ________________________________________________________________
SIGNED ________________________________________________________________________
PROPERTY MANAGER
TIME STARTED ____________________________ COMPLETED ___________________________
LOCATION OF NEAREST FIRE PULL STATION _________________________________________
EMERGENCY PHONE NUMBERS: FIRE DEPARTMENT ____________________________
PROPERTY MANAGER ___________________________
FINAL CHECK-UP
Work area and all adjacent areas where sparks might have spread were inspected
for at least 30 minutes after the work was completed and no fire conditions were
noted.
CONTRACTOR ____________________________________________________________________
PROPERTY MANAGER ______________________________________________________________
84
EXHIBIT D
Firepond, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
_____________________, 1999
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
c/o Leggat ▇▇▇▇▇▇ Properties LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Firepond, Inc.
[Premises Rentable Area on the Third Floor]
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
Ladies and Gentlemen:
Reference is made to that certain Lease, dated as of _____, 1999,
between ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., as Landlord and Firepond, Inc., as Tenant,
with respect to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇. In accordance with
EXHIBIT C of the Lease, this is to confirm that the "Plans" referred to in
Section 3(a) of EXHIBIT C of the Lease, this is to confirm that the "Plans"
referred to in Section 3(a) of EXHIBIT C are those plans and specifications
prepared by __________, and described as follows:
DATE TITLE #PAGES
---- ----- ------
85
If the foregoing is in accordance with your understanding, would you
kindly execute this letter in the space provided below, and return the same to
us for execution by Landlord, whereupon it will become a binding agreement
between us.
Very truly yours,
FIREPOND, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
Accepted and Agreed:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇.
By: Winter Street OpCo, L.L.C., its managing member
By: Leggat ▇▇▇▇▇▇ Opportunity Investors, LLC,
its managing member
By: LM Opportunity Principals LLC,
its managing member
By: ____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Member
86
EXHIBIT E
OPERATING EXPENSES
Without limitation, and subject to the percentage allocation set forth
in Section 9.1, Operating Expenses shall include:
1. All expenses incurred by Landlord, Landlord's agents or
Landlord's affiliates which shall be directly related to employment of
personnel, including amounts incurred for wages, salaries and other compensation
for services, payroll, social security, unemployment and similar taxes,
workmen's compensation insurance, disability benefits, pensions,
hospitalization, retirement plans and group insurance, uniforms and working
clothes and the cleaning thereof, and expenses imposed on Landlord, Landlord's
agents, or Landlord's affiliates pursuant to any collective bargaining agreement
for the services of employees of Landlord or Landlord's agents in connection
with the operation, repair, maintenance, cleaning, management and protection of
the Property and the Site, and its mechanical systems including, without
limitation, day and night supervisors, property manager, accountants,
bookkeepers, janitors, carpenters, engineers, mechanics, electricians and
plumbers and personnel engaged in supervision of any of the persons mentioned
above; provided that, if any such employee is also employed on other property of
Landlord or Landlord's affiliates, such compensation shall be suitably prorated
among the Property and such other properties.
2. The cost of services, utilities (other than the electricity
furnished to the Premises pursuant to Section 7.5), materials and supplies
(including taxes thereon) furnished or used in the operation, repair,
maintenance, cleaning, management and protection of the Property and the Site,
including without limitation fees, if any, imposed upon Landlord or Landlord's
affiliates, or charged to the Property and/or the Site, by the state or
municipality in which the Property is located on account of the need for
increased or augmented public safety services and including, without limitation,
the provision of the following services: cleaning and janitorial services to the
Premises on Business Days, exterior window cleaning, water, elevator service,
exterior maintenance, security, heating, ventilation and air-conditioning and
utilities, including Base Building electricity.
3. The cost of replacements for tools and other similar equipment
used in the repair, maintenance, cleaning and protection of the Property or the
Site, provided that, in the case of any such equipment used jointly on other
property of Landlord or Landlord's affiliates, such costs shall be suitably
prorated among the Property and such other properties.
4. Where the Property is managed by Landlord or an affiliate of
Landlord, a sum equal to the amounts customarily charged by management firms in
the Suburban Route 128/Wellesley-Waltham area for similar properties, but in no
event more than two and one-half percent (2.5%) of gross annual income, whether
or not actually paid, or where managed by other than Landlord or an affiliate
thereof, the amounts accrued for management, together with, in either case,
amounts accrued for legal and other professional fees relating to the Property
and the Site, but excluding such fees and commissions paid in connection with
services rendered for securing, preparing, or renewing leases or litigating
disputes and for matters not related to the normal administration and operation
of the Property.
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5. Premiums for insurance against damage or loss to the Building
form such hazards as shall from time to time be generally required by
institutional mortgagees in the Suburban Route 128/Wellesley-Waltham area for
similar properties, including, but not by way of limitation, insurance covering
loss of rent attributable to any such hazards, and general liability insurance.
6. If, during the Lease Term, Landlord or Landlord's affiliates
shall make a capital expenditure either (1) for the reasonably intended purpose
of reducing Operating Expenses undertaken in good faith by Landlord based upon
engineering or other information available to Landlord, upon which Landlord
could reasonably conclude that the cost of such capital improvement(s)
thereafter will, within a reasonable time, result in a reduction of Operating
Expenses equal to or greater than the cost of such capital improvements, whether
or not such a reduction does in fact occur, or (2) pursuant to a requirement of
law, ordinance, order, rule or regulation of any public authority having
jurisdiction or a mandatory (I.E., the failure to comply with any such
requirement will result in the refusal of reputable insurers to issue any policy
which Landlord is obligated to carry pursuant to this Lease or at other than
commercially reasonable rates) requirement of any insurance carrier or insurance
rating organization board, the total cost of which is not properly includable in
Operating Expenses for the Operating Year in which it was made, there shall
nevertheless be included in such Operating Expenses for the Operating Year in
which it was made and in Operating Expenses for each succeeding Operating Year
the annual charge-off of such capital expenditure. Annual charge-off shall be
determined by dividing the original capital expenditure plus an interest factor,
reasonably determined by Landlord, as being the interest rate then being charged
for long-term mortgages by institutional lenders on like properties within the
locality in which the Building is located, by the number of years of useful life
of the capital expenditure; and the useful life shall be determined reasonably
by Landlord in accordance with generally accepted accounting principles and
practices in effect at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other
utilities supplied to the Property and not paid for directly (i.e., other than
by escalation payments) by tenants.
8. Betterment assessments provided the same are apportioned
equally over the longest period permitted by law.
9. Amounts paid to independent contractors for services,
materials and supplies furnished for the operation, repair, maintenance,
cleaning and protection of the Property and the Site.
The following costs and expenses shall be excluded from Operating
Expenses:
1. Costs incurred in connection with the construction of the
original Building improvements, except to the extent such costs are capital
expenditures which will be amortized pursuant to Paragraph 6 above.
2. The cost of defects in the construction, design or equipping
of the Building which are wholly covered by a warranty or guaranty then in
effect from the contractor or supplier responsible for such defect.
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3. Costs incurred in connection with the making of repairs which
are the obligation of another tenant in the Building.
4. Interest, fines or penalties for any late payments by Landlord
not due to the act or neglect of Tenant or its agent.
5. Legal fees incurred in connection with Landlord's
noncompliance or violation of law.
