EXHIBIT 10.4
LEASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇▇▇ BUILDING LIMITED PARTNERSHIP,
AS LANDLORD, AND
ART TECHNOLOGY GROUP, INC., AS TENANT
DATED JANUARY __, 2004
TABLE OF CONTENTS
1. Definitions and Basic Provisions...................................... 4
2. Lease Grant........................................................... 4
4. Rent.................................................................. 4
(a) Payment..................................................... 4
(b) Operating Costs; Taxes...................................... 5
(c) Billing for Electricity..................................... 7
5. Delinquent Payment; Handling Charges.................................. 8
6. Security Deposit...................................................... 8
7. Landlord's Obligations................................................ 10
(a) Services.................................................... 10
(b) Excess Utility Use.......................................... 11
(c) Restoration of Services; Abatement.......................... 11
8. Improvements, Alterations, Repairs; Maintenance....................... 12
(a) Improvements; Alterations................................... 12
(b) Repairs; Maintenance........................................ 12
(c) Performance of Work......................................... 12
(d) Mechanic's Liens............................................ 13
9. Use................................................................... 13
10. Assignment and Subletting........................................ 13
(a) Transfers................................................... 14
(b) Consent Standards........................................... 14
(c) Request for Consent......................................... 14
(d) Conditions to Consent....................................... 14
(e) Cancellation................................................ 15
(f) Additional Compensation..................................... 15
(g) Permitted Transfers......................................... 15
11. Insurance; Waivers; Subrogation; Indemnity....................... 16
(a) Insurance................................................... 16
(b) Waiver of Negligence; No Subrogation........................ 17
(c) Indemnity................................................... 17
(d) Landlord's Insurance........................................ 17
12. Subordination; Attornment; Notice to Landlord's Mortgagee........ 17
(a) Subordination............................................... 17
(b) Attornment.................................................. 18
(c) Notice to Landlord's Mortgagee.............................. 18
(d) Landlord's Mortgagee's Protection Provisions................ 18
(e) Subordination, Non-Disturbance and Attornment Agreement..... 18
13. Rules and Regulations............................................ 19
14. Condemnation..................................................... 19
(a) Total Taking................................................ 19
(b) Partial Taking-Tenant's Rights.............................. 19
(c) Partial Taking-Landlord's Rights............................ 19
(d) Award....................................................... 20
15. Fire or Other Casualty........................................... 20
(a) Repair Estimate............................................. 20
(b) Landlord's and Tenant's Rights.............................. 20
(c) Landlord's Rights........................................... 20
(d) Repair Obligation........................................... 20
16. Personal Property Taxes.......................................... 21
17. Events of Default................................................ 21
17A. Landlord's Default............................................... 22
18. Remedies......................................................... 22
-i-
19. Payment by Tenant; Non-Waiver.................................... 23
(a) Payment by Tenant........................................... 23
(b) No Waiver................................................... 23
20. Landlord's Lien.................................................. 24
21. Surrender of Premises............................................ 24
22. Holding Over..................................................... 24
23. Certain Rights Reserved by Landlord.............................. 25
24. Intentionally Omitted............................................ 25
25. Miscellaneous.................................................... 25
(a) Landlord Transfer........................................... 25
(b) Landlord's Liability........................................ 25
(c) Force Majeure............................................... 26
(d) Brokerage................................................... 26
(e) Estoppel Certificates....................................... 26
(f) Notices.......................................................... 26
(g) Separability................................................ 26
(h) Amendments; and Binding Effect.............................. 27
(i) Quiet Enjoyment.................................................. 27
(j) No Merger........................................................ 27
(k) No Offer.................................................... 27
(1) Entire Agreement............................................ 27
(m) Waiver of Jury Trial........................................ 27
(n) Governing Law............................................... 27
(o) Joint and Several Liability................................. 27
(p) Financial Reports........................................... 28
(q) Landlord's Fees............................................. 28
(r) Telecommunications.......................................... 28
(s) Confidentiality............................................. 29
(t) Hazardous Materials.............................................. 29
(u) List of Exhibits............................................ 29
(v) Time of Essence............................................. 30
(w) Notice of Lease............................................. 30
(x) Failure of Tenant to Continuously Occupy the Premises....... 30
26. Other Provisions................................................. 30
-ii-
BASIC LEASE INFORMATION
Lease Date: January __, 2004
Tenant: ART TECHNOLOGY GROUP, INC. a Delaware corporation
Landlord: ▇▇▇▇▇▇▇▇▇ BUILDING LIMITED PARTNERSHIP, a Delaware
limited partnership
Premises: 60,471 rentable square feet on the second (2nd) floor
in the office building known as building #'s 1-14 of
The ▇▇▇▇▇▇▇▇▇ Building (the "BUILDING"), and whose
street address is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇. The Premises are outlined on the plan
attached to the Lease as Exhibit A. The land on which
the Building is located (the "LAND") is described on
Exhibit B. The term "Building" includes the related
land, driveways, parking facilities, and similar
improvements.
Term: Approximately thirty-three (33) months, commencing at
12:00 a.m. (meaning thereby the midnight between
March 31 and April 1) on April 1, 2004 (the
"COMMENCEMENT DATE") and ending at 5:00 p.m. on
December 31, 2006, subject to adjustment and earlier
termination as provided in the Lease.
Basic Rent: Basic Rent shall be the following amounts for the
following periods of time:
Rate per
Rentable
Square Annual Basic Monthly
PERIOD Foot Rent Payment
------------- -------- ------------- -----------
April 1, 2004 $ 22.00 $1,330,362.00 $110,863.50
- December
31, 2006
Security Deposit: Subject to the provisions of Section G of this Lease,
$1,330,362.00.
Rent: Basic Rent, Tenant's Proportionate Share of Taxes,
Tenant's share of Additional Rent, and all other sums
that Tenant may owe to landlord or otherwise be
required to pay under the Lease.
Permitted Use: General office use and training classrooms.
-1-
"Tenant's 27.39%, which is the percentage obtained by dividing
Proportionate the 60,471 rentable square feet in the Premises by
Share: the 220,750 rentable square feet in the Building.
Landlord and Tenant stipulate that the number of
rentable square feet in the Premises and in the
Building set forth above shall be binding upon them.
Expense Stop: Operating Costs for calendar year 1999.
Base Year for Taxes: Fiscal Year 2000.
Initial Liability
Insurance Amount: $3,000,000.
Tenant's Address:
The ▇▇▇▇▇▇▇▇▇ Building
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Landlord's Address: For all Notices: With a copy to:
▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇.
Development, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Suite 303 Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
The foregoing Basic Lease Information is incorporated into and made a part of
the Lease identified above. If any conflict exists between any Basic Lease
Information and the Lease, then the Lease shall control.
LANDLORD:
▇▇▇▇▇▇▇▇▇ BUILDING LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: IBUS ▇▇▇▇▇▇▇▇▇ Cambridge, Inc., its
-2-
general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
TENANT:
ART TECHNOLOGY GROUP, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
-3-
LEASE
THIS LEASE AGREEMENT (this "LEASE") is entered into as of January __,
2004, between ▇▇▇▇▇▇▇▇▇ BUILDING LIMITED PARTNERSHIP, a Delaware limited
partnership ("LANDLORD"), and ART TECHNOLOGY GROUP, INC., a Delaware corporation
("TENANT").
1. DEFINITIONS AND BASIC PROVISIONS. The definitions and basic
provisions set forth in the Basic Lease Information (the "BASIC LEASE
INFORMATION") executed by Landlord and Tenant contemporaneously herewith are
incorporated herein by reference for all purposes. Additionally, the following
terms shall have the following meanings when used in this Lease: "LAWS" means
all federal, state, and local laws, rules and regulations, all court orders,
governmental directives, and governmental orders, and all restrictive covenants
affecting the Property, and "LAW" shall mean any of the foregoing; "Affiliate"
means any person or entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
party in question; "TENANT PARTY" means any of the following persons: Tenant;
any assignees claiming by, through, or under Tenant; any subtenants claiming by,
through, or under Tenant; and any of their respective agents, contractors,
employees, and invitees; and "INCLUDING" means including, without limitation.
2. LEASE GRANT. Subject to the terms of this Lease, Landlord
leases to Tenant, and Tenant leases from Landlord, the Premises, together with
the non-exclusive right to use in common for itself and its employees, agents,
customers, invitees and licensees with others as appurtenant to the Premises
common lobbies, hallways, stairways, elevators, bathrooms, building entrances,
exits and accessways, and the Building's common utility pipes and service
connections.
3. TERM. The Term hereof shall commence on April 1, 2004, and
shall expire (unless earlier terminated pursuant to the terms hereof) on
December 31, 2006. Tenant shall accept the Premises in their AS-IS condition as
of the Commencement Date, without any obligation on the Landlord's part to
perform any additions, alterations, improvements, demolition or other work
therein or pertaining thereto. By occupying the Premises, Tenant shall be deemed
to have accepted the Premises in their condition as of the date of such
occupancy.
4. RENT.
(a) PAYMENT. Tenant shall timely pay to Landlord Basic
Rent and all additional sums to be paid by Tenant to Landlord under this Lease,
without notice, deduction or set off, except as otherwise expressly provided
herein. Until notice of some other designation is given, Basic Rent and all
other charges for which provision is herein made shall be paid by remittance to
or to the order of ▇▇▇▇▇▇▇▇▇ Building L.P. at ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.▇▇▇ shall be accompanied by all applicable state and local sales or use
taxes. Basic Rent, adjusted as herein provided, shall be payable monthly in
advance. The first monthly installment of Basic Rent shall be
-4-
payable contemporaneously with the execution of this Lease; thereafter, Basic
Rent shall be payable on the first day of each month beginning on the first day
of the second full calendar month of the Term. The monthly Basic Rent for any
partial month at the beginning of the Term shall equal the product of 1/365 of
the annual Basic Rent in effect during the partial month and the number of days
in the partial month from and after the Commencement Date, and shall be due on
the Commencement Date.
(b) OPERATING COSTS; TAXES.
(1) Tenant shall pay an amount (per each
rentable square foot in the Premises) ("ADDITIONAL RENT") equal to the
difference between the Operating Costs (defined below) per rentable square foot
in the Building and the Expense Stop (calculated on a per rentable square foot
basis). Landlord may make a good faith estimate of the Additional Rent to be due
by Tenant for any calendar year or part thereof during the Term, and Tenant
shall pay to Landlord, on the first day of each calendar month thereafter, an
amount equal to the estimated Additional Rent for such calendar year or part
thereof divided by the number of months therein. From time to time, Landlord may
estimate and re-estimate the Additional Rent to be due by Tenant and deliver a
copy of the estimate or re-estimate to Tenant. Thereafter, the monthly
installments of Additional Rent payable by Tenant shall be appropriately
adjusted in accordance with the estimations so that, by the end of the calendar
year in question, Tenant shall have paid all of the Additional Rent as estimated
by Landlord. Any amounts paid based on such an estimate shall be subject to
adjustment or readjustment as herein provided when actual Operating Costs are
available for each calendar year.
(2) The term "OPERATING COSTS" shall mean all
expenses and disbursements (subject to the limitations set forth below) that
Landlord incurs in connection with the ownership, operation, and maintenance of
the Building, determined in accordance with sound accounting principles
consistently applied, including, but not limited to, the following costs: (A)
wages and salaries (including management fees, which management fees shall not
exceed fair market management fees for comparable buildings in the Cambridge
area) of all employees at the level of Building Manager and below engaged in the
operation, maintenance, and security of the Building, including taxes, insurance
and benefits relating thereto; (B) all supplies and materials used in the
operation, maintenance, repair, replacement, and security of the Building; (C)
costs for improvements made to the Building which, although capital in nature,
are expected to reduce the normal operating costs (including all utility costs)
of the Building, as well as capital improvements made in order to comply with
any law hereafter promulgated by any governmental authority, as amortized over
the useful economic life of such improvements as determined by Landlord in its
reasonable discretion; (D) cost of all utilities, except the cost of other
utilities reimbursable to Landlord by the Building's tenants other than pursuant
to a provision similar to this Section 4(b); (E) insurance expenses; (F)
repairs, replacements, and general maintenance of the Building; and (G) service
or maintenance contracts with independent contractors for the operation,
maintenance, repair, replacement, or security of the Building (including,
without limitation, alarm service, window cleaning, and elevator maintenance).
