Exhibit 10.4
Building Lease
by and between
FRAMINGHAM - 1881 ASSOCIATES,
As Landlord
and
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., as Tenant
DATED: March __, 1999
TABLE OF CONTENTS
PAGE
ARTICLE I - REFERENCE DATA........................................................................................4
1.1 SUBJECTS REFERRED TO............................................................................4
1.2 EXHIBITS........................................................................................7
ARTICLE II - PREMISES AND TERM....................................................................................7
2.1 PREMISES........................................................................................7
2.1.1 Premises...............................................................................7
2.1.2 Right of First Offer to Lease..........................................................8
2.1.3 Access................................................................................10
2.2 TERM...........................................................................................10
2.2.1 Initial Term..........................................................................10
ARTICLE III - IMPROVEMENTS.......................................................................................10
3.1 INITIAL CONSTRUCTION...........................................................................10
3.1.1 Acceptance of the Premises............................................................10
3.1.2 Tenant Improvements...................................................................10
3.1.3 Tenant Allowance......................................................................11
3.2 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION..................................................12
3.3 REPRESENTATIVES................................................................................12
ARTICLE IV - RENT................................................................................................12
4.1 RENT...........................................................................................12
4.2 ANNUAL FIXED RENT..............................................................................12
4.3 ADDITIONAL RENT -ESCALATION OF OPERATING EXPENSES..............................................13
4.4 ESCALATION OF REAL ESTATE TAXES................................................................16
4.5 AUDIT..........................................................................................18
4.6 UTILITIES......................................................................................18
4.7 LATE PAYMENT OF RENT...........................................................................19
ARTICLE V - LANDLORD'S COVENANTS.................................................................................19
5.1 COVENANTS......................................................................................19
5.1.1 Building Services.....................................................................19
5.1.2 Additional Building Services..........................................................19
5.1.3 Insurance.............................................................................19
5.1.4 Maintenance; Repairs..................................................................19
ARTICLE VI - TENANT'S ADDITIONAL COVENANTS.......................................................................19
6.1 COVENANTS......................................................................................19
6.1.1 Perform Obligations...................................................................19
6.1.2 Occupancy and Use.....................................................................20
6.1.3 Repair and Maintenance................................................................20
6.1.4 Compliance with Law...................................................................20
6.1.5 Tenant's Work.........................................................................21
6.1.6 Indemnity.............................................................................21
6.1.7 Landlord's Right to Enter.............................................................21
6.1.8 Personal Property at Tenant's Risk....................................................22
6.1.9 Payment of Landlord's Cost of Enforcement.............................................22
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6.1.10 Yield Up..............................................................................22
6.1.11 Estoppel Certificate..................................................................22
6.1.12 Landlord's Expenses Re Consents.......................................................23
6.1.13 Rules and Regulations.................................................................23
6.1.14 Loading...............................................................................23
6.1.15 Holdover..............................................................................23
6.1.16 Assignment and Subletting.............................................................23
6.1.17 Nuisance..............................................................................25
6.1.18 Installation, Alterations or Additions................................................25
6.1.19 Insurance.............................................................................25
6.1.20 Insurance Policies....................................................................26
6.1.21 Labor or Materialmen's Liens..........................................................26
ARTICLE VII - CASUALTY OR TAKING.................................................................................26
7.1 TERMINATION....................................................................................26
7.2 RESTORATION....................................................................................27
7.3 AWARD..........................................................................................27
ARTICLE VIII - DEFAULTS..........................................................................................28
8.1 EVENTS OF DEFAULT..............................................................................28
8.2 REMEDIES.......................................................................................28
8.3 REMEDIES CUMULATIVE............................................................................29
8.4 LANDLORD'S RIGHT TO CURE DEFAULTS..............................................................29
8.5 EFFECT OF WAIVERS OF DEFAULT...................................................................30
8.6 NO ACCORD AND SATISFACTION.....................................................................30
ARTICLE IX - MORTGAGES...........................................................................................30
9.1 RIGHTS OF MORTGAGE HOLDERS.....................................................................30
9.2 SUPERIORITY OF LEASE OPTION TO SUBORDINATE.....................................................31
9.3 NO EXISTING MORTGAGE...........................................................................32
ARTICLE X - MISCELLANEOUS PROVISIONS.............................................................................32
10.1 NOTICES FROM ONE PARTY TO THE OTHER............................................................32
10.2 QUIET ENJOYMENT................................................................................32
10.3 EASEMENTS; CHANGES TO LOT LINES................................................................32
10.4 WAIVER OF SUBROGATION..........................................................................32
10.5 LEASE NOT TO BE RECORDED.......................................................................32
10.6 BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY.............................................33
10.7 UNAVOIDABLE DELAYS.............................................................................33
10.8 LANDLORD'S DEFAULT.............................................................................33
10.9 BROKERAGE......................................................................................33
10.10 APPLICABLE LAW AND CONSTRUCTION................................................................34
10.11 SUBMISSION NOT AN OFFER........................................................................34
10.12 SECURITY DEPOSIT...............................................................................34
10.13 SIGNAGE........................................................................................35
10.14 CONDITION PRECEDENT............................................................................35
EXHIBIT A Plan of Premises........................................................................37
EXHIBIT B Plan of Land............................................................................38
EXHIBIT C Rules and Regulations...................................................................39
EXHIBIT D Landlord's Services.....................................................................42
ii
EXHIBIT E Form of Landlord's Waiver and Consent...................................................45
iii
DATE OF LEASE EXECUTION: March _____, 1999
(To be completed by Landlord)