6. Costs of repairs, replacements or other work occasioned by
fire, windstorm or other casualty, or the exercise by governmental authorities
of the right of eminent domain.
7. Leasing commissions, attorney's fees, costs, disbursements and
other expenses incurred by Landlord or its agents in connection with
negotiations for leases with tenants, other occupants or prospective tenants or
other occupants of the Building, and similar costs incurred in connection with
disputes with and/or enforcement of any leases with tenants, other occupants, or
prospective tenants or other occupants of the Building.
8. "Tenant allowances", "tenant concessions", workletters, and
other costs or expenses (including permit, license and inspection fees) incurred
in completing, fixturing, furnishing, renovating or otherwise improving,
decorating or redecorating space for tenants or other occupants of the Building,
or vacant, leaseable space in the Building, including space planning/interior
architecture fees for same.
9. Costs of correcting defects, including any allowances for
same, in construction of the Building (including latent defects) or equipment
used therein (or the replacement of defective equipment), any associated parking
facilities, or other improvements, or in the equipment used therein of which
Landlord has been given notice by any tenant within two years of the
Commencement Date.
10. Depreciation, other "non-cash" expense items or amortization,
except for amortization charges as provided for in inclusion item 6 above.
11. Costs of a capital nature, except as provided for in inclusion
item 6 above, including, but not limited to, capital additions, capital
improvements, capital repairs, capital maintenance, capital alterations, capital
replacements, capital equipment and capital tools, and/or capital redesign, all
in accordance with generally accepted accounting principles, consistently
applied.
12. Costs in connection with services (including electricity),
items or other benefits of a type which are not standard for the Building and
which are not available to Tenant without specific charge therefor, but which
are provided to another tenant or occupant of the Building, whether or not such
other tenant or occupant is specifically charged therefor by Landlord.
13. Services, items and benefits for which Tenant or any other
tenant or occupant of the Building specifically reimburses Landlord or for which
Tenant or any other tenant or occupant of the Building pays third persons.
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14. Costs or expenses (including fines, penalties and legal fees)
incurred due to the violation by Landlord, its employees, agents and/or
contractors, any tenant (other than Tenant) or other occupant of the Building,
of any terms and conditions (other than by Tenant) of this Lease or of the
leases of other tenants in the Building, and/or any valid, applicable laws,
rules, regulations and codes of any federal, state, county, municipal or other
governmental authority having jurisdiction over the Property that would not have
been incurred but for such violation by Landlord, its employees, agents, and/or
contractors, it being intended that each party shall be responsible for the
costs resulting from its own violation of such leases and laws, rules,
regulations and codes as same shall pertain to the Property.
15. Penalties for late payment by Landlord, including, without
limitation, taxes, equipment leases, etc.
16. Costs directly resulting from the gross negligence or willful
misconduct of Landlord, its employees, agents and/or contractors.
17. Payments in respect of overhead and/or profit to any
subsidiary or Affiliate (hereinafter defined) of Landlord as a result of a
non-competitive selection process for services (other than the management fee)
on or to the Property, or for goods, supplies or other materials, to the extent
that the costs of such services, goods, supplies and/or materials exceed the
costs that would have been paid had the services, goods, supplies or materials
been provided by parties unaffiliated with Landlord of similar skill, competence
and experience, on a competitive basis.
18. Payments of principal, finance charges or interest on debt or
amortization on any mortgage, deed of trust or other debt, and rental payments
(or increases in same) under any ground or underlying lease or leases (except to
the extent the same may be made to pay or reimburse, or may be measured by, real
estate taxes).
19. Taxes payable by Landlord other than Taxes.
20. Real estate taxes allocable to the leasehold improvements of
other tenants or occupants of the Building.
21. Except for the management fee, costs of Landlord's general
overhead and general administrative expenses (individual, partnership or
corporate, as the case may be), which costs would not be chargeable as an
operating expense in accordance with generally accepted accounting principles,
consistently applied.
22. Rentals and other related expenses, if any, incurred in
leasing air conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature, except equipment which is used in
providing janitorial services and which is not affixed to the Building.
23. Costs incurred in installing, operating, maintaining and
owning any specialty items or services not normally installed, operated and
maintained in buildings comparable to the Building and not necessary for
Landlord's operation, repair and maintenance of, and the providing of required
services for, the Building and/or any associated parking facilities, including,
but not limited to, an observatory, beacon(s), broadcasting facilities (other
than the Building's music system, and life support and security systems),
helicopter pad, promotions, and
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displays, but specifically excluding costs incurred in installing, operating,
maintaining and owning the cafeteria, the fitness center and related shower and
locker facilities, the shared use conference center, the concierge, the kiosk
and any other amenities normally found in comparable office buildings in the
Waltham area.
24. Advertising and promotional expenses incurred in connection
with leasing of rentable areas in the Building.
25. Costs or expenses for sculpture, paintings or other works of
art, including costs incurred with respect to the purchase, ownership, showing,
promotion, and/or securing of same.
26. Costs for which Landlord is compensated or reimbursed by
insurance or other means of recovery to the extent the proceeds are compensation
for expenses which previously were included in Operating Expenses for the years
in which such proceeds were received.
27 Costs of correcting or repairing defects in the Building
and/or any associated parking facilities, and/or equipment or the replacement of
defective equipment to the extent that such costs are reimbursed under
warranties of manufacturers, suppliers or contractors, or are otherwise borne by
parties other than Landlord.
28. Costs of restoration or repair of the Building as a result of
total or partial destruction or condemnation thereof.
29. Contributions to operating expense reserves.
30. Contributions to charitable organizations.
31. Costs incurred in removing the property of former tenants
and/or other occupants of the Building.
32. Rental and any other expenses, including wages, salaries and
benefits, and adjustments thereto, for Landlord's leasing offices.
33. Consulting costs and expenses incurred by Landlord except to
the extent same relate exclusively to the improved management or operation of
the Building.
34. The costs of any "tap fees" or one-time lump sum sewer or
water connection fees for the Building.
35. Costs or fees relating to the defense of Landlord's title to
or interest in the Property, or any part thereof.
36. Any other expense which, under generally accepted accounting
principles, consistently applied, would not be considered to be a normal
maintenance or operating expense of the Building.
The term "Affiliate" shall mean and refer to any person or entity controlling,
controlled by, or under common control with another such person or entity.
"Control", as used herein, shall mean
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the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such controlled person or entity;
the ownership, directly or indirectly, of at least fifty-one percent (51%) of
the voting securities of, or possession of the right to vote, in the ordinary
direction of its affairs, at least fifty-one percent (51%) of the voting
interest in, any person or entity shall be presumed to constitute such control.
In the case of Landlord, the term Affiliate shall include any person or entity
controlling or controlled by or under common control with any managing member of
Landlord or any managing member of Landlord's managing member.
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EXHIBIT F
RULES AND REGULATIONS
I. The following regulations are generally applicable:
1. The public sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant (except as necessary for deliveries) or used for any purpose other
than ingress and egress to and from the Premises.
2. No awnings, curtains, blinds shades, screens or other
projections shall be attached to or hung in, or used in connection with, any
window of the Premises or any outside wall of the Building. Such awnings,
curtains, blinds, shades, screens or other projections must be of a quality,
type, design and color, and attached in the manner, approved by Landlord.
3. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor places in the halls,
corridors or vestibules.
4. The water and wash closets and other plumbing fixtures shall
not be used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or like substances shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by the Tenant.