-5-
Operating Costs shall not include costs for (i) capital
improvements made to the Building, other than capital improvements described in
Section 4(b)(2)(C) and except for items which are generally considered
maintenance and repair items, such as painting of common areas, replacement of
carpet in elevator lobbies, and the like; (ii) repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant or other third parties;
(iii) interest, amortization or other payments on loans to Landlord or under a
ground lease or master lease relating to the Building; (iv) depreciation; (v)
leasing commissions; (vi) legal expenses for services, other than those that
benefit the Building tenants generally (e.g., tax disputes); (vii) renovating or
otherwise improving space for occupants of the Building or vacant space in the
Building; (viii) Taxes (defined below); (ix) federal income taxes imposed on or
measured by the income of Landlord from the operation of the Building; (x) any
cost or expense to the extent to which Landlord is paid or reimbursed (other
than as a payment for Operating Costs), including but not necessarily limited
to, (1) work or service performed for any tenant (including Tenant) at such
tenant's costs, (2) the cost of any item for which Landlord is paid or
reimbursed by insurance, warranties, service contracts, condemnation proceeds or
otherwise. (3) increased insurance or taxes assessed specifically to any tenant
of the Building, (4) charges (including applicable taxes) for electricity, water
and other utilities for which Landlord is entitled to reimbursement from any
tenant, and (5) the cost of any HVAC, janitorial or other services provided to
tenants on an extra-cost basis after regular business hours as defined in the
Lease; (xi) salaries and bonuses of officers and executives of Landlord; (xii)
the cost of any work or service performed on an extra-cost basis for any tenant
of the Building (including Tenant); (xiii) the cost of any work or services
performed for any facility other than the Building; (xiv) any fees, costs, and
commissions incurred in procuring or attempting to procure other tenants
including, but not necessarily limited to brokerage commissions, finders fees,
attorney's fees and expenses, entertainment costs and travel expenses; (xv) any
cost included in Operating Costs representing an amount paid to a person, firm,
corporation or other entity related to Landlord which is in excess of the amount
which would have been paid on an arms length basis in the absence of such
relationship; and (xvi) the cost of advertising for the Building.
(3) Tenant shall also pay its Proportionate
Share of any increase in Taxes for each year and partial year falling within the
Term over the Taxes for the fiscal year 2000. Tenant shall pay its Proportionate
Share of Taxes in the same manner as provided above for Additional Rent with
regard to Operating Costs. "Taxes" shall mean taxes, assessments, and
governmental charges whether federal, state, county or municipal, and whether
they be by taxing districts or authorities presently taxing or by others,
subsequently created or otherwise, and any other taxes and assessments
attributable to the Building (or its operation), excluding, however, penalties
and interest thereon, any inheritance, estate, succession, transfer, gift and
franchise taxes, and federal and state taxes on income (if the present method of
taxation changes so that in lieu of the whole or any part of any Taxes, there is
levied on Landlord a capital tax directly on the rents received therefrom or a
franchise tax, assessment, or charge based, in whole or in part, upon such rents
for the Building, then all such taxes, assessments, or charges, or the part
thereof so based, shall be deemed to be included within the term
-6-
"TAXES" for purposes hereof). Taxes shall include the costs of consultants
retained in an effort to lower taxes and all costs incurred in disputing any
taxes or in seeking to lower the tax valuation of the Building. For property tax
purposes, Tenant waives all rights to protest or appeal the appraised value of
the Premises, as well as the Building, and all rights to receive notices of
re-appraisement.
(4) [Intentionally Deleted].
(5) By April 1 of each calendar year, or as soon
thereafter as practicable, Landlord shall furnish to Tenant a statement of
Operating Costs for the previous year, in each case adjusted as provided in
Section 4(b)(6), and of the Taxes for the previous year (the "Operating Costs
and Tax Statement"). If the Operating Costs and Tax Statement reveals that
Tenant paid more for Operating Costs than its Proportionate Share of the actual
total amount for the year for which such statement was prepared, or more than
its Proportionate Share of Taxes for such year, then Landlord shall promptly
credit or reimburse Tenant for such excess; likewise, if Tenant paid less than
Tenant's actual Proportionate Share of Additional Rent or Proportionate Share of
Taxes due, then Tenant shall promptly pay Landlord such deficiency. If Tenant
disputes such Operating Cost and Tax Statement as aforesaid, Tenant shall have
the right to cause an accounting firm not engaged on a contingent fee basis to
audit Landlord's books used to determine said Operating Cost and Tax Statement
within ninety (90) days after submission thereof by Landlord, which right Tenant
agrees not to exercise more than once annually. Access to said Operating Cost
and Tax Statement books shall be provided within thirty (30) days of Tenant's
request. Any information obtained by Tenant pursuant to the provisions of this
Section 4(b)(5) shall be treated as confidential and shall not be disclosed to
anyone including without limitation any other tenants of the Building (other
than to Tenant's accounting firm and/or Tenant's financial and legal consultants
and lenders). If any such audit discloses Tenant paid in excess of Tenant's
proportionate share of Operating Costs or Taxes, Landlord shall promptly
reimburse such excess to Tenant within thirty (30) days after Tenant's demand
therefore. If any audit discloses that Landlord overstated Operating Costs
and/or Taxes by more than five percent (5%), Landlord shall promptly reimburse
Tenant for its reasonable out-of-pocket costs associated with such audit.
(6) With respect to any calendar year or partial
calendar year in which the Building is not occupied to the extent of 95% of the
rentable area thereof; those items of Operating Costs which vary based upon
occupancy (for example, cleaning costs) for such period shall, for the purposes
hereof, be increased to the amount which would have been incurred on account of
such items (computed on an item-by-item basis) had the Building been occupied to
the extent of 95% of the rentable area thereof through such calendar year, to
reflect the actual variable operating cost incurred for the Premises.
(c) BILLING FOR ELECTRICITY. To the extent that the
Premises are separately metered for utilities, Tenant shall pay (as hereinafter
described) for the use of all electrical service to the Premises. Tenant shall
be billed directly by such utility company and Tenant agrees to pay each ▇▇▇▇
promptly in accordance with its terms, and
-7-
upon default in making any such payment beyond any applicable cure period,
Landlord may pay such charges and collect the same from Tenant only after
Tenant's failure to pay such charges before they become delinquent. In the event
for any reason Tenant cannot be billed directly, Landlord shall forward each
▇▇▇▇ received with respect to the Building to Tenant of which Tenant shall pay
its proportionate share (as reasonably determined by Landlord based upon either
square footage or level of use) promptly and in accordance with its terms. If
the Premises are not separately metered for any reason, Tenant shall pay
Landlord as further additional rent, in monthly installments at the time
prescribed for monthly installments of Basic Rent, a pro rata share of the cost
of electricity for the Premises as estimated by Landlord from time to time in
Landlord's reasonable discretion. As of the Commencement Date, the cost of
electricity estimated by Landlord shall be at the rate of $1.25 per rentable
square foot of the Premises per annum. Either party may require the purchase and
installation of a meter and/or sub-meter, at its sole cost and expense, for the
purpose of metering and/or sub-metering Tenant's consumption of electricity.
Tenant shall keep such meter and/or sub-meter serving the Premises and their
related installation equipment in good working order and repair.
5. DELINQUENT PAYMENT; HANDLING CHARGES. All past due payments
required of Tenant hereunder shall bear interest from the date due until paid at
the lesser of eighteen percent per annum or the maximum lawful rate of interest;
additionally, Landlord may charge Tenant a fee equal to 5% of the delinquent
payment to reimburse Landlord for its cost and inconvenience incurred as a
consequence of Tenant's delinquency. In no event, however, shall the charges
permitted under this Section 5 or elsewhere in this Lease, to the extent they
are considered to be interest under applicable Law, exceed the maximum lawful
rate of interest.
6. SECURITY DEPOSIT. Landlord acknowledges that it is currently
holding a letter of credit in the amount of US$1,670,000.00 (the "Existing
Letter of Credit") to secure Tenant's obligations under an existing lease
between Landlord and Tenant for the Premises which expires the day before the
Commencement Date hereof. On or after the Execution Date hereof, Tenant shall
deliver to Landlord an amendment (which amendment shall be in form and substance
reasonably acceptable to Landlord's attorney) amending the Existing Letter of
Credit to reduce the amount thereof to $1,330,362.00 and making only such other
changes thereto as may be necessary to reference the fact that such Existing
Letter of Credit, as amended, secures Tenant's obligations under this Lease and
the fact that Landlord is the beneficiary thereof. The Existing Letter of
Credit, as so amended, is hereinafter referred to as the "Letter of Credit."
The Letter of Credit is not an advance payment of Rent or a measure or
limit of Landlord's damages upon an Event of Default (defined in Section 17).
The issuer of the Letter of Credit shall be a banking institution with at least
a rating of A and otherwise reasonably acceptable to Landlord. Although Landlord
shall only have the right to draw under the Letter of Credit as set forth
herein, under the terms of the Letter of Credit, the sole condition to
Landlord's draw upon the Letter of Credit shall be presentment to the issuer
thereof, prior to or on the expiration date, of a demand for payment. The Letter
of Credit shall be self-renewing from year to year during the Term
-8-
of this Lease so as to expire no earlier than thirty (30) days following the
Lease expiration date and shall contain such other customary terms as Landlord
requires in its reasonable discretion. It is agreed: (i) that the Letter of
Credit may be drawn upon to cure any Event of Default that may exist, without
prejudice to any other remedy or remedies which Landlord may have on account
thereof, and upon Landlord's demand, Tenant shall reimburse the issuer for the
amount so drawn so that the Letter of Credit will be restored to its original
amount; (ii) subject to the provisions of clause (iv) below, that the Letter of
Credit may be drawn upon if the Letter of Credit has not been extended or
renewed without amendment at least forty-five (45) days prior to any
then-current expiration date thereof; (iii) that if the rating of the issuer of
the Letter of Credit at any time drops below A, then, within sixty (60) days of
Landlord's demand, Tenant shall replace the Letter of Credit with another Letter
of Credit in a form reasonably acceptable to Landlord and with an issuer with a
rating of at least an A and otherwise reasonably acceptable to Landlord;
Landlord may draw on the existing Letter of Credit if, after Landlord requests
that Tenant replace the Letter of Credit as aforesaid, Landlord is not provided
with a substitute Letter of Credit in a form, and from an issuer, satisfactory
to Landlord as provided above at least fifteen (15) days prior to the
then-current expiration date of the Letter of Credit; (iv) if at any time, but
in any event, at least sixty (60) days prior to the expiration of the Letter of
Credit, Tenant may seek Landlord's consent to switch issuers of the Letter of
Credit provided the prospective issuer has a rating of at least an A and is
otherwise reasonably acceptable to Landlord and the new form of Letter of Credit
satisfies the requirements of Landlord hereunder and is otherwise reasonably
acceptable to Landlord; Landlord may draw on the existing Letter of Credit if,
after Tenant requests Landlord's consent to switch issuers as aforesaid,
Landlord is not provided with a substitute Letter of Credit in a form, and from
an issuer, satisfactory to Landlord in its sole and absolute discretion at least
forty-five (45) days prior to the then-current expiration date of the Letter of
Credit; (v) that should the Premises be conveyed by Landlord, the Letter of
Credit (which shall provide by its terms that it may be transferred from time to
time without charge to Landlord) shall be transferred to Landlord's grantee, and
if the same be transferred as aforesaid, Tenant hereby releases Landlord from
any and all liability with respect to the Letter of Credit and its application
or return, and Tenant agrees to look to such grantee for such application or
return, provided such grantee assumes Landlord's obligations under this Lease
(including this Section 6); and (vi) that the Letter of Credit shall be returned
to Tenant upon the later of (a) thirty (30) days after the expiration of the
Term or any renewal or extension thereof, or (b) the date Tenant has vacated the
Premises and surrendered possession thereof to Landlord at the expiration of the
Term or any extension thereof as provided herein and has paid Landlord all sums
due and owing under this Lease.
For the purposes of this Section 6, a rating of at least A (or its
equivalent) shall mean that such issuer has a rating of at least A (or its
equivalent) from two (2) of the following four (4) rating agencies: Fitch
Investors Service, ▇▇▇▇▇'▇ Investor Service, Standard & Poor's Corporation and
Duff & ▇▇▇▇▇▇.
-9-
Notwithstanding any provisions of this Section 6 to the contrary, the
Security Deposit (or the applicable Letter of Credit) shall be reduced on June
1, 2006 and on the first day of each calendar month thereafter (each, a
"Reduction Date"), each such reduction to be in the amount of $174,214.00,
provided that on each such Reduction Date (i) the Lease is in full force and
effect, (ii) no monetary or material non-monetary Event of Default exists, (iii)
no monetary or material non-monetary Event of Default has occurred during the
Term, and (iv) Tenant has not assigned this Lease to anyone other than a
Permitted Transferee or to the sublessee(s) consented to by Landlord in
accordance with the provisions of this Lease. If on any Reduction Date the
Security Deposit (or the applicable Letter of Credit) shall not be reduced
because one or more of the conditions set forth in clauses (i), (ii) or (iii)
above cease to exist on such Reduction Date, the Security Deposit (or applicable
Letter of Credit) shall not be reduced on succeeding Reduction Date. If on any
Reduction Date the Security Deposit (or applicable Letter of Credit) shall not
be reduced because only the condition set forth in clause (iv) above (as opposed
to the conditions set forth in any of clauses (i), (ii) or (iii) above) ceases
to exist on such Reduction Date, the Security Deposit (or applicable Letter of
Credit) shall be so reduced on the next succeeding Reduction Date, provided the
conditions set forth in clauses (i), (ii), (iii) and (iv) above exist on the
next succeeding Reduction Date, and provided further that the Security Deposit
(or applicable Letter of Credit) shall be reduced only by the amount which the
Security Deposit (or applicable Letter of Credit) would have been reduced on the
preceding Reduction Date if all of the conditions set forth in clauses (i),
(ii), (iii) and (iv) above existed. If the Security Deposit (or applicable
Letter of Credit) is reduced pursuant to the foregoing provisions, Landlord
shall return the amount of each such applicable reduction if Tenant paid the
Security Deposit in cash or Tenant may replace and/or amend the Letter of Credit
accordingly.