ARTICLE I - REFERENCE DATA
1.1. SUBJECTS REFERRED TO.
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1:
ANNUAL FIXED RENT RATE: $20.00 p.r.s.f. for Lease Years 1 and 2;
$23.00 p.r.s.f. for Lease Years 3-5.
BROKER(S):........ Boston Real Estate Partners and
Hunneman Commercial Company
BUILDING:......... Two-story office building containing 64,339 rentable square feet
BUILDING ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ELECTRICITY CHARGE: Actual cost for electricity for lights and plugs used or
consumed for the Premises.
INITIAL FISCAL YEAR
FOR OPERATING EXPENSES: Calendar Year 1999
INITIAL TAX YEAR
FOR REAL ESTATE TAXES: Fiscal Tax Year 1999 (July 1, 1998 - June 30, 1999)
LANDLORD:......... FRAMINGHAM - 1881 ASSOCIATES, a Massachusetts general
partnership comprised of
▇▇▇▇▇ ▇▇▇▇▇▇ Equity
Partners One Limited
Partnership, Furrose
Associates Limited
Partnership and ▇▇▇▇▇▇▇▇▇
and ▇▇▇▇ Properties Limited
Partnership (formerly known
as ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇
Company).
LANDLORD'S & MANAGING AGENT'S ADDRESS: c/o Spaulding and ▇▇▇▇ Services Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer
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LANDLORD'S REPRESENTATIVE: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
LEASE YEAR: Each consecutive period of twelve (12) months commencing on the
Term Commencement Date if it occurs on the first day of a
calendar month and otherwise commencing on the first day of the
month immediately following the month in which the Term
Commencement Date occurs, and each anniversary of such date,
except that the first Lease Year shall also include the period
from the Term Commencement Date until the first day of the
following month in the event that the Term Commencement Date
does not occur on the first day of a calendar month.
LAND: The parcel of land shown on Site Development Plan SD-1 dated
July 6, 1983 by T&M
Engineering Associates,
Inc., attached hereto as
EXHIBIT B.
MANAGING AGENT: ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ Services Limited Partnership
PARKING FACILITIES: Tenant, its employees, customers, and visitors shall have the
right to use an allocable share of such parking facilities as
may adjoin or be available to the Building in common with
others entitled thereto provided such use does not exceed 3.28
parking spaces per 1,000 r.s.f. of rentable floor area of the
Premises.
PERMITTED USES: General Office Use
PREMISES: Approximately 32,787 r.s.f. comprised of approximately 14,008
r.s.f., located on the second (2nd) floor of the Building (the
"Initial Premises"), and approximately 18,779 r.s.f., located
on the second (2nd) floor of the Building (the "Expanded
Premises"), both spaces as shown on EXHIBIT A. (The Initial
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Premises and the Expanded Premises shall hereinafter be
together referred to as the "Premises.")
PUBLIC LIABILITY
INSURANCE LIMITS Bodily Injury: $2,000,000, or such greater amount as
(per occurrence) may be reasonably required by Landlord.
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Property Damage: $1,000,000, or such greater amount as
may be reasonably required by Landlord.
RENTABLE FLOOR AREA OF THE BUILDING:
64,339 rentable square feet
RENT COMMENCEMENT DATE FOR THE INITIAL The Term Commencement Date.
PREMISES:
RENT COMMENCEMENT DATE FOR EXPANDED PREMISES: The date which is ninety (90) days after the Term Commencement
Date.
RIGHT OF FIRST REFUSAL: See Section 2.1.2 hereof
SECURITY DEPOSIT: $150,000.00, as per Section 10.12
TENANT: ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
a Delaware corporation
TENANT'S ADDRESS (FOR NOTICE AND BILLING): ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT ALLOWANCE: As defined in Section 3.1 hereof.
TENANT'S PROPORTIONATE SHARE: 51%, such percentage being equal to a fraction, the numerator
of which is the rentable floor area of the Premises
(32,787.r.s.f.) and the denominator of which is the Rentable
Floor Area of the Building (64,339 r.s.f.)