5. Tenant shall not use the Premises or any part thereof, or
permit the Premises or any part thereof to be used, for manufacturing. Tenant
shall not use the Premises or any part thereof or permit the Premises or any
part thereof to be used as a public employment bureau or for the sale of
property of any kind at auction, except in connection with Tenant's business.
6. Tenant must, upon the termination of its tenancy, restore to
the Landlord all locks, cylinders and keys to offices and toilet rooms of the
Premises.
7. The Landlord reserves the right to exclude from the Building
between the hours of 6 p.m. and 8 a.m. and at all hours on Sunday and holidays
all persons connected with or calling upon the Tenant who do not present a pass
to the Building signed by the Tenant. Tenant shall be responsible for all
persons for whom it issues any such pass and shall be liable to the Landlord for
all wrongful acts of such persons.
8. The requirements of Tenant will be attended to only upon
application at the Building Superintendent's Office. Employees of Landlord shall
not perform any work or do anything outside of their regular duties, unless
under special instructions from the office of the Landlord.
9. There shall not be used in any space, or in the public halls
of the Building, either by Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
10. No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the Premises.
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11. No Tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
building or premises or those having business with them whether by use of any
musical instrument, radio, talking machine, unmusical noise, whistling, singing,
or in any other way. No Tenant shall throw anything out of the doors, windows or
skylights or down the passageways.
12. The Premises shall not be used for lodging or sleeping or for
any immoral or illegal purpose.
13. No smoking shall be permitted in the Premises or the Building.
Smoking shall only be permitted in smoking areas outside of the Building which
have been designated by the Landlord.
14. Tenants shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by closing draperies when sun's rays fall
directly on windows of Premises.
15. Landlord shall have the right, exercisable without notice and
without liability to any tenant, to change the name of the Building.
16. Any person desiring to use the health and fitness facility
shall first execute and deliver to the Landlord a liability waiver form prepared
by the Landlord.
II. The following regulations are applicable to any additions, Alterations
or improvements being undertaken by or for Tenant in the Premises:
A. GENERAL
1. All Alterations to be made by Tenant in, to or about the
Premises shall be made in accordance with the requirements of this Exhibit and
by contractors or mechanics approved by Landlord.
2. Tenant shall, prior to the commencement of any work, submit
for Landlord's written approval, complete plans for the Alterations. Drawings
are to be complete with full details and specifications for all of the
Alterations.
3. Alterations must comply with the Building Code applicable to
the Property and the requirements, rules and regulations and any other
governmental agencies having jurisdiction.
4. No work shall be permitted to commence without the Landlord
being furnished with a valid permit and all other necessary approvals from
agencies having jurisdiction.
5. All demolition, removals or other categories of work that may
inconvenience other tenants or disturb Building operations, must be scheduled
and performed before or after normal Business Hours and Tenant shall provide the
Building manager with at least 24 hours' notice prior to proceeding with such
work.
6. All inquiries, submissions, approvals and all other matters
shall be processed through the Building manager.
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B. PRIOR TO COMMENCEMENT OF WORK
1. Tenant shall submit to the Building manager a request to
perform the work. The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors
for Landlord's approval.
(ii) Four complete sets of plans and specifications
properly stamped by a registered architect or
professional engineer.
(iii) A properly executed building permit application form.
(iv) Four executed copies of the Insurance Requirements
agreement in the form attached to these Tenant's Work
Requirements as EXHIBIT G from Tenant's contractor
and if requested by Landlord from the contractor's
subcontractors.
(v) Contractor's and subcontractor's insurance
certificates including an indemnity in accordance
with the Insurance Requirements agreement.
2. Landlord will return the following to Tenant:
(i) Two sets of plans approved or a disapproval with
specific comments as to the reasons therefor (such
approval or comments shall not constitute a waiver of
approval of governmental agencies).
(ii) Two fully executed copies of the Insurance
Requirements agreement.
3. Tenant shall obtain a building permit from the Building
Department and necessary permits from other governmental agencies. Tenant shall
be responsible for keeping current all permits. Tenant shall submit copies of
all approved plans and permits to Landlord and shall post the original permit on
the Premises prior to the commencement of any work. All work, if performed by a
contractor or subcontractor, shall be subject to reasonable supervision and
inspection by Landlord's Construction Representative. Such supervision and
inspection shall be at Tenant's sole expense and Tenant shall pay Landlord's
reasonable charges for such supervision and inspection.
C. REQUIREMENTS AND PROCEDURES
1. All structural and floor loading requirements shall be subject
to the prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers and all mechanical and electrical work shall be performed
by contractors who are engaged by Landlord in constructing the Building. When
necessary, Landlord will require engineering and shop
95
drawings, which drawings must be approved by Landlord before work is started.
Drawings are to be prepared by Tenant and all approvals shall be obtained by
Tenant.
3. Elevator service for construction work shall be charged to
Tenant at standard Building rates. Prior arrangements for elevator use shall be
made with Building manager by Tenant. No material or equipment shall be carried
under or on top of elevators. If an operating engineer is required by any union
regulations, such engineer shall be paid for by Tenant.
4. If shutdown of risers and mains for electrical, HVAC,
sprinkler and plumbing work is required, such work shall be supervised by
Landlord's Construction Representative. No work will be performed in Building
mechanical equipment rooms without Landlord's approval and under Landlord's
supervision.
5. Tenant's contractor shall:
(i) have a superintendent or ▇▇▇▇▇▇▇ on the Premises at
all times;
(ii) police the job at all times, continually keeping the
Premises orderly;
(iii) maintain cleanliness and protection of all areas,
including elevators and lobbies.
(iv) protect the front and top of all peripheral HVAC
units and thoroughly clean them at the completion of
work:
(v) block off supply and return grills, diffusers and
ducts to keep dust from entering into the Building
air conditioning system; and
(vi) avoid the disturbance of other tenants.
6. If Tenant's contractor is negligent in any of its
responsibilities, Tenant shall be charged for corrective work.
7. All equipment and installations must be equal to the standards
generally in effect with respect to the remainder of the Building. Any deviation
from such standards will be permitted only if indicated or specified on the
plans and specifications and approved by Landlord.
8. A properly executed air balancing report signed by a
professional engineer shall be submitted to Landlord upon the completion of all
HVAC work.
9. Upon completion of the Alterations, Tenant shall submit to
Landlord a permanent certificate of occupancy and final approval by the other
governmental agencies having jurisdiction.
10. Tenant shall submit to Landlord a final "as-built" set of
drawings showing all items of the Alterations in full detail.
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11. Additional and differing provisions in the Lease, if any, will
be applicable and will take precedence.
III. The following regulations shall be effective with respect to any plans
or specifications that Tenant is required to prepare under the Lease:
Whenever Tenant shall be required by the terms of the Lease to submit
plans to Landlord in connection with any improvement or Alteration to the
Premises, such plans shall include at least the following:
1. Floor plan indicating location of partitions and doors
(details required of partition and door types).
2. Location of standard electrical convenience outlets and
telephone outlets.
3. Location and details of special electrical outlets; E.G.,
photocopiers, etc.
4. Reflected ceiling plan showing layout of standard ceiling and
lighting fixtures. Partitions to be shown lightly with
switches located indicating fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting
fixtures, speakers, etc.
6. Location and specifications of floor covering, paint or
paneling with paint colors referenced to standard color
system.