7. LANDLORD'S OBLIGATIONS
(a) SERVICES. Landlord shall furnish to Tenant (1) water
at those points of supply provided for general use of tenants of the Building;
(2) heated and refrigerated air conditioning ("HVAC") as appropriate, at such
temperatures and in such amounts as are standard for comparable buildings in the
vicinity of the Building; (3) janitorial service to the Premises on weekdays,
other than holidays, for Building-standard installations (as more specifically
set forth in the janitorial specifications attached hereto as Exhibit K) and
such window washing as may from time to time be reasonably required; (4)
elevators for ingress and egress to the floor on which the Premises are located,
in common with other tenants, provided that Landlord may reasonably limit the
number of operating elevators during non-business hours and holidays; and (5)
electrical current during normal business hours for equipment that does not
require more than 110 volts and whose electrical energy consumption does not
exceed normal office usage. Landlord shall maintain the common areas of the
Building in reasonably good order and condition, except for damage caused by a
Tenant Party's gross negligence or willful misconduct. If Tenant desires any of
the services specified in Section 7(a)(2) at any time other than between 8:00
a.m. and 6:00 p.m. on weekdays (excluding holidays), then such services shall be
supplied to Tenant upon the written
-10-
request of Tenant delivered to Landlord before 3:00 p.m. on the business day
preceding such extra usage, and Tenant shall pay to Landlord the cost of such
services within ten days after Landlord has delivered to Tenant an invoice
therefore. The costs incurred by Landlord in providing after-hour HVAC service
to Tenant shall include costs for electricity, water, sewage, water treatment,
labor, metering, filtering, and maintenance reasonably allocated by Landlord to
providing such service.
(b) EXCESS UTILITY USE. Landlord shall not be required to
furnish electrical current for equipment that requires more than 110 volts or
other equipment whose electrical energy consumption exceeds normal office usage.
If Tenant's requirements for or consumption of electricity exceed the
electricity to be provided by Landlord as described in Section 7(a), Landlord
shall, at Tenant's expense, make reasonable efforts to supply such service
through the then-existing feeders and risers serving the Building and the
Premises, and Tenant shall pay to Landlord the cost of such service within ten
days after Landlord has delivered to Tenant an invoice therefore. Landlord may
determine the amount of such additional consumption and potential consumption by
any verifiable method, including installation of a separate meter in the
Premises installed, maintained, and read by Landlord, at Tenant's expense.
Tenant shall not install any electrical equipment requiring special wiring or
requiring voltage in excess of 110 volts or otherwise exceeding Building
capacity unless approved in advance by Landlord. The use of electricity in the
Premises shall not exceed the capacity of existing feeders and risers to or
wiring in the Premises. Any risers or wiring required to meet Tenant's excess
electrical requirements shall, upon Tenant's written request, be installed by
Landlord, at Tenant's cost, if, in Landlord's judgment, the same are necessary
and shall not cause permanent damage to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, repairs, or expenses, or interfere with or disturb other tenants of
the Building. If Tenant uses machines or equipment in the Premises which affect
the temperature otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air conditioning units
or other supplemental equipment in the Premises, and the cost thereof, including
the cost of installation, operation, use, and maintenance, shall be paid by
Tenant to Landlord within ten days after Landlord has delivered to Tenant an
invoice therefore.
(c) RESTORATION OF SERVICES; ABATEMENT. Landlord shall
use reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render Landlord liable for
any damages caused thereby, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of Tenant's obligations hereunder. If, however,
Tenant is prevented from using the Premises for more than 10 consecutive
business days because of the unavailability of any such service and such
unavailability was not caused by a Tenant Party, then Tenant shall, as its
exclusive remedy be entitled to a reasonable abatement of Rent for each
consecutive day (after such 10-day period) that Tenant is so prevented from
using the Premises.
-11-
8. IMPROVEMENTS, ALTERATIONS, REPAIRS; MAINTENANCE.
(a) IMPROVEMENTS; ALTERATIONS. Improvements to the
Premises shall be installed at Tenant's expense only in accordance with plans
and specifications which have been previously submitted to and approved in
writing by Landlord. No alterations or physical additions in or to the Premises
may be made without Landlord's prior written consent, which shall not be
unreasonably withheld, delayed or conditioned; however, Landlord may withhold
and/or condition its consent to any alteration or addition that would affect the
Building's structure or its HVAC, plumbing, electrical, or mechanical systems.
Tenant shall not paint or install lighting or decorations, signs, window or door
lettering, or advertising media of any type on or about the Premises without the
prior written consent of Landlord, which shall not be unreasonably withheld or
delayed; however, Landlord may withhold its consent to any such painting or
installation which would affect the appearance of the exterior of the Building
or of any common areas of the Building. All alterations, additions, and
improvements shall be constructed, maintained, and used by Tenant, at its risk
and expense, in accordance with all Laws; Landlord's approval of the plans and
specifications therefore shall not be a representation by Landlord that such
alterations, additions, or improvements comply with any Law. Notwithstanding the
foregoing, Tenant may from time to time make alterations, additions or
improvements to the Premises, without the consent of Landlord and without
Landlord's approval of plans, provided: (i) the cost thereof shall not exceed
Fifty Thousand Dollars ($50,000) in the aggregate in any consecutive
twelve-month period; (ii) Tenant shall, prior to commencing any such
alterations, additions and/or improvements in the Premises (other than those
which are purely cosmetic in nature), furnish Landlord with a complete set of
plans and specifications for any such alterations, additions and/or
improvements; (iii) such alterations, additions and/or improvements shall not
involve or affect the exterior or the structure of the Building or any of the
HVAC, mechanical, electrical, plumbing or fire safety systems of the Building;
and (iv) Tenant shall comply with all requirements of this Lease with respect to
such alterations, additions and/or improvements other than obtaining the prior
approval of Landlord.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the
Premises in a clean, safe, and operable condition, and shall not permit or allow
to remain any waste or damage to any portion of the Premises other than
reasonable wear and tear. Tenant shall repair or replace, subject to Landlord's
direction and supervision, any damage to the Building caused by a Tenant Party.
If Tenant fails to make such repairs or replacements within 30 days after the
occurrence of such damage, then Landlord may make the same at Tenant's cost. If
any such damage occurs outside of the Premises, then Landlord may elect to
repair such damage at Tenant's expense, rather than having Tenant repair such
damage. The cost of all repair or replacement work performed by Landlord under
this Section 8 shall be paid by Tenant to Landlord within ten days after
Landlord has invoiced Tenant therefore.
(c) PERFORMANCE OF WORK. All work described in this
Section 8 shall be performed only by Landlord or by contractors and
subcontractors approved in
-12-
writing by Landlord (which approval shall not be unreasonably withheld, delayed
or conditioned). Tenant shall cause all contractors and subcontractors to
procure and maintain insurance coverage naming Landlord as an additional insured
against such risks in such amounts, and with such companies as Landlord may
reasonably require. All such work shall be performed in accordance with all
applicable Laws and in a good and workmanlike manner so as not to damage the
Building (including the Premises, the structural elements, and the plumbing,
electrical lines, or other utility transmission facility). All such work which
may affect the Building's HVAC, electrical, plumbing, other mechanical systems,
or structural elements must be approved by the Building's engineer of record, at
Tenant's expense and, at Landlord's election, must be performed by Landlord's
usual contractor for such work.
Tenant shall provide to Landlord the names and addresses of all
contractors and subcontractors and copies of contracts for all contractors and
subcontractors, and upon completion of any work shall promptly furnish Landlord
with full and final waivers of lien covering all labors and materials included
in the work in question.
(d) MECHANIC'S LIENS. Tenant shall not permit any
mechanic's liens to be filed against the Premises or the Building for any work
performed, materials furnished, or obligation incurred by or at the request of
Tenant. If such a lien is filed, then Tenant shall, within ten days after
Landlord has delivered notice of the filing thereof to Tenant, either pay the
amount of the lien or diligently contest such lien and deliver to Landlord a
bond or other security reasonably satisfactory to Landlord. If Tenant fails to
timely take either such action, then Landlord may pay the lien claim, and any
amounts so paid, including expenses and interest, shall be paid by Tenant to
Landlord within ten days after Landlord has invoiced Tenant therefore.
9. USE. Tenant shall occupy and use the Premises only for the
Permitted Use and uses ancillary thereto, and for no other purposes, and shall
comply with all Laws relating to the use, condition, access to, and occupancy of
the Premises. The population density within the Premises as a whole shall at no
time exceed one person for each 200 rentable square feet in the Premises. Tenant
shall not conduct second or third shift operations within the Premises; however,
Tenant may use the Premises after normal business hours, so long as Tenant is
not generally conducting business from the Premises after normal business hours.
The Premises shall not be used for any use which is disreputable, creates
extraordinary fire hazards, or results in an increased rate of insurance on the
Building or its contents, or for the storage of any Hazardous Materials (except
in accordance with Section 25(t) below). If, because of a Tenant Party's acts,
the rate of insurance on the Building or its contents increases, then Tenant
shall pay to Landlord the amount of such increase on demand, and acceptance of
such payment shall not waive any of Landlord's other rights. Tenant shall
conduct its business and control each other Tenant Party so as not to create any
nuisance or unreasonably interfere with other tenants. or Landlord in its
management of the Building.
10. ASSIGNMENT AND SUBLETTING
-13-
(a) TRANSFERS. Except as provided in Section 10(g),
Tenant shall not, without the prior written consent of Landlord, (1) assign,
transfer, or encumber this Lease or any estate or interest herein, whether
directly or by operation of law, (2) permit any other entity to become Tenant
hereunder by merger, consolidation, or other reorganization, (3) if Tenant is an
entity other than a corporation whose stock is publicly traded, permit the
transfer of an ownership interest in Tenant so as to result in a change in the
current control of Tenant (except that Tenant may permit the transfer of an
ownership interest in Tenant that results in a change in the current control of
Tenant if such change in control occurs as a result of an initial public
offering of shares of Tenant), (4) sublet any portion of the Premises, (5) grant
any license, concession, or other right of occupancy of any portion of the
Premises, or (6) permit the use of the Premises by any parties other than Tenant
(any of the events listed in Section 10(a)(1) through 10(a)(6) being a
"Transfer").
(b) CONSENT STANDARDS. Landlord shall not unreasonably
withhold its consent to any assignment or subletting of the Premises, provided
that the proposed transferee is creditworthy, has a good reputation in the
business community, will use the Premises for the Permitted Use (thus,
excluding, without limitation, uses for credit processing and telemarketing) and
will not use the Premises in any manner that would conflict with any exclusive
use agreement or other similar agreement entered into by Landlord with any other
tenant of the Building (provided, however, no present or future agreement shall
prohibit the use of the Premises for the Permitted Use, is not a governmental
entity, or subdivision or agency thereof, and is not another occupant of the
Building or person or entity with whom Landlord is negotiating to lease space in
the Building; otherwise, Landlord may withhold its consent in its sole
discretion.
(c) REQUEST FOR CONSENT. If Tenant requests Landlord's
consent to a Transfer, then Tenant shall provide Landlord with a written
description of all terms and conditions of the proposed Transfer, copies of the
proposed documentation, and the following information about the proposed
transferee: name and address; reasonably satisfactory information about its
business and business history; its proposed use of the Premises; banking,
financial, and other credit information reasonably required to determine the
creditworthiness of a proposed transferee; and general references sufficient to
enable Landlord to determine the proposed transferee's creditworthiness and
character. Concurrently with Tenant's notice of any request for consent to a
Transfer, Tenant shall pay to Landlord a fee of $750 to defray Landlord's
expenses in reviewing such request, and Tenant shall also reimburse Landlord
immediately upon request for its reasonable attorneys' fees incurred in
connection with considering any request for consent to a Transfer.