TENANT'S REPRESENTATIVE: ▇▇▇ ▇▇▇▇▇▇▇
TERM COMMENCEMENT DATE: The earlier of (a) April 1, 1999, and (b) the date on which
Tenant occupies all or any part of the Premises for Tenant's
use or operations.
TERM EXPIRATION DATE: If the Rent Commencement Date for the Expanded
Premises occurs on the first (1st) day of the month, the Term
Expiration Date shall be the date which is the last day of the
month immediately preceding the fifth (5th) anniversary of the
Rent Commencement Date for the Expanded Premises; otherwise,
the Term Expiration Date shall be the date which is the last
day of the month in which the fifth (5th) anniversary of the
Rent Commencement Date for the Expanded
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Premises occurs.
1.2. EXHIBITS.
The Exhibits listed below in this Section are incorporated in this
Lease by reference and are to be construed as a part of this Lease:
EXHIBIT A. Plan showing the Premises.
EXHIBIT B. Plan showing the Land.
EXHIBIT C. Rules and Regulations.
EXHIBIT D. Landlord's Services.
EXHIBIT E. Form of Landlord's Waiver and Consent.
ARTICLE II - PREMISES AND TERM
2.1. PREMISES.
2.1.1. PREMISES.
(a) Landlord hereby leases and demises to Tenant
and Tenant hereby leases from Landlord,
subject to and with the benefit of the
terms, covenants, conditions and provisions
of this Lease, the Premises.
(b) Tenant shall have, as appurtenant to the
Premises, the right to use in common
with others entitled thereto: (i) the
common facilities included in the
Building or on the Land, including the
Building elevator and the parking spaces
in the parking area (subject to the
limitations set forth in Section 1. 1
hereof), and two (2) common tailboard
loading docks, all on an unreserved,
first-come, first-served basis, and in
the locations from time to time
designated by Landlord, and (ii) the
building service fixtures and equipment
serving the Premises. Notwithstanding
the foregoing, Landlord also reserves
the right to issue parking stickers,
passes or access cards to Tenant in
which case: (A) parking by Tenant, its
employees and agents in the parking
facilities for the Building shall be
restricted solely to vehicles on which a
parking sticker is displayed (in such
location on such vehicle as may be
specified by Landlord), or to one
vehicle for each employee or agent of
Tenant to whom a parking pass or access
card has been issued, as the case may
be; (B) Landlord shall have the right to
tow and remove from the parking area any
vehicle parked in such parking area
without a parking sticker issued by
Landlord and displayed in such specified
location,
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or without a pass or access card issued
by Landlord, at the expense of the owner
of the vehicle; (C) in the event that
Tenant shall at any time during this
Term of this Lease have been issued more
parking stickers, passes or access cards
than the number to which it is entitled
based upon the rentable floor area of
the Premises, as it may be adjusted from
time to time, Tenant shall immediately
return to Landlord so many of such
stickers, passes or access cards as may
be necessary to restore Tenant to the
number of such stickers, passes or
access cards permitted hereunder; and
(D) Landlord shall provide and designate
a sufficient number of parking spaces
for visitor use.
(c) Landlord reserves the right from time to
time, without unreasonable interference
with Tenant's use, to: (i) install,
repair, replace, use, maintain and
relocate for service to the Premises and
to other parts of the Building or
either, building service fixtures and
equipment wherever located in the
Building and (ii) alter or relocate any
common facilities, including, without
limitation, parking and loading
facilities, provided that in all events
substitutions are substantially
equivalent.
(d) Notwithstanding the foregoing provisions
of this Section 2.1.1, Landlord hereby
agrees not to grant any other tenant of
the Building any reserved parking spaces
in such parking area unless Landlord
also grants to Tenant a proportionate
number of reserved parking spaces (based
upon the rentable floor area in the
Building occupied by each such tenant)
in a substantially equivalent location.
2.1.2. RIGHT OF FIRST OFFER TO LEASE.
(a) Subject to the rights of the existing
tenants and to the terms and conditions
hereof, Tenant shall have the right to
add to the Premises some or all of the
space located on the first floor of the
Building (the "Additional Space").
Whenever during the term hereof,
Landlord determines to lease all or any
part of the Additional Space (the phrase
"Available space" shall mean that
portion of the Additional Space which
Landlord has so determined, in its sole
and absolute discretion, to lease),
Landlord shall first offer to lease to
Tenant the Available Space in an "As Is"
condition at the Available Space Annual
Fixed Rent Rate (as hereinafter
defined). Such offer shall be in writing
(the "Offer Notice") and shall specify
the date on which the Available Space
shall be included in the Premises (the
"Available Space Commencement Date").
Tenant shall notify Landlord in writing
whether Tenant elects to lease the
Available Space upon the terms set forth
in the Offer Notice within fourteen (14)
business days after Landlord delivers to
Tenant the Offer Notice.