7. Finish schedule plan indicating wall covering, paint, or
paneling with paint colors referenced to standard color
system.
8. Details and specifications of special millwork, glass
partitions, rolling doors and grilles, blackboards, shelves,
etc.
9. Hardware schedule indicating door number keyed to plan, size,
hardware required including butts, latchsets or locksets,
closures, stops, and any special items such as thresholds,
soundproofing, etc. Keying schedule is required.
10. Verified dimensions of all built-in equipment (file cabinets,
lockers, plan files, etc.)
11. Location and weights of storage files.
12. Location of any special soundproofing requirements.
13. Location and details of special floor areas exceeding 50
pounds of live load per square foot.
14. All structural, mechanical, plumbing and electrical drawings,
to be prepared by the base building consulting engineers,
necessary to complete the Premises in accordance with Tenant's
plans.
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15. All drawings to be uniform size (30' x 46') and shall
incorporate the standard project electrical and plumbing
symbols and be at a scale of 1/8" = 1' or larger.
16. All drawings shall be stamped by an architect (or, where
applicable, an engineer) licensed in the jurisdiction in which
the Property is located and without limiting the foregoing,
shall be sufficient in all respects for submission to
applicable governmental authorities in connection with a
building permit application.
17 Landlord's approval of the plans, drawings, specifications or
other submissions in respect of any work, addition, Alteration
or improvement to be undertaken by or on behalf of Tenant
shall create no liability or responsibility on the part of
Landlord for their completeness, design sufficiency or
compliance with requirements of any applicable laws, rules or
regulations of any governmental or quasi-governmental agency,
board or authority.
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EXHIBIT G
CONTRACTOR'S INSURANCE
Building: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
Tenant: Firepond. Inc.
Premises: __________ Rentable Square Feet of Space on the Third Floor of the
Building.
The undersigned contractor or subcontractor ("Contractor") has been hired by the
tenant or occupant (hereinafter called "Tenant") of the Building named above or
by Tenant's contractor to perform certain work ("Tenant's Work") for Tenant in
the Premises identified above. Contractor and Tenant have requested the
undersigned landlord ("Landlord") to grant Contractor access to the Building and
its facilities in connection with the performance of the Work and Landlord
agrees to grant such access to Contractor upon and subject to the following
terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord,
Landlord's affiliates and their respective officers, employees, agents, members
and partners and each of them, from and with respect to any claims, demands,
suits, liabilities, losses and expenses, including reasonable attorneys' fees,
arising out of or in connection with the Work (and/or imposed by law upon any or
all of them) because of personal injuries, bodily injury (including death at any
time resulting therefrom) and loss of or damage to property, including
consequential damages, whether such injuries to person or property are claimed
to be due to negligence of the Contractor, Tenant, Landlord or any other party
entitled to be indemnified as aforesaid except to the extent specifically
prohibited by law (and any such prohibition shall not void this Agreement but
shall be applied only to the minimum extent required by law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation (including coverage for Occupational Disease)
and Employers Liability Insurance covering each and every ▇▇▇▇▇▇▇ employed in,
about or upon the Work, as provided for in each and every statute applicable to
Workmen's Compensation and Employers' Liability Insurance.
(b) Comprehensive General Liability Insurance including coverages for
Protective and Contractual liability (to specifically include coverage for the
indemnification clause of this Agreement) for not less than the following
limits:
Personal Injury:
$3,000,000 per person
$5,000,000 per
occurrence
Property Damage:
$3,000,000 per occurrence / $3,000,000 aggregate
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(c) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the Work)
for not less than the following limits:
Bodily Injury:
$1,000,000 per person
$1.000,000 per occurrence
Property Damage:
$1,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that it has
compiled with the above requirements regarding insurance and providing that the
insurer will give Landlord ten (10) days' prior written notice of the
cancellation, modification or expiration of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in
the Work to provide the following insurance:
(a) Comprehensive General Liability Insurance including
Protective and Contractual Liability coverages with
limits of liability at least equal to the limits
stated in paragraph 2(b).
(b) Comprehensive Automobile Liability Insurance
(covering all owned, non-owned and/or hired motor
vehicles to be used in connection with the Work) with
limits of liability at least equal to the limits
stated in paragraph 2(c).
[Remainder of Page Left Blank Intentionally]
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Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this ___ day of __________ 19__.
LANDLORD: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. L.L.C.
By: Winter Street OpCo, L.L.C., its managing member
By: Leggat ▇▇▇▇▇▇ Opportunity Investors, LLC,
its managing member
By: LM Opportunity Principals LLC,
its managing member
By: ____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Member
CONTRACTOR: ________________________________
By: ______________________________
Name:_____________________________
Title:____________________________
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EXHIBIT H
FORM OF
SUBORDINATION. NON-DISTURBANCE AND ATTORNMENT AGREEMENT
[Attach form approved by Fleet National Bank]
102
EXHIBIT H
LEASE SUBORDINATION, NON-DISTURBANCE
OF POSSESSION AND ATTORNMENT AGREEMENT
This agreement ("Lease Subordination, Non-Disturbance of Possession and
Attornment Agreement" or "Agreement") is made as of the ____ day of ___________
1998, among Fleet National Bank, a national banking association having a place
of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as agent under a
Construction and Interim Loan Agreement dated as of February 10, 1998 ("Loan
Agreement") among Borrower, Fleet National Bank, and the other lending
institutions which are listed on Schedule 1 annexed to the Loan Agreement (Fleet
National Bank and the other lending institutions which are listed on Schedule 1
annexed to the Loan Agreement are hereinafter collectively referred to as
"Lenders" and individually as "Lender") and Fleet National Bank. as agent
("Agent": which term shall include, if applicable, any other party substituted
for Fleet National Bank as "Agent" under the Loan Agreement), ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇.
L.L.C., a Delaware limited liability company having a place of business at ▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Landlord" or "Borrower"), and
_______________, a ___________________ having a place of business at
_________________ ("Tenant").
INTRODUCTORY PROVISIONS
A. Agent is relying on this Agreement as an inducement to Agent
in making and maintaining a loan ("Loan") secured by, among other things, a
Mortgage and Security Agreement dated as of February 10, 1998 ("Mortgage") given
by Borrower covering property commonly known as and numbered ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ("Property") which Mortgage, including a legal
description of the Property shall be recorded simultaneously herewith. Agent is
also the "Assignee" under an Assignment of Leases and Rents ("Assignment") dated
as of February 10, 1998, from Borrower with respect to the Property which
Assignment shall be recorded simultaneously herewith.
B. Tenant is the tenant under that certain lease ("Lease")
dated _______________, 1998, made with Landlord, covering certain premises
("Premises") at the Property as more particularly described in the Lease and in
the "Notice of Lease" dated ___________________, 1998 which shall be recorded
simultaneously herewith.
C. Agent requires, as a condition to the making and maintaining
of the Loan, that the Mortgage be and remain superior to the Lease and that its
rights under the Assignment be recognized.
D. Tenant requires as a condition to the Lease being subordinate
to the Mortgage that its rights under the Lease be recognized.