(d) CONDITIONS TO CONSENT. If Landlord consents to a
proposed Transfer, then the proposed transferee shall deliver to Landlord a
written agreement whereby it expressly assumes Tenant's obligations hereunder;
however, any transferee of less than all of the space in the Premises shall be
liable only for obligations under this Lease that are properly allocable to the
space subject to the Transfer for the period of the Transfer. No Transfer shall
release Tenant from its obligations under this Lease, but
-14-
rather Tenant and its transferee shall be jointly and severally liable
therefore. Landlord's consent to any Transfer shall not waive Landlord's rights
as to any subsequent Transfers. If an Event of Default occurs while the Premises
or any part thereof are subject to a Transfer, then Landlord, in addition to its
other remedies, may collect directly from such transferee all rents becoming due
to Tenant and apply such rents against Rent. Tenant authorizes its transferees
to make payments of rent directly to Landlord upon receipt of notice from
Landlord to do so. Tenant shall pay for the cost of any demising walls or other
improvements necessitated by a proposed subletting or assignment.
(e) CANCELLATION. Landlord may, within 30 days after
submission of Tenant's written request for Landlord's consent to an assignment
or subletting (except for an assignment or sublease to a Permitted Transferee),
cancel this Lease as to the portion of the Premises proposed to be sublet (if
the sublease is for more than twenty percent (20%) of the Premises and for more
than seventy-five percent (75%) of the then-remaining Term) or assigned as of
the date the proposed Transfer is to be effective. If Landlord cancels this
Lease as to any portion of the Premises, then this Lease shall cease for such
portion of the Premises and Tenant shall pay to Landlord all Rent accrued
through the cancellation date relating to the portion of the Premises covered by
the proposed Transfer. Thereafter, Landlord may lease such portion of the
Premises to the prospective transferee (or to any other person) without
liability to Tenant.
(f) ADDITIONAL COMPENSATION. Tenant shall pay to
Landlord, immediately upon receipt thereof, fifty percent (50%) of the excess of
(1) all compensation received by Tenant for a Transfer less the costs reasonably
incurred by Tenant with unaffiliated third parties in connection with such
Transfer (i.e., brokerage commissions, legal fees, tenant finish work, and the
like) over (2) the Rent allocable to the portion of the Premises covered
thereby.
(g) PERMITTED TRANSFERS. Notwithstanding Section 10(a),
Tenant may Transfer all or part of its interest in this Lease or all or part of
the Premises (a "Permitted Transfer") to the following types of entities (a
"Permitted Transferee") without the written consent of Landlord:
(1) an Affiliate of Tenant;
(2) any corporation, limited partnership,
limited liability partnership, limited liability company or
other business entity in which or with which Tenant, or its
corporate successors or assigns, is merged or consolidated, in
accordance with applicable statutory provisions governing
merger and consolidation of business entities, so long as (A)
Tenant's obligations hereunder are assumed by the entity
surviving such merger or created by such consolidation; and
(B) the Tangible Net Worth of the surviving or created entity
is not less than the greater of (i) the Tangible Net Worth of
Tenant as of the date hereof, or (ii) the Tangible Net Worth
of Tenant at the time of any such Permitted Transfer; or
-15-
(3) any corporation, limited partnership,
limited liability partnership, limited liability company or
other business entity acquiring all or substantially all of
Tenant's stock or assets if such entity's Tangible Net Worth
after such acquisition is not less than the greater of (1) the
Tangible Net Worth of Tenant as of the date hereof, or (ii)
the Tangible Net Worth of Tenant at the time of any such
Permitted Transfer.
Tenant shall promptly notify Landlord of any such Permitted Transfer.
Tenant shall remain liable for the performance of all of the obligations of
Tenant hereunder, or if Tenant no longer exists because of a merger,
consolidation, or acquisition, the surviving or acquiring entity shall expressly
assume in writing the obligations of Tenant hereunder. Additionally, the
Permitted Transferee shall comply with all of the terms and conditions of this
Lease, including the Permitted Use, and the use of the Premises by the Permitted
Transferee may not violate any other agreements affecting the Premises, the
Building, Landlord or other tenants of the Building. At least 30 days after the
effective date of any Permitted Transfer, Tenant agrees to furnish Landlord with
copies of the instrument effecting any of the foregoing Transfers and
documentation establishing Tenant's satisfaction of the requirements set forth
above applicable to any such Transfer. The occurrence of a Permitted Transfer
shall not waive Landlord's rights as to any subsequent Transfers. "Tangible Net
Worth" means the excess of total assets over total liabilities, in each case as
determined in accordance with generally accepted accounting principles
consistently applied ("GAAP"), excluding, however, from the determination of
total assets all assets which would be classified as intangible assets under
GAAP including, without limitation, goodwill, licenses, patents, trademarks,
trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted
Transferee to any person other than a Permitted Transferee shall be subject to
Landlord's prior written consent (which Landlord may grant or deny in its sole
discretion).
11. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY
(a) INSURANCE. Tenant shall maintain throughout the Term
the following insurance policies: (1) commercial general liability insurance in
amounts of $3,000,000 per occurrence or such other amounts as Landlord may from
time to time reasonably require, insuring Tenant, Landlord. Landlord's agents
and their respective Affiliates against all liability for injury to or death of
a person or persons or damage to property arising from the use and occupancy of
the Premises, (2) insurance covering the full value of Tenant's property and
improvements, and other property (including property of others) in the Premises,
(3) contractual liability insurance sufficient to cover Tenant's indemnity
obligations hereunder (but only if such contractual liability insurance is not
already included in Tenant's commercial general liability insurance policy), (4)
worker's compensation insurance, containing a waiver of subrogation endorsement
reasonably acceptable to Landlord, and (5) business interruption insurance.
Tenant's insurance shall provide primary coverage to Landlord when any policy
issued to Landlord provides duplicate or similar coverage, and in such
circumstance Landlord's policy will be excess over Tenant's policy. Tenant shall
furnish to Landlord certificates of such insurance and
-16-
such other evidence reasonably satisfactory to Landlord of the maintenance of
all insurance coverages required hereunder, and Tenant shall use reasonable
efforts to obtain a written obligation on the part of each insurance company to
notify Landlord at least 30 days before cancellation or a material change of any
such insurance policies. All such insurance policies shall be in form, and
issued by companies, reasonably satisfactory to Landlord.
(b) WAIVER OF NEGLIGENCE; NO SUBROGATION. Landlord and
Tenant each waives any claim it might have against the other for any injury to
or death of any person or persons or damage to or theft, destruction, loss, or
loss of use of any property (a "Loss"), to the extent the same is insured
against under any insurance policy that covers the Building, the Premises,
Landlord's or Tenant's fixtures, personal property, leasehold improvements, or
business, or is required to be insured against under the terms hereof,
regardless of whether the negligence of the other party caused such Loss;
however, Landlord's waiver shall not include any deductible amounts on insurance
policies carried by Landlord. Each party shall cause its insurance carrier to
endorse all applicable policies waiving the carrier's rights of recovery under
subrogation or otherwise against the other party.
(c) INDEMNITY. Subject to Section 11(b), Tenant shall
defend, indemnify, and hold harmless Landlord and its representatives and agents
from and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorneys' fees) arising from (1)
any Loss arising from any occurrence on the Premises (other than any Loss
arising out of a breach of Tenant's obligations under Section 25(t), which shall
be subject to the indemnity in such section) or (2) Tenant's failure to perform
its obligations under this Lease, except to the extent caused by the negligence
or fault of Landlord or its agents. This indemnity provision shall survive
termination or expiration of this Lease. If any proceeding is filed for which
indemnity is required hereunder, Tenant agrees, upon request therefore, to
defend the indemnified party in such proceeding at its sole cost utilizing
counsel satisfactory to the indemnified party.
(d) LANDLORD'S INSURANCE. Landlord shall carry throughout
the Term of this Lease (1) fire and extended coverage insurance on the Building
for at least 90% of the full replacement value, and (ii) commercial general
liability insurance with respect to all common areas of the Building.
12. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE
(a) SUBORDINATION. This Lease shall be subordinate to any
deed of trust, mortgage, or other security instrument, or any ground lease,
master lease, or primary lease, that now or hereafter covers all or any part of
the Premises (the mortgagee under any such mortgage or the lessor under any such
lease is referred to herein as a "LANDLORD'S MORTGAGEE"). Any Landlord's
Mortgagee may elect at any time, unilaterally, to make this Lease superior to
its mortgage, ground lease, or other interest in the Premises by so notifying
Tenant in writing.
-17-
(b) ATTORNMENT. Tenant shall attorn to any party
succeeding to Landlord's interest in the Premises, whether by purchase,
foreclosure, deed in lieu of foreclosure, power of sale, termination of lease,
or otherwise, upon such party's request, and shall execute such agreements
confirming such attornment as such party may reasonably request.
(c) NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek
to enforce any remedy it may have for any default on the part of Landlord
without first giving written notice by certified mail, return receipt requested,
specifying the default in reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant, and affording such Landlord's Mortgagee a
reasonable opportunity to perform Landlord's obligations hereunder.
(d) LANDLORD'S MORTGAGEE'S PROTECTION PROVISIONS. If
Landlord's Mortgagee shall succeed to the interest of Landlord under this Lease,
Landlord's Mortgagee shall not be: (1) liable for any act or omission of any
prior lessor (including Landlord); (2) bound by any rent or additional rent or
advance rent which Tenant might have paid for more than the current month to any
prior lessor (including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; (3) bound by any security or advance
rental deposit made by Tenant which is not delivered or paid over to Landlord's
Mortgagee and with respect to which Tenant shall look solely to Landlord for
refund or reimbursement; (4) bound by any termination, amendment or modification
of this Lease made without Landlord's Mortgagee's consent and written approval.
except for those terminations, amendments and modifications permitted to be made
by Landlord without Landlord's Mortgagee's consent pursuant to the terms of the
loan documents between Landlord and Landlord's Mortgagee; (5) subject to the
defenses which Tenant might have against any prior lessor (including Landlord)
except as expressly provided for in this Lease; and (6) subject to the offsets
which Tenant might have against any prior lessor (including Landlord) except for
those offset rights which (A) are expressly provided in this Lease, (B) relate
to periods of time following the acquisition of the Building by Landlord's
Mortgagee, and (C) Tenant has provided written notice to Landlord's Mortgagee
and provided Landlord's Mortgagee a reasonable opportunity to cure the event
giving rise to such offset event. Landlord's Mortgagee shall have no liability
or responsibility under or pursuant to the terms of this Lease or otherwise
after it ceases to own an interest in the Building. Nothing in this Lease shall
be construed to require Landlord's Mortgagee to see to the application of the
proceeds of any loan, and Tenant's agreements set forth herein shall not be
impaired on account of any modification of the documents evidencing and securing
any loan.
(e) SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT. Simultaneously upon Tenant's and Landlord's respective execution of
this Lease, Tenant and Landlord shall execute a Subordination, Non-Disturbance
and Attornment Agreement in the form attached hereto as Exhibit L. Landlord
shall return a fully executed Subordination, Non-disturbance and Attornment
Agreement in the form attached hereto as Exhibit L from the Lender named therein
as soon as reasonably
-18-
possible. Landlord shall use reasonable efforts to obtain a so-called
"subordination, nondisturbance and attornment agreement" from any future
Landlord's Mortgagee.
13. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations of the Building which are attached hereto as Exhibit C. Landlord
may, from time to time, change such rules and regulations for the safety, care,
or cleanliness of the Building and related facilities, provided that such
changes are applicable to all tenants of the Building and will not unreasonably
interfere with Tenant's use of the Premises. Tenant shall be responsible for the
compliance with such rules and regulations by each Tenant Party.
To the extent there are an inconsistencies between the provisions of
this Lease and the rules and regulations of the Building, the provisions of this
Lease shall control. Notwithstanding any provisions of the rules and regulations
to the contrary set forth on Exhibit C: (a) Tenant may hang pictures for
decorative purposes only on the walls of the Premises, but shall use reasonable
efforts to minimize any damage caused thereto; (b) Tenant may install four (4)
snack and soda vending machines within the Premises; and (c) Tenant may have ice
and mineral and/or bottled water delivered to the Premises by reputable vendors
during normal business hours.
14. CONDEMNATION.
(a) TOTAL TAKING. If the entire Building or Premises are
taken by right of eminent domain or conveyed in lieu thereof (a "TAKING"), this
Lease shall terminate as of the date of the Taking.
(b) PARTIAL TAKING- TENANT'S RIGHTS. If any part of the
Building becomes subject to a Taking and such Taking will prevent Tenant from
conducting its business in the Premises in a manner reasonably comparable to
that conducted immediately before such Taking for a period of more than 90 days,
then Tenant may terminate this Lease as of the date of such Taking by giving
written notice to Landlord within 30 days after the Taking, and Rent shall be
apportioned as of the date of such Taking. If Tenant does not terminate this
Lease, then Rent shall be abated on a proportionate basis as to that portion of
the Premises rendered untenantable by the Taking.
(c) PARTIAL TAKING-LANDLORD'S RIGHTS. If any material
portion, but less than all, of the Building becomes subject to a Taking, or if
Landlord is required to pay any of the proceeds received for a Taking to a
Landlord's Mortgagee, then Landlord may terminate this Lease by delivering
written notice thereof to Tenant within 30 days after such Taking, and Rent
shall be apportioned as of the date of such Taking. If Landlord does not so
terminate this Lease, then this Lease will continue, but if any portion of the
Premises has been taken, Rent shall ▇▇▇▇▇ as provided in the last sentence of
Section 14(b).