(b) If Tenant timely elects to lease the
Available Space as aforesaid, then
Landlord and Tenant shall execute an
amendment to this Lease no later than
fourteen (14) days after Tenant notifies
Landlord of Tenant's election to lease
the Available Space, effective as of the
date the Available Space Commencement
Date, on the same terms as this Lease
except that (i) the Rentable Floor Area
of the Premises shall be increased by
the Rentable Floor Area of the Available
Space (and Tenant's Proportionate Share
shall be adjusted accordingly), (ii) the
Annual Fixed Rent shall be equal to the
sum of the Annual Fixed Rent Rate with
respect to the then current Premises
plus the Available Space Annual Fixed
Rent Rate with respect to the Available
Space, (iii) the Initial Fiscal Year for
Operating Expenses and the Initial Tax
Year for Real Estate Taxes with respect
to the Available Space shall be as
specified in the Offer Notice, and (iv)
Landlord shall not provide to Tenant any
allowances (e.g., moving allowance,
construction allowance or the like) or
other tenant inducements.
(c) If Tenant fails or is unable to timely
exercise its rights under this Section
2.1.2 then such rights shall lapse, time
being of the essence with respect to the
exercise thereof, and, subject to the next
two (2) sentences, Landlord may lease the
Available Space to third parties on such
terms as Landlord may elect. If Landlord
fails to enter into any such third party
lease within six (6) months after Tenant
has elected (or is deemed to have elected)
not to lease the Available Space, then the
Available Space shall again be subject to
Tenant's rights under this Section.
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Notwithstanding any of the foregoing to the contrary, Landlord shall
have no obligation to first offer to lease to Tenant any Available Space in
accordance with this Section if at the time Landlord would have sent to Tenant
the Offer Notice Tenant is then in default of any of its monetary obligations
under this Lease or shall have previously assigned this Lease or sublet fifty
percent (50%) or more of the rentable floor area of the Premises (or shall have
agreed to so assign this Lease or sublet the Premises) to any party. If Tenant
is so then in default or shall have so assigned this Lease or sublet the
Premises (or shall have agreed to so assign this Lease or sublet the Premises),
Landlord may proceed to lease the Available Space to any third party without
Tenant having any prior right to lease the Available Space under this Lease.
(d) Any person dealing with the Building may,
without further inquiry, conclusively rely
upon a representation in a certificate of
Landlord as to whether or not the
provisions of this Section have been
satisfied or whether Tenant has waived (or
been deemed to have waived) its rights
hereunder with respect to each Available
Space offered to Tenant in accordance with
the provisions of the foregoing Section
2.1.2(a) or 2.1.2(c). Landlord shall
deliver a copy of such certificate to
Tenant at least ten (10) days prior to the
first occasion that Landlord delivers such
a certificate to any prospective tenant,
purchaser or mortgagee with respect to each
particular Available Space. The parties
hereby agree that a separate certificate
shall apply with respect to each Available
Space separately offered to Tenant under
Section 2.1.2(a) or 2.1.2(c); provided,
however, that Landlord shall not be
required to deliver a copy to Tenant or
otherwise notify Tenant of the delivery by
Landlord to any prospective tenant,
purchaser or mortgagee of any certificate
for any particular Available Space after
the first occasion that Landlord delivers
such a certificate with respect to the
particular Available Space.
(e) The rights of Tenant under this Section
2.1.2 shall not apply to (i) the sale or
conveyance of the Building or the Lot (or
both), or (ii) the granting of a mortgage on
the Building or Lot (or both) or the
foreclosure of or the granting of a deed in
lieu of foreclosure of any such mortgage.
(f) Landlord's failure to notify Tenant of the
availability of any Available Space shall
not relieve Tenant of any of its obligations
under this Lease; provided, however, that
the foregoing provisions of this Subsection
(f) shall not limit or impair Tenant's right
to bring any action at law or in equity,
including, without limitation, any action
for specific performance, against Landlord
in the event Landlord shall fail to notify
Tenant of the availability of any Available
Space as and to the extent required under
this Section 2.1.2.
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(g) As used herein, the term "Available Space
Annual Fixed Rent Rate" shall mean the fair
market rent for the Available Space, as
reasonably determined by Landlord, and set
forth in the Offer Notice.
2.1.3. ACCESS. Tenant shall have access to the Premises 24
hours per day, seven days per week, 52 weeks per year, subject to the Rules and
Regulations, including, without limitation, the provisions of ▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇ 13, and Paragraph 20 of the Rules and Regulations attached hereto.
2.2. TERM.
2.2.1. INITIAL TERM. To have and to hold for a period (the
"Term") commencing on the Term Commencement Date, and continuing through the
Term Expiration Date, unless sooner terminated as provided in Article VII or in
Article VIII.