E. Agent, Landlord, and Tenant desire to confirm their
understanding with respect to the Mortgage and the Lease.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein, and other valuable consideration, the receipt
and adequacy of
103
which are hereby acknowledged, and with the understanding by Tenant that Agent
and Lenders shall rely hereon in mania and maintaining the Loan, Agent and
Lenders, Landlord, and Tenant agree as follows:
1. SUBORDINATION. The Lease and the rights of Tenant thereunder
are subordinate and inferior to the Mortgage and any amendment, renewal,
substitution, extension or replacement thereof and each advance made thereunder
as though the Mortgage, and each such amendment, renewal, substitution,
extension or replacement were executed and recorded, and the advance made,
before the execution of the Lease. Without limiting the foregoing and
notwithstanding any other term or provision of this Agreement, Tenant's rights
with respect to proceeds of insurance and of eminent domain awards are expressly
made subject and subordinate to the rights of Agent, and the disposition of such
proceeds shall be governed by Sections 14.3, 14.4 and 14.5 of the Loan
Agreement, a copy of which Sections is annexed hereto as EXHIBIT A and
incorporated by reference herein, and the other "Loan Documents" referred to
therein, in all respects.
2. NON-DISTURBANCE. So long as Tenant is not in default (beyond
any period expressed in the Lease within which Tenant may cure such default) in
the payment of rent or in the performance or observance of any of the terms,
covenants or conditions of the Lease on Tenant's part to be performed or
observed, (i) Tenant's occupancy of the Premises shall not be disturbed by Agent
in the exercise of any of its rights under the Mortgage during the term of the
Lease, or any extension or renewal thereof made in accordance with the terms of
the Lease, and (ii) Agent will not join Tenant as a party defendant in any
action or proceeding for the purpose of terminating Tenant's interest and estate
under the Lease because of any default under the Mortgage.
3. ATTORNMENT AND CERTIFICATES. In the event Agent succeeds to
the interest of Borrower as Landlord under the Lease, or if the Property or the
Premises are sold pursuant to the power of sale under the Mortgage (or by a
deed-in-lieu of foreclosure), Tenant shall attorn to Agent, or a purchaser upon
any such foreclosure sale (or deed-in-lieu), and shall recognize Agent, or such
purchaser, thereafter as the Landlord under the Lease. Such attornment shall be
effective and self-operative without the execution of any further instrument.
Tenant agrees, however, to execute and deliver at any time and from time to
time, upon the request of any holder(s) of any of the indebtedness or other
obligations secured by the Mortgage, or upon request of any such purchaser, (a)
any instrument or certificate which, in the reasonable judgment of such
holder(s), or such purchaser, may be necessary or appropriate in any such
foreclosure proceeding or otherwise to evidence such attornment, and (b) an
instrument or certificate regarding the status of the Lease, consisting of
statements, if true (and if not true, specifying in what respect), (i) that the
Lease is in full force and effect, (ii) the date through which rentals have been
paid, (iii) the duration and date of the commencement of the term of the Lease,
(iv) the nature of any amendments or modifications to the Lease, (v) that no
default, or state of facts, which with the passage of time, or notice, or both,
would constitute a default, exists on the part of Tenant or, to Tenant's
knowledge, on the part of Landlord, and (vi) the dates on which payments of
additional rent, if any, are due under the Lease.
4. LIMITATIONS. If Agent exercises any of its rights under the
Assignment or the Mortgage, or if Agent shall succeed to the interest of
Landlord under the Lease in any manner, or if any purchaser acquires the
Property, or the Premises, upon or after any foreclosure of the
104
Mortgage, or any deed in lieu thereof, Agent or such purchaser, as the case may
be, shall have the same remedies by entry, action or otherwise in the event of
any default by Tenant (beyond any period expressed in the Lease within which
Tenant may cure such default) in the payment of rent or in the performance or
observance of any of the terms, covenants and conditions of the Lease on
Tenant's part to be paid, performed or observed that the Landlord had or would
have had if Agent or such purchaser had not succeeded to the interest of the
present Landlord. From and after any such attornment, Agent or such purchaser
shall be bound to Tenant under all the terms, covenants and conditions of the
Lease, and Tenant shall, from and after such attornment to Agent, or to such
purchaser, have the same remedies against Agent, or such purchaser, for the
breach of an agreement contained in the Lease that Tenant might have had under
the Lease against Landlord, if Agent or such purchaser had not succeeded to the
interest of Landlord. PROVIDED, HOWEVER, that Agent or such purchaser shall only
be bound during the period of its ownership, and that in the case of the
exercise by Agent of its rights under the Mortgage, or the Assignment, or any
combination thereof, or a foreclosure, or deed in lieu of foreclosure, all
Tenant claims shall be satisfied only out of the interest, if any, of Agent, or
such purchaser, in the Property, including the interest, if any, of Agent or
such purchaser in any insurance proceeds, condemnation awards, rents, issues or
profits received by Agent or such purchaser on account of the Property
("Property Interests") and, notwithstanding anything to the contrary contained
in the Lease, Agent and such purchaser shall not be (a) liable for any act or
omission of any prior landlord (including the Landlord) provided, however, Agent
shall be responsible for the performance of any landlord obligations under the
Lease which are required to be performed after Agent or such purchaser succeeds
to the interest of Landlord under the Lease; or (b) subject to any offsets,
counterclaims or defenses which Tenant might have against any prior landlord
(including the Landlord); or (c) bound by any rent, percentage rent or
additional rent which Tenant might have paid for more than the then current
rental period to any prior landlord (including the Landlord); or (d) bound by
any amendment or modification of the Lease, or any consent to any assignment or
sublet, made without Agent's prior written consent; or (e) bound by or
responsible for any security deposit, tax, insurance, or other prepaid or
escrowed sums not actually received by Agent; or (f) liable for or incur any
obligation with respect to any breach of warranties or representations of any
nature under the Lease or otherwise including without limitation any warranties
or representations respecting use, compliance with zoning, landlord's title,
landlord's authority, habitability and/or fitness for any purpose, or
possession; or (g) liable for consequential damages or (h) bound to honor
expansion or purchase options under the Lease except as set forth in Section
1-2, below. Notwithstanding the foregoing, Tenant specifically acknowledges and
agrees that Agent's liability to Tenant in connection with the Lease is limited
solely to Agent's Property Interests.
5. RIGHTS RESERVED. Nothing herein contained is intended, nor
shall it be construed, to abridge or adversely affect any right or remedy of:
(a) the Landlord under the Lease, or any subsequent Landlord, against the Tenant
in the event of any default by Tenant (beyond any period expressed in the Lease
within which Tenant may cure such default) in the payment of rent or in the
performance or observance of any of the terms, covenants or conditions of the
Lease on Tenant's part to be performed or observed; or (b) the Tenant under the
Lease against any prior landlord (including the Landlord) in the event of any
default by such Landlord to pursue claims against such Landlord whether or not
such claim is barred against Agent or a subsequent purchaser.
105
6. NOTICE AND RIGHT TO CURE. Tenant agrees to provide Agent with
a copy of each notice of default given to Landlord under the Lease, at the same
time as such notice of default is given to the Landlord, and that, in the event
of any default by the Landlord under the Lease, Tenant will take no action to
terminate the Lease (a) if the default is not curable by Agent (so long as the
default does not interfere with Tenant's use and occupation of the Premises), or
(b) if the default is curable by Agent, unless the default remains uncured for a
period of thirty (30) days after written notice thereof shall have been given,
postage prepaid, to Landlord at Landlord's address, and to Agent at the address
provided in Section 7 below; PROVIDED, HOWEVER, that if any such default is such
that it reasonably cannot be cured within such thirty (30) day period, such
period shall be extended for such additional period of time as shall be
reasonably necessary (including, without limitation, a reasonable period of time
to obtain possession of the Property and to foreclose the Mortgage), if Agent
gives Tenant written notice within such thirty (30) day period of Agent's
election to undertake the cure of the default and if curative action (including,
without limitation, action to obtain possession and foreclose) is instituted
within a reasonable period of time and is thereafter diligently pursued. Unless
Agent has provided Tenant with such written notice of Agent's election to
undertake a cure of a default as provided above, Agent shall have no obligation
to cure any default under the Lease.