-19-
(d) AWARD. If any Taking occurs, then Landlord shall
receive the entire award or other compensation for the land on which the
Building is situated, the Building, and other improvements taken, and Tenant may
separately pursue a claim (to the extent it will not reduce Landlord's award)
against the condemnor for the value of Tenant's personal property which Tenant
is entitled to remove under this Lease, moving costs, loss of business, and
other claims it may have.
15. FIRE OR OTHER CASUALTY
(a) REPAIR ESTIMATE. If the Premises or the Building are
damaged by fire or other casualty (a "CASUALTY"), Landlord shall, within 90 days
after such Casualty, deliver to Tenant a good faith estimate (the "DAMAGE
NOTICE") of the time needed to repair the damage caused by such Casualty.
(b) LANDLORD'S AND TENANT'S RIGHTS. If a material portion
of the Premises or the Building is damaged by Casualty such that Tenant is
prevented from conducting its business in the Premises in a manner reasonably
comparable to that conducted immediately before such Casualty and Landlord
estimates that the damage caused thereby cannot be repaired within 210 days
after the Casualty, then Tenant may terminate this Lease by delivering written
notice to Landlord of its election to terminate within 30 days after the Damage
Notice has been delivered to Tenant. If Tenant does not so timely terminate this
Lease, then (subject to Section 15(c)) Landlord shall repair the Building or the
Premises, as the case may be, as provided below, and Rent for the portion of the
Premises rendered untenantable by the damage shall be abated on a proportionate
basis from the date of damage until the completion of the repair, unless a
Tenant Party caused such damage, in which case, Tenant shall continue to pay
Rent without abatement.
(c) LANDLORD'S RIGHTS. If a Casualty damages a material
portion of the Building, and Landlord makes a good faith determination that
restoring the Premises would be uneconomical, or if Landlord is required to pay
any insurance proceeds arising out of the Casualty to a Landlord's Mortgagee,
then Landlord may terminate this Lease by giving written notice of its election
to terminate within 30 days after the Damage Notice has been delivered to
Tenant, and Basic Rent and Additional Rent shall be abated as of the date of the
Casualty.
(d) REPAIR OBLIGATION. If neither party elects to
terminate this Lease following a Casualty, then Landlord shall, within a
reasonable time after such Casualty, begin to repair the Building and the
Premises and shall proceed with reasonable diligence to restore the Building and
Premises to substantially the same condition as they existed immediately before
such Casualty; however, Landlord shall not be required to repair or replace any
of the furniture, equipment, fixtures, and other improvements (with exception of
the improvements or a portion of the improvements; as the case may be, which are
constructed with the Construction Allowance) which may have been placed by, or
at the request of, Tenant or other occupants in the Building or the Premises,
and Landlord's obligation to repair or restore the Building or Premises shall be
limited to the extent of the insurance proceeds actually received by Landlord
for the Casualty in question. If the Premises are not substantially restored
within 210 days after a Casualty (notwithstanding
-20-
anything contained in Section 25(c) to the contrary, such 210 day period may be
extended for a period not to exceed 180 additional days due to force majeure
events), Tenant shall have the right to terminate this Lease upon at least 30
days prior written notice; provided, however, if Landlord substantially restores
the Premises within said thirty-day period, Tenant's termination notice shall be
null and void and the provisions of this Lease shall remain in Rill force and
effect.
16. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture, or fixtures placed by
Tenant in the Premises. If any taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and Landlord elects to pay the
same, or if the assessed value of Landlord's property is increased by inclusion
of such personal property, furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to Landlord, upon written
demand, the part of such taxes for which Tenant is primarily liable hereunder:
however, Landlord shall not pay such amount if Tenant notifies Landlord that it
will contest the validity or amount of such taxes before Landlord makes such
payment, and thereafter diligently proceeds with such contest in accordance with
law and if the non-payment thereof does not pose a threat of loss or seizure of
the Building or interest of Landlord therein or impose any fee or penalty
against Landlord.
17. EVENTS OF DEFAULT. Each of the following occurrences shall be
an "Event of Default ":
(a) Tenant's failure to pay Rent within five days after
Landlord has delivered notice to Tenant that the same is due; however, an Event
of Default shall occur hereunder without any obligation of Landlord to give any
notice if Landlord has given Tenant written notice under this Section 17(a) on
two occasions during the twelve (12) month interval preceding such failure by
Tenant;
(b) For more than sixty (60) consecutive days or more
than sixty (60) days in a one hundred fifty (150) day period, Tenant abandons
the Premises or any substantial portion thereof;
(c) Tenant fails to comply with the Permitted Use set
forth herein and the continuance of such failure for a period of five (5) days
after Landlord has delivered to Tenant written notice thereof,
(d) Tenant fails to provide any estoppel certificate
within the time period required under Section 25(e) and such failure shall
continue for five (5) days after written notice thereof from Landlord to Tenant;
(e) Tenant's failure to perform, comply with, or observe
any other agreement or obligation of Tenant under this Lease and the continuance
of such failure for a period of more than 30 days after Landlord has delivered
to Tenant written notice thereof; provided that if the default is of such a
nature that it may not be reasonably cured within 30 days, then no Event of
Default shall occur hereunder if Tenant commences
-21-
curing within such 30 day period and thereafter diligently and continuously
pursues such cure to completion within a period of not more than 60 days after
the delivery of such notice; and
(f) The filing of a petition by or against Tenant (the
term "Tenant" shall include, for the purpose of this Section 17(f), any
guarantor of Tenant's obligations hereunder) (1) in any bankruptcy or other
insolvency proceeding; (2) seeking any relief under any state or federal debtor
relief law; (3) for the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest in this Lease;
or (4) for the reorganization or modification of Tenant's capital structure;
however, if such a petition is filed against Tenant, then such filing shall not
be an Event of Default unless Tenant fails to have the proceedings initiated by
such petition dismissed within 90 days after the filing thereof.
17A. LANDLORD'S DEFAULT. Landlord shall in no event be in default
in the performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within 30 days after
notice by Tenant to Landlord, which notice shall specify the nature of such
failure of performance; provided, however, that Landlord shall not be in default
hereunder if any such failure of performance is of such a nature that Landlord
cannot reasonably remedy the same within such 30 day period, Landlord commences
within such 30 day period to cure such failure of performance and thereafter in
good faith and with diligence and continuity prosecutes such cure to completion,
subject to unavoidable delays.
18. REMEDIES. Upon an Event of Default, Landlord may, in addition
to all other rights and remedies afforded Landlord hereunder, take any of the
following actions:
(a) Terminate this Lease by giving Tenant written notice
thereof, in which event Tenant shall pay to Landlord the sum of (1) all Rent
accrued hereunder through the date of termination, (2) all amounts due under
Section 19(a), and (3) an amount equal to (A) the total Rent that Tenant would
have been required to pay for the remainder of the Term plus Landlord's estimate
of aggregate expenses of reletting to the Premises, discounted to present value
at a per annum rate equal to the "Prime Rate" as published on the date this
Lease is terminated by The Wall Street Journal, Northeast Edition, in its
listing of "Money Rates" minus one percent, minus (B) the then present fair
rental rate value of the Premises for such period. similarly discounted; or
(b) Terminate Tenant's right to possess the Premises
without terminating this Lease by giving written notice thereof to Tenant, in
which event Tenant shall pay to Landlord (1) all Rent and other amounts accrued
hereunder to the date of termination of possession, (2) all amounts due from
time to time under Section 19(a), and (3) all Rent and other net sums required
hereunder to be paid by Tenant during the remainder of the Term as they would
become due under the terms of this Lease, diminished by any net sums thereafter
received by Landlord through reletting the Premises during such period, after
deducting all out-of-pocket costs incurred by Landlord in reletting the
Premises. Landlord shall use reasonable efforts to relet the Premises on such
terms as Landlord in its sole discretion may determine (including a
-22-
term different from the Term, rental concessions, and alterations to, and
improvement of, the Premises); however, Landlord shall not be obligated to relet
the Premises before leasing other portions of the Building. Landlord shall not
be liable for, nor shall Tenant's obligations hereunder be diminished because
of, Landlord's failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring an action against Tenant to
collect amounts due by Tenant, without the necessity of Landlord's waiting until
the expiration of the Term. Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this Lease, all actions taken
by Landlord to dispossess or exclude Tenant from the Premises shall be deemed to
be taken under this Section 18(b). If Landlord elects to proceed under this
Section 18(b), it may at any time elect to terminate this Lease under Section
18(a).
Any and all remedies set forth in this Lease: (i) shall be in addition
to any and all other remedies Landlord may have at law or in equity; (ii) shall
be cumulative; and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future. Notwithstanding the foregoing, Landlord shall only recover its
damages allowed hereunder once.
19. PAYMENT BY TENANT; NON-WAIVER
(a) PAYMENT BY TENANT. Upon any Event of Default, Tenant
shall pay to Landlord all costs incurred by Landlord (including court costs and
reasonable attorneys' fees and expenses) in (1) obtaining possession of the
Premises, (2) removing and storing Tenant's or any other occupant's property,
(3) repairing, restoring, altering, remodeling, or otherwise putting the
Premises into condition acceptable to a new tenant, (4) if Tenant is
dispossessed of the Premises and this Lease is not terminated, reletting all or
any part of the Premises (including brokerage commissions, cost of tenant finish
work, and other costs incidental to such reletting), (5) performing Tenant's
obligations which Tenant failed to perform, and (6) enforcing, or advising
Landlord of, its rights, remedies, and recourses arising out of the Event of
Default. To the full extent permitted by law. Landlord and Tenant agree the
federal and state courts of the state in which the Premises are located shall
have exclusive jurisdiction over any matter relating to or arising from this
Lease and the parties' rights and obligations under this Lease.
(b) NO WAIVER. Landlord's acceptance of Rent following an
Event of Default shall not waive Landlord's rights regarding such Event of
Default. No waiver by Landlord or Tenant of any violation or breach of any of
the terms contained herein shall waive Landlord's or Tenant's rights regarding
any future violation of such term. Landlord's acceptance of any partial payment
of Rent shall not waive Landlord's rights with regard to the remaining portion
of the Rent that is due, regardless of any endorsement or other statement on any
instrument delivered in payment of Rent or any writing delivered in connection
therewith; accordingly, Landlord's acceptance of a partial
-23-
payment of Rent shall not constitute an accord and satisfaction of the full
amount of the Rent that is due.
20. LANDLORD'S LIEN. Intentionally omitted, provided that the
deletion of this Section shall not be construed to be a waiver of Landlord's
lien rights provided by law, if any.
21. SURRENDER OF PREMISES. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord, except upon expiration of this Lease or earlier termination by Tenant
pursuant to the provisions of this Lease. At the expiration or termination of
this Lease, Tenant shall deliver to Landlord the Premises with all improvements
located therein in good repair and condition, free of Hazardous Materials placed
on the Premises during the Term, broom-clean, reasonable wear and tear (and
condemnation and Casualty damage not caused by Tenant, as to which Sections 14
and 15 shall control) excepted, and shall deliver to Landlord all keys to the
Premises. Provided that Tenant has performed all of its obligations hereunder,
Tenant shall remove all trade fixtures which have not become part of the
Premises, equipment, furniture, and personal property placed in the Premises by
Tenant, and all such alterations, additions, improvements and wiring which, when
approved by Landlord, were required to be removed from the Premises at the
earlier expiration or termination of the Term of this Lease, and may remove all
such fixtures, alterations, additions, improvements and wiring which, when
approved by Landlord, were permitted to be removed by Tenant from the Premises
at the earlier expiration or termination of the Term of this Lease.
Additionally, at Landlord's option, Tenant shall remove such alterations,
additions, improvements, trade fixtures, personal property, equipment, wiring,
cabling, and furniture as Landlord may request; however, Tenant shall not be
required to remove any addition or improvement to the Premises if Landlord has
specifically agreed in writing that the improvement or addition in question need
not be removed. Tenant shall repair all damage caused by such removal. All items
not so removed shall, at Landlord's option, be deemed to have been abandoned by
Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed
of by Landlord without notice to Tenant and without any obligation to account
for such items; any such disposition shall not be considered a strict
foreclosure or other exercise of Landlord's rights in respect of the security
interest granted under Section 20. The provisions of this Section 21 shall
survive the end of the Term.
22. HOLDING OVER. If Tenant fails to vacate the Premises at the
end of the Term, then Tenant shall be a tenant at will and, in addition to all
other damages and remedies to which Landlord may be entitled for such holding
over, Tenant shall pay, in addition to the other Rent, a daily Basic Rent equal
to the greater of (a) 150% of the daily Basic Rent payable during the last month
of the Term, or (b) 125% of the prevailing rental rate in the Building for
similar space. The provisions of this Section 22 shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Landlord provided herein
or at law. If Tenant fails to surrender the Premises upon the termination or
expiration of this Lease, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord
harmless from all
-24-
loss, costs (including reasonable attorneys' fees) and liability resulting from
such failure, including, without limiting the generality of the foregoing, any
claims made by any succeeding tenant founded upon such failure to surrender, and
any lost profits to Landlord resulting therefrom.
23. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the
exercise of such rights does not unreasonably interfere with Tenant's occupancy
of the Premises, Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs,
alterations, additions, changes, or improvements, whether structural or
otherwise, in and about the Building, or any part thereof, to enter upon the
Premises (at reasonable times and after giving Tenant reasonable notice thereof,
which may be oral notice, except in cases of real or apparent emergency, in
which case no notice shall be required) and, during the continuance of any such
work, to temporarily close doors, entryways, public space, and corridors in the
Building; to interrupt or temporarily suspend Building services and facilities;
to change the name of the Building; and to change the arrangement and location
of entrances or passageways, doors, and doorways, corridors, elevators, stairs,
restrooms, or other public parts of the Building;
(b) To take such reasonable measures as Landlord deems
advisable for the security of the Building and its occupants; evacuating the
Building for cause, suspected cause, or for drill purposes; temporarily denying
access to the Building; and closing the Building after normal business hours and
on Sundays and holidays, subject, however, to Tenant's right to enter when the
Building is closed after normal business hours under such reasonable regulations
as Landlord may prescribe from time to time; and
(c) To enter the Premises at reasonable hours and upon
reasonable prior notice (which may be oral notice) to show the Premises to
prospective purchasers, lenders, or, during the last 12 months of the Term,
tenants.
24. INTENTIONALLY OMITTED.
25. MISCELLANEOUS.
(a) LANDLORD TRANSFER. Landlord may transfer any portion
of the Building and any of its rights under this Lease. If Landlord assigns its
rights under this Lease, then Landlord shall thereby be released from any
further obligations hereunder arising after the date of transfer, provided that
the assignee assumes Landlord's obligations hereunder in writing.
(b) LANDLORD'S LIABILITY. The liability of Landlord to
Tenant for any default by Landlord under the terms of this Lease shall be
limited to Tenant's actual direct. but not consequential, damages therefore and
shall be recoverable only from the interest of Landlord in the Building, and
Landlord shall not be personally liable for any deficiency. This Section shall
not limit any remedies which Tenant may have for Landlord's defaults which do
not involve the personal liability of Landlord.
-25-
(c) FORCE MAJEURE. Other than for Tenant's obligations
under this Lease that can be performed by the payment of money (e.g., payment of
Rent and maintenance of insurance) and Landlord's delay in the delivery of
possession of the Premises to Tenant, whenever a period of time is herein
prescribed for action to be taken by either party hereto, such party shall not
be liable or responsible for, and there shall be excluded from the computation
of any such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws, regulations, or
restrictions, or any other causes of any kind whatsoever which are beyond the
control of such party.
(d) BROKERAGE. Neither Landlord nor Tenant has dealt with
any broker or agent in connection with the negotiation or execution of this
Lease other than The Columbia Group Realty Advisors, Inc., whose fee shall be
paid by Tenant in accordance with a separate agreement. Tenant and Landlord
shall each indemnify the other against all costs, expenses, attorneys' fees, and
other liability for commissions or other compensation claimed by any broker or
agent claiming the same by, through, or under the indemnifying party.
(e) ESTOPPEL CERTIFICATES. From time to time, Tenant
shall furnish to any party designated by Landlord, within ten days after
Landlord has made a request therefore, a certificate signed by Tenant confirming
and containing such factual certifications and representations as to this Lease
as Landlord may reasonably request. Unless otherwise required by Landlord's
Mortgagee or a prospective purchaser or mortgagee of the Building, the initial
form of estoppel certificate to be signed by Tenant (in substantially the same
form) is attached hereto as Exhibit F. Landlord shall furnish to Tenant, within
a reasonable time after Tenant has made a request therefore, a certificate
signed by Landlord confirming and containing such factual certifications and
representations as to this Lease as Tenant may reasonably request.
(f) NOTICES. All notices and other communications given
pursuant to this Lease shall be in writing and shall be (1) mailed by first
class, United States Mail, postage prepaid, certified. with return receipt
requested, and addressed to the parties hereto at the address specified in the
Basic Lease Information, (2) hand delivered to the intended address, (3) sent by
a nationally recognized overnight courier service, or (4) sent by facsimile
transmission during normal business hours followed by a confirmatory letter sent
in another manner permitted hereunder. All notices shall be effective upon
delivery to the address of the addressee. The parties hereto may change their
addresses by giving notice thereof to the other in conformity with this
provision.
(g) SEPARABILITY. If any clause or provision of this
Lease is illegal, invalid, or unenforceable under present or future laws, then
the remainder of this Lease shall not be affected thereby and in lieu of such
clause or provision, there shall be added as a part of this Lease a clause or
provision as similar in terms to such illegal, invalid, or unenforceable clause
or provision as may be possible and be legal, valid, and enforceable.
-26-
(h) AMENDMENTS; AND BINDING EFFECT. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by Landlord or
Tenant unless such waiver is in writing signed by Landlord or Tenant, as
applicable, and no custom or practice which may evolve between the parties in
the administration of the terms hereof shall waive or diminish the right of
Landlord or Tenant to insist upon the performance by Tenant in strict accordance
with the terms hereof. The terms and conditions contained in this Lease shall
inure to the benefit of and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided. This Lease is for the sole benefit of Landlord and
Tenant, and, other than Landlord's Mortgagee, no third party shall be deemed a
third party beneficiary hereof.
(i) QUIET ENJOYMENT. Provided Tenant has performed all of
its obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the terms and
conditions of this Lease.
(j) NO MERGER. There shall be no merger of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof if
the same person acquires or holds, directly or indirectly, this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(k) NO OFFER. The submission of this Lease to Tenant
shall not be construed as an offer, and Tenant shall not have any rights under
this Lease unless Landlord executes a copy of this Lease and delivers it to
Tenant.
(1) ENTIRE AGREEMENT. This Lease constitutes the entire
agreement between Landlord and Tenant regarding the subject matter hereof and
supersedes all oral statements and prior writings relating thereto. Except for
those set forth in this Lease, no representations, warranties, or agreements
have been made by Landlord or Tenant to the other with respect to this Lease or
the obligations of Landlord or Tenant in connection therewith. The normal rule
of construction that any ambiguities be resolved against the drafting party
shall not apply to the interpretation of this Lease or any exhibits or
amendments hereto.
(m) WAIVER OF JURY TRIAL. To the maximum extent permitted
by law, Landlord and Tenant each waive right to trial by jury in any litigation
arising out of or with respect to this Lease.
(n) GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located.
(o) JOINT AND SEVERAL LIABILITY. If Tenant is comprised
of more than one party, each such party shall be jointly and severally liable
for Tenant's obligations under this Lease.
-27-
(p) FINANCIAL REPORTS. Within 15 days after Landlord's
written request therefore, which request shall not occur more than once in each
calendar year and shall be in anticipation of selling, financing or refinancing
(unless an Event of Default exists hereunder, in which case Landlord may make
periodic requests), Tenant will furnish Tenant's most recent audited financial
statements (including any notes to them) to Landlord, or, if no such audited
statements have been prepared, such other financial statements (and notes to
them) as may have been prepared by an independent certified public accountant
or, failing those, Tenant's internally prepared financial statements. If Tenant
is a publicly traded corporation, Tenant may satisfy its obligations hereunder
by providing to Landlord Tenant's most recent annual and quarterly reports.
Tenant will discuss its financial statements with Landlord. Landlord will not
disclose any aspect of Tenant's financial statements that Tenant designates to
Landlord as confidential except (1) to Landlord's Mortgagee or prospective
purchasers of the Building, (2) in litigation between Landlord and Tenant, and
(3) if required by court order. Tenant shall not be required to deliver the
financial statements required under this Section 25(p) more than once in any
12-month period unless requested by Landlord's Mortgagee or a prospective buyer
or lender of the Building or an Event of Default occurs.
(q) LANDLORD'S FEES. Whenever Tenant requests Landlord to
take any action not required of it hereunder or give any consent required or
permitted under this Lease, Tenant will reimburse Landlord for Landlord's
reasonable out-of-pocket costs payable to third parties and incurred by Landlord
in reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within ten days after
Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action.
(r) TELECOMMUNICATIONS. Tenant and its telecommunications
companies, including but not limited to local exchange telecommunications
companies and alternative access vendor services companies shall have no right
of access to and within the Building, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless, and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent (which consent shall not
be unreasonably withheld or delayed). Notwithstanding any provisions of this
Section 25(r) to the contrary, and provided Tenant obtains Landlord's prior
written consent as aforesaid, Tenant may make or perform certain installation
affecting Tenant's telecommunications systems provided that: (i) any such
installations only affect the Premises; (ii) no such installations affect any of
the Building mechanical, electrical or plumbing systems; (iii) Tenant shall
promptly repair and restore any damage caused by any such installation; and (iv)
upon Landlord's request, at the earlier termination or expiration of this Lease,
Tenant shall restore the Premises to the condition that
-28-
existed on the date of this Lease if, at the time of its approval of the same.
Landlord requires that any and/or all such installations be removed at the
earlier termination or expiration of this Lease.
(s) CONFIDENTIALITY. Each party acknowledges that the
terms and conditions of this Lease are to remain confidential for the other
party's benefit, and may not be disclosed by a party to anyone by any manner or
means, directly or indirectly, without the other party's prior written consent,
other than a Landlord Party or a Tenant Party, and Tenant's or Landlord's, as
the case may be, lenders, accountants, attorneys, brokers, investors,
underwriters and other advisors on a need to know basis only provided such
advisors agree to keep the terms and conditions of this Lease confidential or to
the extent required to be disclosed by Landlord or Tenant (or its officers,
employees, agents and/or consultants), as the case may be, in connection with
any litigation proceeding and/or in order to comply with any federal, state or
municipal laws, regulations, rules, ordinances and/or with a judicial or
administrative directive and/or any rules or regulations of any stock exchange.
The consent by a party to any disclosures shall not be deemed to be a waiver on
the part of such party of any prohibition against any future disclosure.
(t) HAZARDOUS MATERIALS. The term "HAZARDOUS MATERIALS"
means any substance, material, or waste which is now or hereafter classified or
considered to be hazardous, toxic, or dangerous under any Law relating to
pollution or the protection or regulation of human health, natural resources or
the environment, or poses or threatens to pose a hazard to the health or safety
of persons on the Premises or in the Building. Tenant shall not use, generate,
store, or dispose of, or permit the use, generation, storage or disposal of
Hazardous Materials on or about the Premises or the Building except in a manner
and quantity necessary for the ordinary performance of Tenant's business, and
then in compliance with all Laws. If Tenant breaches its obligations under this
Section 25(t), Landlord may immediately take any and all action reasonably
appropriate to remedy the same, including taking all appropriate action to clean
up or remediate any contamination resulting from Tenant's use, generation,
storage or disposal of Hazardous Materials. Tenant shall defend, indemnify, and
hold harmless Landlord and its representatives and agents from and against any
and all claims, demands, liabilities, causes of action, suits, judgments,
damages and expenses (including reasonable attorneys' fees and cost of clean up
and remediation) arising from Tenant's failure to comply with the provisions of
this Section 25(t). This indemnity provision shall survive termination or
expiration of the Lease.
(u) LIST OF EXHIBITS. All exhibits and attachments
attached hereto are incorporated herein by this reference.
Exhibit A Outline of Premises
Exhibit B Legal Description of Building
Exhibit C Building Rules and Regulations
Exhibit D Intentionally Omitted
Exhibit E Intentionally Omitted
Exhibit F Form of Tenant Estoppel Certificate
-29-
Exhibit G Parking
Exhibit H Intentionally Omitted
Exhibit I Intentionally Omitted
Exhibit J Intentionally Omitted
Exhibit K Janitorial Specifications
Exhibit L Subordination, Non-Disturbance and Attornment Agreement
(v) TIME OF ESSENCE. Time is of the essence of this Lease
and each and all of its provisions.
(w) NOTICE OF LEASE. Tenant agrees not to record this
Lease and, subject to the provisions of Section 25(s) above, to keep the terms
of this Lease confidential, but each party hereto agrees, at the request of the
others to execute a so-called Notice of Lease in recordable form complying with
applicable law and reasonably satisfactory to Landlord's attorneys. In no event
shall such document set forth the Rent or other charges payable by Tenant
hereunder.
(x) FAILURE OF TENANT TO CONTINUOUSLY OCCUPY THE
PREMISES. If, for more than sixty (60) consecutive days or more than sixty (60)
days in a one hundred fifty (150) day period, Tenant (1) vacates the Premises or
any substantial portion thereof or (2) fails to continuously operate its
business in the Premises, Landlord may terminate this Lease upon giving written
notice to Tenant as of the date specified in such notice. If Landlord terminates
this Lease, then this Lease shall terminate and neither party shall have any
further obligations hereunder as of the termination date except as otherwise
provided herein and Tenant shall pay to Landlord all Rent accrued through the
termination date. Thereafter, Landlord may lease the Premises (or any portion
thereof) to any person without liability to Tenant.