ARTICLE III - IMPROVEMENTS
3.1. INITIAL CONSTRUCTION.
3.1.1. ACCEPTANCE OF THE PREMISES. Subject to the provisions
of this Article III, and to the extent of Landlord's ongoing maintenance, repair
and service obligations as expressly set forth in this Lease, Tenant hereby
agrees to accept the Initial Premises and the Expanded Premises "AS IS," "AS
SHOWN," and "WITH ALL FAULTS" as of the Term Commencement Date for the Initial
Premises and the Term Commencement Date for the Expanded Premises, respectively.
Tenant further acknowledges that neither Landlord nor any agent of Landlord has
made any representation, express or implied, written, verbal or otherwise as to
the condition of the Premises or the suitability of the Premises for Tenant's
intended use.
3.1.2. TENANT IMPROVEMENTS. Tenant shall prepare or cause to
be prepared (i) on or before March _, 1999 construction plans (the "Initial TI
Plans") of the improvements to be made to the Initial Premises (the "Initial
Tenant Improvements"), and (ii) on or before September 1, 1999 construction
plans (the "Subsequent TI Plans") of the improvements to be made to the Expanded
Premises (the "Subsequent Tenant Improvements"), which Tenant Plans (as
hereinafter defined) shall be approved in writing by Landlord, which approval
shall not be unreasonably withheld or delayed. The Initial TI Plans and the
Subsequent TI Plans shall be hereinafter be together referred to as the "Tenant
Plans"; the Initial Tenant Improvements and the Subsequent Tenant Improvements
shall hereinafter be together referred to as the "Tenant Improvements." Tenant
shall cause the Tenant Improvements to be constructed and installed in
accordance with the Tenant Plans by a general contractor selected by Tenant and
approved by Landlord, which approval shall not be unreasonably withheld or
delayed (the "Approved Contractor"). Tenant shall also use diligent efforts to
cause the Initial Tenant Improvements to be completed no later than one hundred
twenty (120) days after Tenant takes possession of the whole or any part of the
Initial Premises, and the Subsequent Tenant Improvements to be completed no
later than March 1, 2000, it being understood and agreed, however, that the
failure of Tenant to complete such work by such date shall not affect Tenant's
obligations hereunder, including without limitation, the obligation to pay rent
and other amounts provided herein.
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All Tenant Improvements shall be done in a good and workmanlike manner in
accordance with all applicable laws, ordinances and regulations. Prior to
commencing the Tenant Improvements, Tenant shall deliver to Landlord a true,
correct and complete list of all subcontracts and material supply contracts
relating to the Tenant Improvements and shall update such list promptly. Except
as otherwise expressly set forth herein, Tenant shall be responsible for the
total cost of construction, including materials, fees, and all other necessary
and incidental expenses associated with the Tenant Improvements and shall obtain
all necessary licenses and permits therefor. Tenant shall indemnify and hold
Landlord harmless from any and all costs, expenses, losses or damages in
connection with the installation and construction of the Tenant Improvements.
All Tenant Improvements made by Tenant shall be subject to all of the terms and
conditions of this Lease, including without limitation, the provisions of
Sections 6.1.4 - 6.1.6, and 6.1.18 - 6.1.21 hereof.
Without limitation of the foregoing, the Tenant Improvements shall,
include all materials and labor required to: (A) achieve compliance with all
applicable laws, codes, rules and regulations, including the Americans with
Disabilities Act and other handicap accessibility laws, codes, rules and
regulations, but only with respect to the Premises and not with respect to the
common facilities of the Building, and (B) upgrade any HVAC, electrical or other
mechanical systems specifically servicing the Premises as required for Tenant's
use and occupancy thereof.
Landlord will not approve any construction, alterations, or additions
requiring unusual expense to readapt the Premises to normal office use on lease
termination or increasing the cost of construction, insurance or taxes on the
Building or of Landlord's services called for by Section 5.1 unless Tenant first
gives assurances acceptable to Landlord that such readaptation will be made
prior to such termination without expense to Landlord and makes provisions
acceptable to Landlord for payment of such increased cost. All changes and
additions shall be part of the Building except such items as Landlord shall
require Tenant to remove in writing on termination of this Lease.
Notwithstanding the foregoing, Tenant shall not be required to remove the Tenant
Improvements or any other improvements made by Tenant or Landlord in accordance
with any Tenant Plans approved by Landlord (or any other improvements consistent
therewith provided the same are approved by Landlord, such approval not to be
unreasonably withheld or delayed), nor shall any such improvements be removed by
Tenant on termination of this Lease.