7. NOTICES. Any notice or communication required or permitted
hereunder shall be in writing, and shall be given or delivered: (i) by United
States mail, registered or certified, postage fully prepaid, return receipt
requested, or (ii) by recognized courier service or recognized overnight
delivery service; and in any event addressed to the party for which it is
intended at its address set forth below:
To Agent: Fleet National Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to: Goulston & Storrs, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
To Tenant: _________________________________
_________________________________
_________________________________
with a copy to: _________________________________
_________________________________
_________________________________
or such other address as such party may have previously specified by notice
given or delivered in accordance with the foregoing. Any such notice shall be
deemed to have been given and received on the date delivered or tendered for
delivery during normal business hours as herein provided.
106
8. NO ORAL CHANGE. This Agreement may not be modified orally or
in any manner than by an agreement in writing signed by the parties hereto or
their respective successors in interest.
9. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective heirs,
personal representatives, successors and assigns (including, without limitation,
holders by assignment or participation of interests in the Loan), and any
purchaser or purchasers at foreclosure of the Property or any portion thereof,
and their respective heirs, personal representatives, successors and assigns.
10. PAYMENT OF RENT TO AGENT. Tenant acknowledges that it has
notice that the Lease and the rent and all sums due thereunder have been
assigned to Agent as part of the security for the Obligations secured by the
Mortgage. In the event Agent notifies Tenant of a default under the Loan and
demands that Tenant pay its rent and all other sums due under the Lease to Agent
(the "Notification"), Tenant agrees that it will honor such demand and pay its
rent and all other sums due under the Lease to Agent, or Agent's designated
agent, until otherwise notified in writing by Agent. Borrower unconditionally
authorizes and directs Tenant to make rental payments directly to Agent
following receipt of such notice and further agrees that Tenant may rely upon
such notice without any obligation to further inquire as to whether or not any
default exists under the Mortgage or the Assignment, and that Borrower shall
have no right or claim against Tenant for or by reason of any payments of rent
or other charges made by Tenant to Agent following receipt of such notice.
Tenant and Borrower each acknowledges Agent's right to collect rents and other
sums under the Lease, as set forth above, and Agent acknowledges that from and
after the date on which Agent has provided the Notification to Tenant. Agent
shall be bound to Tenant under the terms, covenants and conditions of the Lease,
including, without limitation, the covenant to furnish building services and
otherwise operate the Property as more particularly described in the Lease.
11. NO AMENDMENT OR CANCELLATION OF LEASE. So long as the Mortgage
remains undischarged of record, except as expressly permitted by the Lease,
Tenant shall not amend, modify, cancel or terminate the Lease, or consent to an
amendment, modification, cancellation or termination of the Lease, or agree to
subordinate the Lease to any other mortgage, without Agent's prior written
consent in each instance.
12. OPTIONS. With respect to any options for additional space
provided to Tenant under the Lease, Agent agrees to recognize the same if Tenant
is entitled thereto under the Lease after the date on which Agent succeeds as
Landlord under the Lease by virtue of foreclosure or deed in lieu of foreclosure
or Agent takes possession of the Premises; PROVIDED, HOWEVER, Agent shall not be
responsible for any acts of any prior landlord under the lease, or the act of
any tenant, subtenant or other party which prevents Agent from complying with
the provisions hereof and Tenant shall have no right to cancel the Lease or to
make any claims against Agent on account thereof.
With respect to any options in the Lease or otherwise providing Tenant
with rights to purchase the Property or interests therein, such options shall be
subordinate to the Mortgage and shall not apply to any foreclosure or
deed-in-lieu of foreclosure.
107
13. CAPTIONS. Captions and headings of sections are not parts of
this Agreement and shall not be deemed to affect the meaning or construction of
any of the provisions of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in several
counterparts each of which when executed and delivered is an original, but all
of which together shall constitute one instrument.
15. GOVERNING LAW. This Agreement shall be governed by and
=construed in accordance with the laws of the Commonwealth of Massachusetts.
16. PARTIES BOUND. The provisions of this Agreement shall be
binding upon and inure to the benefit of Tenant, Agent and Lenders and Borrower
and their respective successors and assigns, PROVIDED, HOWEVER, reference to
successors and assigns of Tenant shall not constitute a consent by Landlord or
Borrower to an assignment or sublet by Tenant but has reference only to those
instances in which such consent is not required pursuant to the Lease or for
which such consent has been given.
108
IN WITNESS WHEREOF. the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
AGENT:
FLEET NATIONAL BANK,
a national banking association
By:_______________________________
Name:
Title:
Date executed by Agent:___________
TENANT:
__________________________________
a ________________________________
By: ______________________________
Name:
Title:
Date executed by Tenant:__________
ATTEST:
______________________________________
Name:
Title:
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
, ss. , 19
Then personally appeared before me a __________________________of
Fleet National Bank, a national banking association, and acknowledged the
foregoing to be his free act and deed and the free act and deed of said Fleet
National Bank.
_____________________________
Notary Public
My Commission Expires:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.C., as Landlord under the Lease, and Borrower
under the Mortgage and Security Agreement, the Loan Agreement and the other Loan
Documents, agrees for itself and its successors and assigns that:
1. The above agreement does not:
(a) constitute a waiver by Agent of any of its rights
under the Mortgage and Security Agreement or any of
the other Loan Documents; or
(b) in any way release Borrower from its obligations to
comply with the terms, provisions, conditions,
covenants and agreements and clauses of the Mortgage
and Security Agreement and other Loan Documents;
2. The provisions of the Mortgage and Security Agreement remain
in full force and effect and must be complied with by
Borrower;
3. Tenant shall have the right to rely on any notice or request
from Agent which directs Tenant to pay rent to Agent without
any obligation to inquire as to whether or not a default
exists and notwithstanding any notice from or claim of
Borrower to the contrary. Borrower shall have no right or
claim against Tenant for rent paid to Agent after Agent so
notifies Tenant to make payment of rent to Agent; and
4. The Borrower shall be bound by all of the terms, conditions
and provisions of the foregoing Agreement in all respects.
110
Executed and delivered as a sealed instrument as of the _____day of
_____,1998.
BORROWER:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. L.L.C., a
Delaware limited liability company
By: Winter Street OpCo, L.L.C.,
its Managing Member
By: Leggat ▇▇▇▇▇▇ Opportunity Investors, LLC,
its Managing Member
By: LM Opportunity Management, LLC,
its Managing Member
By: ________________________
Name:
Title:
Hereunto duly authorized
Date executed by Borrower: _____ __,1998
COMMONWEALTH OF MASSACHUSETTS
_____________, ss. _____ __,1998
Then personally appeared before me the above-named the
________________, the ____________ of LM Opportunity Management, LLC, the
Managing Member of Leggat ▇▇▇▇▇▇ Opportunity Investors, LLC, the Managing Member
of Winter Street OpCo, L.L.C., the Managing Member of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
(the Borrower described above) and acknowledged the foregoing instrument to be
such person's free act and deed and the free act and deed of such Borrower.