26. OTHER PROVISIONS. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY
IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, (i) TENANT'S
OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE
PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND (ii)
TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-30-
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this Lease Agreement to be duly executed as
a Massachusetts instrument under seal as of the day and year first above
written.
TENANT:
ART TECHNOLOGY GROUP,
INC., a Delaware corporation
By: ___________________________
Name: _____________________
Title: ____________________
LANDLORD:
▇▇▇▇▇▇▇▇▇ BUILDING LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: IBUS ▇▇▇▇▇▇▇▇▇ Cambridge, Inc., its
general partner
By: __________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
-31-
EXHIBIT A
OUTLINE OF PREMISES
A-1
EXHIBIT B
LEGAL DESCRIPTION OF BUILDING
Beginning at a point, said point being the intersection of the westerly
sideline of First Street and the northerly sideline of Thorndike Street in the
City of Cambridge, County of Middlesex, Commonwealth of Massachusetts, bounded
and described as follows:
80(degree)- 28' - 11" W Along the northerly sideline of Thorndike Street a
distance of Four Hundred and Thirty Eight Hundredths
feet (400.38') to a point, said point being the
intersection of the northerly sideline of Thorndike
Street and the easterly sideline of Second Street,
thence turning and running;
N 09(degree)- 31' - 49" E Along the easterly sideline of Second Street a
distance of Sixty and no Hundredths feet (60.00'), to
a point, thence turning and running;
S 80(degree)- 28' - 11" E A distance of One Hundred and No Hundredths feet
(100.00') to a point, thence turning and running;
N 09" -36' -54" E A distance of One Hundred Forty and Seventy-Two
Hundredths feet (140.72') to a point, said being
along the southerly sideline of ▇▇▇▇ Street, thence
turning and running;
S 80(degree)- 21' - 10" E Along said southerly sideline of ▇▇▇▇ Street a
distance of Three Hundred and No Hundredths feet
(300.00') to a point, said point being the
intersection of said southerly sideline of ▇▇▇▇
Street and the westerly sideline of First Street,
thence turning and running;
S 09(degree)-28' -49" W Along said westerly sideline of First Street a
distance of Two Hundred and Eleven Hundredths feet
(200.11') to a point of beginning.
Appurtenant to this parcel are leasehold parking rights as set forth in
a lease dated November 18, 1985 by and between Charlesport Limited Partnership
and the City of Cambridge a Notice of which was recorded in Deeds at Book 18968,
Page 68 for 250 parking spaces in Cambridge and leasehold parking rights as set
forth in a Lease dated March 10, 1985 made by and between the City of Cambridge
and Charlesport Limited Partnership, a Notice of which was recorded in Deeds at
Book 16059, Page 516.
B-1
EXHIBIT C
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
l. Sidewalks, doorways, vestibules, halls, stairways, and other
similar areas shall not be obstructed by tenants or used by any tenant for
purposes other than ingress and egress to and from their respective leased
premises and for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or
affixed on or to any windows or doors or other part of the Building without the
prior written consent of Landlord. No nails, hooks or screws shall be driven or
inserted in any part of the Building except by Building maintenance personnel.
No curtains or other window treatments shall be placed between the glass and the
Building standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory
for all tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
6. Movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by tenants of any bulky material, merchandise
or materials which require use of elevators or stairways, or movement through
the Building entrances or lobby shall be conducted under Landlord's supervision
at such times and in such a manner as Landlord may reasonably require. Each
tenant assumes all risks of and shall be liable for all damage to articles moved
and injury to persons or public engaged or not engaged in such movement,
including equipment, property and personnel of Landlord if damaged or injured as
a result of acts in connection with carrying out this service for such tenant.
7. Landlord may prescribe weight :imitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner acceptable to
Landlord which may
C-1
include the use of such supporting devices as Landlord may require. All damages
to the Building caused by the installation or removal of any property of a
tenant, or done by a tenant's property while in the Building, shall be repaired
at the expense of such tenant.
8. Corridor doors, when not in use, shall be kept closed. Nothing
shall be swept or thrown into the corridors, halls, elevator shafts or
stairways. No birds or animals shall be brought into or kept in, on or about any
tenant's leased premises. No portion of any tenant's leased premises shall at
any time be used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping
its leased premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
10. To ensure orderly operation of the Building, no ice, mineral
or other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
11. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment)
shall be operated by any tenant on its leased area without Landlord's prior
written consent, nor shall any tenant use or keep in the Building any flammable
or explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
14. No vending or dispensing machines of any kind may be
maintained in any leased premises without the prior written permission of
Landlord.
15. Tenant shall not conduct any activity on or about the Premises
or Building which will draw pickets, demonstrators, or the like.
16. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expense of
the owner or driver. Landlord may place a "boot" on the vehicle to immobilize it
and may levy a charge of $50.00 to remove the "boot." Tenant shall indemnify,
hold and save harmless Landlord of any liability arising from the towing or
booting of any vehicles belonging to a Tenant Party.
C-2
17. No tenant may enter into phone rooms, electrical rooms,
mechanical rooms, or other service areas of the Building unless accompanied by
Landlord or the Building manager.
C-3
EXHIBIT D
INTENTIONALLY OMITTED
D-1
EXHIBIT E
INTENTIONALLY OMITTED
E-1
EXHIBIT F
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned is the Tenant under the Lease (defined below) between
__________ a __________, as Landlord, and the undersigned as Tenant, for the
Premises on the __________________ floor(s) of the office building located at
______________, ______________and commonly known as __________, and hereby
certifies as follows:
1. The Lease consists of the original Lease Agreement dated as of
________, 200_ between Tenant and Landlord [`s predecessor-in-interest] and the
following amendments or modifications thereto (if none, please state "none"):
The documents listed above are herein collectively referred to as the "Lease"
and represent the entire agreement between the parties with respect to the
Premises. All capitalized terms used herein but not defined shall be given the
meaning assigned to them in the Lease.
2. The Lease is in full force and effect and has not been
modified, supplemented or amended in any way except as provided in Section 1
above.
3. The Term commenced on _______, 200__ and the Term expires,
excluding any renewal options, on _________, 200__, and Tenant has no option to
purchase all or any part of the Premises or the Building or, except as expressly
set forth in the Lease, any option to terminate or cancel the Lease.
4. Tenant currently occupies the Premises described in the Lease
and Tenant has not transferred, assigned, or sublet any portion of the Premises
nor entered into any license or concession agreements with respect thereto
except as follows (if none, please state "none"):
5. All monthly installments of Basic Rent, all Additional Rent
and all monthly installments of estimated Additional Rent have been paid , when
due through ________. The current monthly installment of Basic Rent is
$_____________.
6. All conditions of the Lease to be performed by Landlord
necessary to the enforceability of the Lease have been satisfied and Landlord is
not in default thereunder. In addition, Tenant has not delivered any notice to
Landlord regarding a default by Landlord thereunder.
7. As of the date hereof, there are no existing defenses or
offsets, or, to the undersigned's knowledge, claims or any basis for a claim,
that the undersigned has against Landlord and no event has occurred and no
condition exists, which, with the giving of notice or the passage of time, or
both, will constitute a default under the Lease.
F-1
8. No rental has been paid more than thirty (30) days in advance
and no security deposit has been delivered to Landlord except as provided in the
Lease.
9. If Tenant is a corporation, partnership or other business
entity, each individual executing this Estoppel Certificate on behalf of Tenant
hereby represents and warrants that Tenant is a duly formed and existing entity
qualified to do business in the state in which the Premises is located and that
Tenant has full right and authority to execute and deliver this Estoppel
Certificate and that each person signing on behalf of Tenant is authorized to do
so.
10. There are no actions pending against Tenant under any
bankruptcy or similar laws of the United States or any state.
11. Other than in compliance with all applicable laws and
incidental to the ordinary course of the use of the Premises, the undersigned
has not used or stored any hazardous substances in the Premises.
12. All tenant improvement work to be performed by Landlord under
the Lease has been completed in accordance with the Lease and has been accepted
by the undersigned and all reimbursements and allowances due to the undersigned
under the Lease in connection with any tenant improvement work have been paid in
full.
13. Tenant acknowledges that this Estoppel Certificate may be
delivered to Landlord, Landlord's Mortgagee or to a prospective mortgagee or
prospective purchaser, and their respective successors and assigns, and
acknowledges that Landlord, Landlord's Mortgagee and/or such prospective
mortgagee or prospective purchaser will be relying upon the statements contained
herein in disbursing loan advances or making a new loan or acquiring the
property of which the Premises are a part and that receipt by it of this
certificate is a condition of disbursing loan advances or making such loan or
acquiring such property.
Executed as of ___________, 200__.
TENANT: _____________________,
a ____________________________
By: __________________________
Name: ________________________
Title: _______________________
F-2
EXHIBIT G
PARKING
Reference is made to that certain Lease Agreement for Parking Spaces in
the East Cambridge Parking Facility, dated November 18, 1985, as amended by a
certain First Amendment of Lease of undated date in January, 1988 and as further
amended by a certain Second Amendment of Lease dated August 19; 1993 and as
affected by that certain extension letter agreement dated May 15, 1995, between
the City of Cambridge, as lessor, and Landlord's predecessor-in-interest,
Charlesport Limited Partnership, as lessee (as so amended and affected, the
"Parking Lease"). Pursuant to the provisions of the Parking Lease, Landlord has
leased from the City of Cambridge certain parking spaces in the garage facility
known as the East Cambridge Parking Facility located at the corner of First
Street and Thorndike Street in Cambridge, Massachusetts (the "Parking Garage").
Landlord hereby subleases to Tenant and Tenant hereby subleases from Landlord
ninety (90) of such parking spaces (on an unassigned, non-reserved basis) during
the Term of this Lease at the current monthly rate provided for in the Parking
Lease, as adjusted from time to time. If Landlord and Tenant agree to expand the
Premises pursuant to the provisions of this Lease or otherwise, Landlord shall
agree to sublease to Tenant, and Tenant shall elect to sublease from Landlord at
the time of any such expansion, one (1) additional parking space for each
additional 1,000 rentable square feet leased by Tenant in accordance with the
provisions of this Exhibit G to the extent any additional parking spaces are
available for sublease. Landlord may, pursuant to Section 13 hereof, establish
rules and regulations regarding the parking spaces in the Parking Garage.
Tenant's sublease of the parking spaces is subject to the terms of the Parking
Lease, as amended form time to time. Tenant acknowledges and agrees to be bound
by every covenant, condition and restriction set forth in the Parking Lease.
Provided Tenant is not in default under this Lease, Landlord shall not terminate
the Parking Lease at least as such Parking Lease relates to the parking spaces
Landlord is subleasing to Tenant hereunder. In the event the Parking Lease is
for any reason terminated before the expiration of this Lease, Tenant's rights
under this Exhibit G shall also terminate as of the effective date of
termination of the Parking Lease, except with respect to the duties and
obligations of Landlord and Tenant, actual or contingent, which have accrued
prior to the date of such termination. If, for any reason, Landlord is unable to
provide all or any portion of the parking spaces to which it is entitled
hereunder. then Tenant's obligation to pay for such spaces shall be abated for
so long as Tenant does not have the use thereof; this abatement shall be in full
settlement of all claims that Tenant might otherwise have against Landlord
because of Landlord's failure or inability to provide Tenant with such parking
spaces.
G-1
EXHIBIT H
INTENTIONALLY OMITTED
H-1
EXHIBIT I
INTENTIONALLY OMITTED
I-1
EXHIBIT J
INTENTIONALLY OMITTED
J-1
EXHIBIT K
JANITORIAL MAINTENANCE
1. SPECIFIC SCOPE OF SERVICES
a. LOBBY AND CORRIDORS: DAILY SERVICE
i. Sweep and clean building entrances.
ii. Clean and sanitize all public telephones and
enclosures. (neatly arrange and replace as needed all
phone books)
iii. Clean and remove smudges from entry door glass.
iv. Polish all entry handles, door plates and metal trim.
v. Wipe clean all glass, wood, or metal doors and
doorjambs.
vi. Screen all sand urns of cigarette butts and debris.
Wipe clean and polish.
vii. Empty all trash receptacles, clean container with
clean, damp cloth, and replace plastic liner.
(Manager supplies liners).
viii. Remove all debris from landscaped pots and planters.
(report any thefts, broken pots or missing plants).
ix. Dust and clean all horizontal surfaces under seven
feet.
x. Vacuum all carpet areas completely and remove spots.
xi. Dust mop and damp mop entry floors.
xii. Clean and remove smudges and marks on walls, wall
coverings, and artwork.
xiii. Clean, polish and straighten all furniture as needed.
xiv. Wipe clean all directory boards (exterior) with
clean, soft cloth using glass cleaner that is
considered safe and not labeled as hazardous waste.
xv. Wipe clean all fire extinguisher cabinets and glass.