3.1.3. TENANT ALLOWANCE. Upon completion of the Initial
Tenant Improvements, as certified to Landlord in writing by the Approved
Contractor and as evidenced by a certificate of occupancy issued by the
applicable municipal authority, Landlord shall pay to Tenant within thirty (30)
days of such completion the lesser of (i) the costs of the Initial Tenant
Improvements, and (ii) $126,072, representing $9.00 p.r.s.f., toward the costs
of the Initial Tenant Improvements (the "Initial Tenant Allowance"). Upon
completion of the Subsequent Tenant Improvements, as certified to Landlord in
writing by the Approved Contractor and as evidenced by a certificate of
occupancy issued by the applicable municipal authority, Landlord shall pay to
Tenant within thirty (30) days of such completion the lesser of (i) the costs of
the Subsequent Tenant Improvements, and (ii) $169,011, representing $9.00
p.r.s.f., toward the costs of the Subsequent Tenant Improvements (the
"Subsequent Tenant Allowance"). (The Initial Tenant Allowance and the Subsequent
Tenant Allowance shall hereinafter be together referred to as the "Tenant
Allowance".) The Tenant Allowance may be used for both "hard costs" and "soft
costs,"
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so-called, approved by Landlord in its reasonable discretion and substantiated
by evidence reasonably satisfactory to Landlord directly related to the
completion of the Tenant Improvements, including reasonable fees to unrelated
third parties for space planning, architectural and engineering services,
license and permit fees related to the Tenant Improvements and painting,
lighting, carpeting and communication cabling expenses. Landlord's obligation to
pay the Tenant Allowance to Tenant shall be expressly conditioned upon
Landlord's receipt of current releases and waivers of liens, in form and
substance acceptable to Landlord in Landlord's sole and absolute discretion,
from all subcontractors, materialmen, mechanics and suppliers engaged in
connection with the construction of the Tenant Improvements.
3.2. GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.
All construction work required or permitted by this Lease, whether by
Landlord or by Tenant, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all lawful ordinances, regulations and
orders of governmental authority and insurers of the Building and shall be
consistent with Building standard finishes, except as otherwise agreed to by
Landlord in writing. Either party may inspect the work of the other at
reasonable times and promptly shall give notice of observed defects. Landlord
shall not be responsible for any loss, damage, or injury resulting from the
installation of any components, fixtures, or equipment provided they were
appropriately specified and installed in accordance with the manufacturer's or
supplier's instructions, and provided that Landlord shall assign any and all
manufacturers' and suppliers' warranties with respect thereto to Tenant for the
Term of this Lease, upon the expiration or sooner termination of which Term such
warranties shall automatically revert to Landlord.
3.3. REPRESENTATIVES.
Each party authorizes the other to rely in connection with their
respective rights and obligations under this Article III upon approval and other
actions on the party's behalf by Landlord's Representative in the case of
Landlord or Tenant's Representative in the case of Tenant or by any person
designated in substitution or addition by notice to the party relying.
ARTICLE IV - RENT
4.1. RENT. Tenant agrees to pay to Landlord as rent for the
Premises, without any offset or reduction whatsoever, Annual Fixed Rent,
Additional Rent and all other additional rent or charges required of Tenant
under this Lease, at the Original Address of Landlord or at such other place or
to such other person or entity as Landlord may by notice to Tenant from time to
time direct.
4.2. ANNUAL FIXED RENT. The Annual Fixed Rent for the Premises
shall be payable in equal installments equal to 1/12th of the product of the
Annual Fixed Rent Rate multiplied by the rentable floor area of the Premises
from time to time, in advance on the first day of each calendar month included
in the Term from and after the Rent Commencement Date; and for any portion of a
calendar month at the beginning or end of the Term, at the proportionate rate
payable for such portion, in advance.
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4.3. ADDITIONAL RENT - ESCALATION OF OPERATING EXPENSES.
4.3.1. For purposes of this paragraph 4.3, the following
definitions apply:
"FISCAL YEAR" shall mean each separate calendar year falling
wholly or partly within the Term.
"INITIAL BASE COST" shall mean all Operating Expenses (as
hereinafter defined) of the Building for the Initial Fiscal Year.
"OPERATING EXPENSES" shall mean all expenses, costs and
disbursements (but no replacement of capital investment items except as provided
below or specific costs especially billed to and paid by specific tenants) of
every kind and nature which Landlord shall pay or become obligated to pay
because of or in connection with ownership, insurance, maintenance, security (to
the extent provided by Landlord) and operation of the Building and Land,
computed on an accrual basis, and including, but not limited to, the following:
(i) Wages and salaries of all employees
directly engaged in operating, maintenance or security of the
Building, including taxes, insurance and benefits relating
thereto.
(ii) All supplies and materials used in
operation and maintenance of the Building.
(iii) Cost of all utilities and any
surcharges for the Building, including cost of water, sewer,
power, heat, light, air conditioning and ventilation for
common facilities of the Building, to the extent not
separately metered to Tenant or any other tenant of the
Building. Tenant expressly acknowledges that Operating
Expenses include the cost of electricity for the common areas
of the Building.