______________________________
Notary Public
My Commission Expires:
111
EXHIBIT A
LOAN AGREEMENT - SECTIONS 14. 3 - 14.5
14.3 PAYMENT AND APPLICATION OF INSURANCE PROCEEDS. All proceeds of
insurance shall be paid to Agent and, at Agent's option, be applied to
Borrower's Obligations or released, in whole or in part, to pay for the actual
cost of repair, restoration, rebuilding or replacement (collectively, "Cost To
Repair'"). If the Cost To Repair does not exceed $100,000.00 and no Event of
Default has occurred, Agent shall exercise its option to release so much of the
insurance proceeds as may be required for Borrower to pay for the actual Cost to
Repair in a commercially reasonable manner. If the Cost to Repair is $100,000 or
more, Agent shall also exercise its option to release so much of the insurance
proceeds as may be required to pay for the actual Cost To Repair if:
(i) in Agent's good faith judgment such proceeds
together with any additional funds as may be deposited with
and pledged to Agent are sufficient to pay for the Cost To
Repair;
(ii) in Agent's good faith the Repair Work is
likely to be completed prior to the Maturity Date; and
(iii) no Event of Default has occurred under the
Loan Documents.
14.4 CONDITIONS TO RELEASE OF INSURANCE PROCEEDS. If Agent elects
or is required to release insurance proceeds and the Cost to Repair is $100,000
or more, Agent may impose reasonable conditions on such release which shall
include, but not be limited to, the following:
14.4.1 PRIOR TO SUBSTANTIAL COMPLETION. If the Casualty
occurs prior to Substantial Completion of the Improvements,
satisfaction of all conditions precedent to Loan Advances set forth in
Sections 6, 7.1 and 7.2 and compliance with all construction
requirements of this Agreement.
14.4.2 AFTER SUBSTANTIAL COMPLETION. If the Casualty occurs
after Substantial Completion of the Improvements:
(i) Prior written approval by Agent, which
approval shall not be unreasonably withheld or delayed of
plans, specifications, cost estimates, contracts and bonds for
the restoration or repair of the loss or damage;
(ii) Waivers of lien, architect's certificates,
contractor's sworn statements and other evidence of cost
payments and completion as Agent may reasonably require;
(iii) If the Cost To Repair does not exceed
$100,000.00, the funds to pay therefor shall be released to
Borrower. Otherwise, funds shall be released upon final
completion of the Repair Work, unless Borrower requests
earlier funding, in which event partial monthly disbursements
equal to 90% of the value of the work completed or, if the
applicable contract is on a cost plus basis, then
112
90% of the costs of the work completed if such cost is less
than the value thereof shall be made prior to final completion
of the repair, restoration or replacement and the balance of
the disbursements shall be made upon full completion and the
receipt by Agent of satisfactory evidence of payment and
release of all liens;
(iv) Determination by Agent that the undisbursed
balance of such proceeds on deposit with Agent, together with
additional funds deposited for the purpose, shall be at least
sufficient to pay for the remaining Cost To Repair, free and
clear of all liens and claims for lien;
(v) All work to comply with the standards,
quality of construction and Legal Requirements applicable to
the construction of the Improvements; and
(vi) the absence of any Event of Default under
any Loan Documents.
14.5 TAKING. If there is any condemnation for public use of the
Property or of any Collateral, the awards on account thereof shall be paid to
Agent and shall be applied to Borrower's Obligations, or at Agent's discretion
released to Borrower. If, in the case of a partial taking or a temporary taking,
in the sole judgment of Agent the effect of such taking is such that there has
not been a material and adverse impairment of the viability of the Project or
the value of the Collateral, so long as no Default exists Agent shall release
awards on account of such taking to Borrower if such awards are sufficient (or
amounts sufficient are otherwise made available) to repair or restore the
Property to a condition reasonably satisfactory to Agent and such partial or
temporary taking shall not be deemed to violate the provisions of Section 9.6.1.
113
EXHIBIT I
BASE BUILDING CONDITION
Waltham ▇▇▇▇▇ Corporate Center
Description of Tenant Shell Condition
A) FLOORS
1) Landlord's base building shell contractor will leave the
entire shell space broom cleaned and ready for minor leveling
material where necessary to accommodate tenant fit-ups. Minor
floor prep work will be done by the tenant's carpet contractor
as part of the tenant build out.
B) WINDOWS
1) All building standard perimeter windows will be cleaned on the
inside.
2) All building standard perimeter window blinds will be
installed and left in place for tenant's use.
3) Building standard window ▇▇▇▇▇ will be maple finished and
installed.
C) COLUMNS
1) Columns are to be delivered with drywall enclosures, taped,
and sanded ready to accept paint by tenant.
D) EXTERIOR WALLS
1) All exterior walls will be insulated, covered with drywall,
taped, and sanded ready to receive new finishes by the tenant.
Installation of perimeter power, data & comm to be coordinated
with Landlord.
E) INTERIOR COMMON AREA WALLS OR CORRIDOR DEMISING WALLS
1) All interior common area walls and corridor demising walls
will be sheet rocked, taped, and sanded ready for tenant
vacant side. The corridor side will be finished with building
standard corridor finishes.
F) CEILINGS
1) The ceiling in the shell space will be exposed structural
steel and metal decking ready to receive the tenants ceiling
system.
G) HVAC
114
1) The Landlord's shell contractor will provide medium pressure
duct and interior VAV boxes and perimeter fan-powered VAV
boxes with DDC thermostat in a temporary location in the
vacant shell spaces. In finished space, one (1) fan-powered
VAV box will be supplied for every 1,500 rentable square,
feet. All work downstream of the VAV boxes including sheet
metal, flex ductwork, grilles and diffusers, exhaust fans,
balancing and connecting into the energy management system
will be part of tenant build out.
H) FIRE PROTECTION
1) The entire building will be sprinklered with sprinkler heads
in the vacant shell space left in the upright condition spaced
approximately 12' x 14' on center.
I) ELECTRICAL
1) Base Building
(a) The electrical service to the building is provided by
a pad mounted transformer. The secondary service
characteristics are 277/480 volts, three (3) phase,
four (4) wire, 60 Hertz, terminating at the 4000 Amp
main switchboard in the basement electrical room.
(b) Each floor is served with tenant distribution panels
served from a 277/480 volt vertical ▇▇▇▇ riser.
2) Tenant
Tenant distribution panels (2 double tub 225 amp 110/208 bulb
panel per electric closet) are to provide power for the tenant
lighting, power and VAV boxes. Tenant light and power will be
distributed to each floor at 8.0 ▇▇▇▇▇ per square foot. An
additional 2.0 ▇▇▇▇▇ per square foot will be available for
tenant lights and power at the main switchboard in the
basement.
Common area VAV's will be wired to the house panels. Tenant
VAV's will need to be connected to the tenant panels for
metering.
4) Base/Tenant
Electrical metering is being provided through a check meter
system installed by the Landlord. Individual meters and hook
up by the tenant.
5) Base/Tenant
The fire alarm system for the Building will meet the "ADA"
requirements. Building common areas are complete. Tenant to
install horn/strobes with its build out.