(report broken Glass or missing extinguishers).
xvi. Clean and polish all elevator doors, jambs, call
plates. and hall lanterns.
xvii. Clean, polish and straighten all furniture as needed.
xviii. Dust and clean all lobby and corridor signage.
xix. Report any lights burned out.
xx. Secure all doors and turn off appropriate lights upon
completion of work assignments.
b. LOBBIES AND CORRIDORS - WEEKLY SERVICE
i. Clean and polish all entry metal and ▇▇▇▇▇.
K-1
ii. Dust and clean or polish all baseboards.
iii. Spot clean all carpeted areas.
iv. Dust all ledges and exit signs.
v. Dust all walls above seven feet.
vi. Clean directory board with clean soft cloth.
c. LOBBIES AND CORRIDORS - MONTHLY SERVICE
i. Clean all ceiling vents and grills.
ii. Dust high ceiling corners and entry ways.
iii. Dust and clean light fixtures and covers (interior
and exterior).
iv. Clean and treat all wood paneling and furniture as
requested.
v. Shampoo carpet areas as necessary.
vi. Clean, detail and sanitize public phones and
enclosures.
vii. Dust and clean all fire lobby doors inside and out.
viii. Polish door floor plates.
d. LOBBIES AND CORRIDORS - QUARTERLY
i. Strip, reseal or re-wax common area floors as
necessary.
e. OFFICES - DAILY SERVICE
i. Clean and remove hand spots/smudges from entry door
glass and side lights.
ii. Using a dustless mop, damp mop all non-carpeted
areas.
iii. Vacuum and spot clean carpets in all traffic areas,
removing staples and other debris.
iv. Properly position furniture, books and magazines in
reception areas.
v. Properly position furniture in offices and conference
rooms.
vi. Spot clean all partition glass and mirrors.
vii. Remove all fingerprints and smudges from private
entrances, light switches, cover plates, doorknob
ways and handles, and walls.
viii. Dust window ▇▇▇▇▇ and ledges.
K-2
ix. Dust all horizontal surfaces under seven feet,
furniture, and equipment.
DO NOT move or disturb any paperwork.
x. Dust and replace all desk ornaments, phones and
machines in their original position.
xi. Clean furniture fabric with a whisk broom to sweep
off any dust, paper bits, and erasures as needed.
(remove all staples)
xii. Empty all wastebaskets and carry trash to designated
areas for removal; replace plastic liners as needed.
xiii. Empty all recycling bins from offices into separate
container to be disposed of into specially designated
recycling dumpsters.
xiv. Clean and wash all lunchroom table tops, counters,
sinks, cabinets, refrigerator, and stove (exterior
only) surfaces. (report any insect problems)
xv. Report all burned-out lights.
xvi. Perform additional services requested by tenant and
▇▇▇▇ tenant directly.
xvii. Before leaving any suite, shut off lights, electrical
appliances, close drapes and blinds and lock all
entrance doors and only interior doors as requested.
f. OFFICES - WEEKLY SERVICE
i. Damp wipe all interior doors with a treated cloth.
ii. Detail vacuum entire carpet areas; remove staples and
other debris.
iii. Damp mop all tile and hardwood floor areas.
iv. Polish all desk tops that are cleared of paperwork.
v. Dust all ledges, files, baseboards, and ▇▇▇▇▇ under
seven feet.
vi. Vacuum all furniture or wipe vinyl furniture clean.
vii. Dust all lower parts of furniture.
viii. Detail and clean all kitchen or wet bar areas.
g. OFFICES - MONTHLY SERVICE
i. Completely clean all partitions and doors, doorjambs,
door floor plates, glass and mirrors from floor to
ceiling.
ii. Dust all ledges, wall moldings, pictures, shelves,
etc. over seven feet.
K-3
iii. Dust clean or vacuum all drapes and blinds.
iv. Brush down and clean all vents and grills.
v. Strip, clean and apply floor dressing to all
composition, hardwood and parquet floors.
vi. Scrub and wax all tile floors.
vii. Detail all desks and office furniture.
viii. Dust and clean all light fixtures and covers.
ix. Detail and clean all kitchen, wet bars or lunch room
areas. K-4
x. Clean all baseboards.
xi. Detail and vacuum chairs and upholstered furniture.
h. RESTROOMS - DAILY SERVICE
i. Dust and clean restroom signage and doors.
ii. Vacuum all restrooms vestibules and remove spots.
iii. Sweep wet mop and disinfect tile floor, paying
particular attention to areas under urinals and
toilet bowls.
iv. Clean alkaline deposits and soap spills from floor
tile grout.
v. Wash and disinfect all basins, urinals, and toilet
bowls.
K-4
EXHIBIT L
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated the ___ day of _______, 2004, executed by and
between MBO NORTH AMERICA FINANCE B.V. (hereinafter called "Lender"), and
______________________, a ________________ corporation (hereinafter called
"Tenant");
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇▇▇▇ Cambridge Limited Partnership or its predecessor
(hereinafter called "Borrower") and Tenant have entered into a certain Lease
dated _______________, 20__ (the "Lease"), covering certain premises more fully
described in said Lease (the "Premises") located at the ▇▇▇▇▇▇▇▇▇ Building,
having an address of ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, more fully described on Exhibit "A" attached hereto and made a
part hereof (the "Property"); and
WHEREAS, by Mortgage filed with the Middlesex South Registry of Deeds
at Book ___ Page ___ (hereinafter called the "Mortgage"), Borrower has granted a
first lien interest in the Property and the Premises to Lender; and
WHEREAS, Tenant desires to be assured of continued occupancy of the
Premises under the terms of the Lease;
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) by
each party in hand paid to the other, the receipt of which is hereby
acknowledged, and in consideration of the mutual promises, covenants and
agreements herein contained, the parties hereto, intending to be legally bound
hereby, promise, covenant and agree as follows:
1. The Lease and all estates, options (including purchase
options, if any), liens and charges therein contained or created thereunder is
and shall be subject and subordinate to the lien and effect of the Mortgage
insofar as it affects the real and personal property of which the Premises forms
a part, and to all renewals, modifications, consolidations, replacements and
extensions thereof, to the full extent of the principal and other sums secured
thereby and interest thereon, with the same force and effect as if the Mortgage
had been executed, delivered, and duly recorded among the above-mentioned public
records, prior to the execution and delivery of this Lease.
2. In the event Lender takes possession of the Premises as
mortgagee-in-possession or forecloses the Mortgage (including, whenever
reference is made to foreclosure in this Agreement, by exercise of Lender's
statutory power of sale), or takes a deed in lieu of foreclosure, Lender agrees
not to affect or disturb Tenant's right to possession of the Premises in the
exercise of Lender's rights so long as Tenant is not in
-1-
default beyond applicable notice and cure periods under any of the terms,
covenants or conditions of the Lease.
3. In the event that Lender succeeds to the interest of Borrower
under the Lease and/or title to the Premises, Lender and Tenant hereby agree to
be bound to one another under all of the terms, covenants and conditions of the
Lease. Accordingly, from and after such event, Lender and Tenant shall have the
same remedies against one another for the breach of an agreement contained in
the Lease as Tenant and Borrower had before Lender succeeded to the interest of
Borrower; provided, however, that Lender shall not be:
a. liable for any act or omission of any prior landlord
(including the Borrower); or
b. subject to any offsets or defenses which Tenant might have
against any prior landlord (including the Borrower); or
c. bound by any rent or additional rent which Tenant might have
paid for more than the current month to any prior landlord
(including the Borrower); or
d. bound by any amendment or modification of the Lease made
without Lender's written consent unless the Premises consists
of 25,000 square feet or less (in which event Lender's consent
shall not be required);
e. liable for the repayment of security deposits not actually
received by the Lender; or
f. liable for any obligation of prior landlord to restore the
Property, including the Premises, except to the extent of
insurance proceeds or condemnation awards actually received by
Lender after the deduction of all reasonable costs and
expenses incurred in obtaining such proceeds or awards.
4. In the event that any person or entity different from Lender
acquires title to or the right to possession of the Premises upon the
foreclosure of the Mortgage, or upon the sale of the Premises by Lender or its
successors or assigns after foreclosure or acquisition of title in lieu thereof
or otherwise, Tenant agrees not to seek to terminate the Lease by reason
thereof, but shall remain bound unto the new owner so long as the new owner
agrees to be bound to Tenant under all terms, covenants and conditions of the
Lease, provided that the provisions of paragraph 3 hereof shall be applicable
to, and shall fully benefit, the person or entity so acquiring title.
5. In the event Lender takes possession of the Premises as
mortgagee-in-possession or forecloses the Mortgage, or takes a deed in lieu of
foreclosure, Tenant agrees to pay all rental due under the Lease directly to
Lender, Schenkkade 65, ▇.▇. ▇▇▇
-▇-
▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, or such other address as Lender may
designate in writing to Tenant in the manner and at the address specified in the
Lease.
6. Tenant hereby warrants and represents, covenants and agrees
with Lender:
a. not to alter or modify the Lease in any respect without the
prior written consent of Lender unless the Premises consists
of 25,000 square feet or less (in which event Lender's consent
shall not be required);
b. to deliver to Lender a duplicate of each notice of default
delivered to Borrower at the same time as such notice is given
to Borrower;
c. that Tenant is now the sole owner of the leasehold estate
created by the Lease and shall not hereafter assign the Lease
except as permitted by the terms thereof unless Lender's
consent thereto is not required by the Mortgage or the other
loan documents;
d. not seek to terminate the Lease by reason of any default of
Borrower without prior written notice thereof to Lender and
the lapse thereafter of such time as provided for herein. From
the date hereof until the Mortgage is released, Lender shall
have the right (but not the obligation) to cure any default of
Borrower under the Lease (the cure period to include such time
as may be required for Lender to cure such default, including
taking possession of the Premises, by foreclosure, through
deed in lieu of foreclosure or otherwise). If Lender elects to
cure said default and prosecutes such cure to completion as
herein provided, Tenant will not exercise any right or remedy
to terminate the Lease upon a default by Borrower;
e. not to pre-pay rent or other sums due under the Lease in
advance for more than the current month;
f. to promptly certify in writing to Lender, in connection with
any proposed assignment of the Mortgage, certain matters
relating to the Lease as may reasonably be requested by Lender
or such assignee of the Mortgage, including whether or not any
default on the part of Borrower then exists under the Lease to
the best knowledge of Tenant and whether to the best knowledge
of Tenant, circumstances exist which, with the giving of
notice or the passage of time or both, would result in a
default under the Lease.
g. from the date hereof until the Mortgage is released, Tenant
agrees to recognize the assignment of rents made by Borrower
to Lender and, upon Tenant's receipt of a notice from Lender
that Borrower is in default under the Mortgage beyond
applicable notice and cure periods, Tenant will thereafter pay
to Lender, as assignee, all rents due under the Lease until
-3-
Lender gives Tenant notice that Borrower is no longer in such
default and instructs the Tenant that the rents shall
thereafter be payable to Borrower.
7. This Agreement, together with the Lease, represents the
complete agreement between the parties and supersedes all earlier agreements,
drafts, understandings or arrangements between the parties as to the Property
and shall be binding upon the parties hereto and their respective heirs,
administrators, executors, successors and assigns.
8. This Agreement may be amended, discharged or terminated, or
any of its provisions may be waived, only by a written instrument executed by
the party to be charged.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
LENDER:
MBO NORTH AMERICA FINANCE B.V.
By: _______________________________
Its: ______________________________
By: _______________________________
Its: ______________________________
TENANT:
___________________________________
By: _______________________________
Its: ______________________________
LANDLORD:
▇▇▇▇▇▇▇▇▇ Building Limited Partnership
By: IBUS ▇▇▇▇▇▇▇▇▇ Cambridge, Inc., its
general partner
By: _______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
-4-
STATE OF )
) SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally
appeared ________________, known by me to be the ____________________ of MBO
North America Finance B.V., and being first duly sworn, acknowledged the
execution of the foregoing Subordination, Non-Disturbance and Attornment
Agreement for and on behalf of said Lender, as his free act and deed and the
free act and deed of MBO North America Finance B.V.
Witness my hand and Notarial Seal this ____ day of _____, 2004.
_________________________________
Notary Public - Signature
[affix notarial seal]
COMMONWEALTH OF MASSACHUSETTS)
) SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally
appeared ________________, known by me to be the ____________________ of
_____________________, and being first duly sworn, acknowledged the execution of
the foregoing Subordination, Non-Disturbance and Attornment Agreement for and on
behalf of said Tenant as his free act and deed and the free act and deed of said
Tenant.
Witness my hand and Notarial Seal this ____ day of _____, 2004.
_________________________________
Notary Public - Signature
[affix notarial seal]
-5-