(iv) Cost of all maintenance and service
agreements for the Building and the equipment therein,
including, but not limited to, security and energy management
services, window cleaning, elevator maintenance and janitorial
service.
(v) Cost of all insurance relating to the
Building and Land, and Landlord's personal property used in
connection therewith.
(vi) Cost of repairs and general maintenance
(excluding repairs and general maintenance paid by the
proceeds of insurance or by Tenant or other third parties, and
alterations attributable solely to tenants of the Building
other than Tenant).
(vii) Management fee for the manager of the
Building comparable to the management fee paid to managers of
comparable buildings in the suburban Boston office market.
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(viii) The cost of any additional,
commercially reasonable services not provided to the Building
at the commencement of the Lease Term but thereafter provided
by Landlord in the prudent management of the Building,
consistent with the management of similar first class office
buildings in the area in which the Building is located.
(ix) The cost of any capital improvements
made to the Building after the commencement of the Term that
are intended to reduce other operating expenses or are
required under governmental law or regulation, such cost
thereof to be amortized over said capital improvements' useful
life with interest on the unamortized balance at a floating
rate equal to the so-called prime rate published from time to
time in the WALL STREET JOURNAL (or, if such rate is no longer
published, a comparable rate selected by Landlord) (the "Prime
Rate") plus two (2) percentage points per annum, or such
higher rate as may have been paid by Landlord on funds
borrowed for the purposes of constructing or installing said
capital improvements.
The foregoing items shall be excluded from Operating Expenses:
(a) Charges for depreciation of the Building or
equipment and any mortgage debt service,
interest or other financing charges;
(b) Costs of correcting defects in the building
construction or building equipment except
for ordinary wear and tear;
(c) Costs of repairs due to total or partial
destruction of the Building or condemnation
of a portion of the Building;
(d) Costs of repairs, alterations, additions,
changes, replacements and other items which
under generally accepted accounting
principles are properly classified as
capital expenditures to the extent that they
upgrade the Building versus replace a worn
out item;
(e) Any operating expenses paid to a related
corporation or entity in excess of what
would have been paid in the absence of such
relationship;
(f) The cost of complying with applicable laws
dealing with the handling storage and
disposal of hazardous substances, including
cleanup costs;
(g) Cost of environmental testing;
(h) Compensation for executive or officers and
other employees of Landlord not directly
connected with the operation of the
Property;
(i) Asset Management Fees;
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(j) Expenses incurred in marketing space in the
Building;
(k) Leasing commissions, attorneys' fees, costs
and disbursements and other expenses
incurred in connection with negotiations or
disputes with tenants, other occupants, or
prospective tenants and occupants;
(l) Renovating or otherwise improving,
decorating, painting or redecorating space
for tenants or other occupants of the
Building;
(m) Expenses in connection with services or
other benefits of the type which are not
provided Tenant, but which are provided to
another tenant or occupant;
(n) All items and services for which Tenant is
separately charged, reimburses Landlord or
pays third persons;
(o) Construction or other work performed by
Landlord for other tenants, whether or not
Landlord is entitled to be reimbursed for
the cost of such work;
(p) The cost of any items for which Landlord is
reimbursed by insurance, condemnation,
refund, rebate or otherwise;
(q) Any expenses for repair or maintenance to
the extent covered by warranties, guaranties
and service contracts and for which Landlord
is reimbursed; and
(r) Costs related to maintaining Landlord's
existence as a partnership or other entity.
4.3.2. For and with respect to each Fiscal Year, Tenant
shall pay as Additional Rent (as defined herein) for the Premises Tenant's
Proportionate Share of the increase in Operating Expenses over the Initial Base
Cost, on the following terms and conditions:
(i) After the end of the first Fiscal Year
immediately following the Initial Fiscal Year (the "First Full
Fiscal Lease Year"), if Operating Expenses for such First Full
Fiscal Year exceed the Initial Base Cost, Landlord shall
submit a notice to Tenant reasonably detailing such excess,
and Tenant shall pay Tenant's Proportionate Share of such
excess within thirty (30) days after such notice.
(ii) During each Fiscal Year following the
First Full Fiscal Year, Tenant shall pay to Landlord, in
monthly installments together with monthly Fixed Rent, an
amount estimated by Landlord as one-twelfth of the Tenant's
Proportionate Share of the excess of Operating Expenses for
such Fiscal Year over the Initial Base Cost.