6) Tenant
115
Telephone closets are provided on each floor for distribution.
J) DEMISING WALLS
Landlord and Tenant shall equally bear the cost of demising walls
affecting the Premises.
116
EXHIBIT J
BUILDING STANDARD MATERIALS/SPECIFICATIONS
A. DOORS, FRAMES & HARDWARE
TENANT SUITE ENTRY AND EGRESS DOORS
Solid core maple veneer doors in a maple frame with 1'6" X 8'0"
sidelight and building standard hardware. Door shall be full height
3'0" X 8'0" X 1 3/4"
INTERIOR DOOR
Solid core maple veneer doors in a pressed metal frame with building
standard hardware. Door shall be full height 3'0" x 8'0" x 1 3/4".
STAIN
Stain veneer to match architect's (base building) sample. Landlord
shall provide a stain veneer sample to Tenant's designer within ten
(10) days after execution of the Lease.
ENTRY AND EGRESS DOOR HARDWARE
_______________________- full mortise, lever dead latch lockset with
surface mounted ADA closer, two pair of heavy weighted hinges, Ives
door stop and silencer. Metal shall be US 26 Polished Chrome or US32
polished stainless steel.
Landlord shall provide the complete desired door hardware specification
to Tenant within ten (10) days after execution of the Lease.
INTERIOR DOOR HARDWARE
Lever hardware with two pair of heavy weight hinges, Ives door stop and
silencer.
B. BUILDING SAFE
FIRE PROTECTION
Hydraulically designed, light hazard wet sprinkler system throughout
all common and tenant areas. Heads shall be concealed phantom type
heads recessed in ceiling and centered in the 2' x 2' ceiling tile.
The underground garage will be protected by a dry type sprinkler
system.
SMOKE DETECTORS, HEAT DETECTORS, REMOTE LED'S
Smoke or heat detectors will be installed, where required using CPD-ID
module 301-ID by Fire Control Instruments.
FIRE ALARM HORN/STROBE
Fire alarm strobes will be installed, where required.
C. CEILING
117
ACOUSTICAL TILE
Acoustic ceiling tile shall be VSG Acoustical Frost 414 with 2' x 2' x
5/8" thick tegular edge. Tenant shall have the right to use an
alternate ceiling specification in certain areas of the Premises,
subject to Landlord's reasonable approval thereof.
SUSPENSION GRID
Grid shall be Chicago Metallic 716 white ceiling grid
CEILING HEIGHTS
13'8" - slab to slab
9'6" - finished ceiling height in tenant space
LIGHTING
2' x 4', 18 cell, 3 lamp, 277 volt, florescent parabolic fixture with
electronic ballast and T-8 lamps and return air baffles. Lighting will
provide 50 foot candles 30" above finished floor.
D. FLOOR COVERINGS
CARPET
Cut pile option: ▇▇ ▇▇▇▇▇ "▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇" by Shaws; or Loop pile
option: 28 ounce "Colonial" by Shaws
VINYL COMPOSITION TILE
12" x 12" tile by ▇▇▇▇▇▇▇▇▇ Standard Excelon
Base 4" high resilient base by Nafco or ▇▇▇▇▇
E. PARTITIONS
DEMISING PARTITION
Framed with 3 5/8", 25 gage metal studs on 16" centers. Partitions
shall have one layer of 5/8" gypsum wall board, each side, taped and
sanded. Cavity shall have mineral BATT insulation and meet or exceed
the Underwriters Laboratory Design U448. Partition shall extend from
floor to deck and be sealed, top and bottom.
INTERIOR PARTITION
Framed with 2 1/2", 20 gage metal studs or 3 5/8", 25 gage metal studs
on 16" centers. Partitions shall have one layer of 5/8" gypsum wall
board on each side, taped and sanded. Framing and gypsum board shall
extend from the floor to 6" above the ceiling.
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EXHIBIT K
CLEANING SPECIFICATIONS
1. Cleaning.
A. OFFICE AREA
Daily on Business Days:
1. Empty and clean all waste receptacles and
ash trays and remove waste material from the
Premises; wash receptacles as necessary.
2. Sweep and dust mop all carpeted areas using
a dust treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths
all horizontal surfaces including furniture,
office equipment, window ▇▇▇▇▇, door ledges,
chair rails, and convector tops, within
normal reach.
5. Wash clean all water fountains.
6. Remove and dust under all desk equipment and
telephones and replace same.
7. Wipe clean all brass and other bright work.
8. Hand dust all grill work within normal reach.
9. Upon completion of cleaning, all lights will
be turned off and doors locked, leaving the
Premises in an orderly condition.
Weekly:
1. Dust coat racks and the like.
2. Remove all finger marks from private
entrance doors, light switches and doorways.
Quarterly:
Render high dusting not reached in daily cleaning to
include:
1. Dusting all pictures, frames, charts, graphs
and similar wall hangings.
2. Dusting all vertical surfaces, such as
walls, partitions, doors and ducts.
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3. Dusting all pipes, ducts and high moldings.
4. Dusting all venetian blinds.
B. Lavatories
Daily on Business Days:
1. Sweep and damp mop floors.
2. Clean all mirrors, powder shelves,
dispensers and receptacles, bright work,
flushometers, piping and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary
disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers,
towel dispensers, vending sanitary
dispensers; materials to be furnished by
Landlord.
9. A sanitizing solution will be used in all
lavatory cleaning.
Monthly:
1. Machines scrub lavatory floors.
2. Wash all partitions and tile walls in
lavatories.
C. MAIN LOBBY, ELEVATORS, BUILDING EXTERIOR AND CORRIDORS
Daily on Business Days:
1. Sweep and wash all floors.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe
down walls and corridors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding
Building entrance doors.
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Monthly:
All resilient tile floors in public areas to be
treated equivalent to spray buffing.
D. EXTERIOR WINDOWS
Biannually:
Wash exterior windows.
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EXHIBIT L
HVAC BUILDING DESIGN CRITERIA
Air-conditioning is provided through a variable air volume (VAV) system
with supply and return diffusers in the ceiling. Heat is provided through the
air-conditioning system using electric heating coils in the exterior zone VAV
terminal boxes.
The HVAC equipment has a design capacity to meet the following
criteria:
o 20 cubic feet per minute for a maximum of one (1) person per
150 square feet of net rentable area on a per floor basis
(ASHRAE standard 62-1981R).
o 88 degrees Fahrenheit dry bulb and 74 degrees Fahrenheit wet
bulb outside; 62 degrees Fahrenheit coincident wet bulb inside
(1 1/2% coincidence, ASHRAE Guide to Maintain an Inside
Temperature of 78 degrees Fahrenheit dry bulb, plus or minus
3% in summer conditions).
o 9 degrees Fahrenheit dry bulb outside; 72 degrees Fahrenheit
dry bulb inside, plus or minus 3% in winter conditions.
Tenant shall have the right to adjust the digital VAV system to
regulate temperature between 70 and 74 degrees Fahrenheit
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EXHIBIT M
LIST OF COMPETITORS OF BGS SYSTEMS, INC.
1. Computer Associates International, Inc.
2. Compuware Corporation
3. Envive Corporation
4. Net IQ Corporation
5. Platinum Technologies, Inc.
6. Tivoli Systems, Inc.
7. NEON Systems, Inc.