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(iii) Within one hundred twenty (120) days
(or as soon thereafter as possible) following the end of each
Fiscal Year following the First Full Fiscal Year, Landlord
shall provide Tenant a statement of such year's actual
Operating Expenses, showing the actual increase in Operating
Expenses over the Initial Base Cost (the "Annual Operating
Expense Statement"). If such Annual Operating Expense
Statement shows that Tenant's monthly payments exceed Tenant's
Proportionate Share of the actual increase incurred for the
applicable Fiscal Year, then Tenant may deduct such
overpayments from its next payment or payments of monthly rent
unless the Term has expired, in which case Landlord shall
refund such overpayment to Tenant within thirty (30) days
after such Annual Operating Expense Statement. If such Annual
Operating Expense Statement shows that Tenant's Proportionate
Share of the actual increase incurred for the applicable
Fiscal Year exceeds Tenant's monthly payments for the
applicable Fiscal Year, then Tenant shall within thirty (30)
days after such statement pay the total amount of such
deficiency to Landlord.
(iv) Each and every of the aforesaid
projected escalation amounts, as well as any other amounts
which are owed by Tenant to Landlord under this Lease other
than Annual Fixed Rent, whether or not identified as
"Additional Rent" hereunder, and whether requiring lump sum
payment or constituting projected monthly amounts payable with
the Annual Fixed Rent, shall for all purposes be treated and
considered as Additional Rent and the failure of Tenant to pay
the same as and when due in advance and without demand shall
have the same effect as failure to pay any installment of the
Annual Fixed Rent, and shall afford Landlord all remedies
provided in this Lease therefor.
4.3.3. Tenant's obligation for payment of Additional Rent
shall survive any termination of this Lease by the lapse of time or otherwise.
4.3.4. Should this Lease terminate at any time other than
the first day of a calendar year, the Additional Rent referred to in this
paragraph 4.3 shall be calculated for the Fiscal Year in which the expiration of
the Term occurs only by the following formula:
DAYS UNDER LEASE x Additional Rent = Adjusted Additional Rent for the
---------------- Fiscal Year in which termination occurred
365
4.3.5. In any Fiscal Year (including the Initial Fiscal
Year) when the Building has an average annual occupancy rate of less than 95 %,
then, for the purpose of this Section 4.3, the Operating Expenses will be
extrapolated as though the Building were 95% occupied. In any Fiscal Year when
the Building has an average annual occupancy rate of 95% or more, then the
Operating Expenses shall be the actual Operating Expenses. In the case of any
services which are not rendered to all areas on a comparable basis, the
proportion allocable to the Premises shall be in the same proportion such the
floor area of the Premises bears to the total floor area to which such service
is rendered.
4.4. ESCALATION OF REAL ESTATE TAXES.
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4.4.1. For purposes of this paragraph 4.4, the following
definitions apply:
"TAX YEAR" shall mean each separate tax fiscal year falling
wholly or partly within the Term (currently the period commencing July 1 and
ending June 30).
"INITIAL TAX COST" shall mean all Real Estate Taxes (as
hereinafter defined) assessed against the Building and the Land for the Initial
Tax Year.
"REAL ESTATE TAXES" shall mean all real estate taxes
(including special betterment assessments, if any and any other taxes now or
hereinafter imposed which are in the nature of or in substitution for real
estate taxes) levied on the Building and the Land. For purposes of the preceding
sentence, if Landlord can lawful pay any assessment in installments without any
fine, penalty or lien against the Land or Building, the amount of such
assessment shall be limited to the installments lawfully payable from time to
time during the Term plus any accrued interest on the unpaid balance of such
assessment. Real Estate Taxes shall not include any inheritance, gift, transfer,
excise, income, franchise, rental, capital levy or profit tax or any late
payment charges and penalties.
4.4.2. For and with respect to each Tax Year, Tenant shall
pay as Additional Rent for the Premises Tenant's Proportionate Share of the
increase in Real Estate Taxes over the Initial Tax Cost, on the following terms
and conditions:
(i) After the end of the Initial Tax Year,
if Real Estate Taxes exceed the Initial Tax Cost, Landlord
shall submit a notice to Tenant reasonably detailing such
excess, and Tenant shall pay Tenant's Proportionate Share of
such excess within thirty (30) days after such notice.
(ii) During each Tax Year following the
Initial Tax Year, Tenant shall pay to Landlord, in monthly
installments together with monthly Fixed Rent, an amount
estimated by Landlord as one-twelfth of the Tenant's
Proportionate Share of the excess of Real Estate Taxes for
such Tax Year over the Initial Tax Cost.
(iii) Within one hundred twenty (120) days
(or as soon thereafter as possible) following the end of each
Tax Year, Landlord shall provide Tenant a statement of such
year's actual Real Estate Taxes, showing the actual increase
in Real Estate Taxes over the Initial Tax Cost. If such
statement shows that Tenant's monthly payments exceed Tenant's
Proportionate Share of the actual increase incurred for the
applicable Tax Year, then Tenant may deduct such overpayments
from its next payment or payments of monthly rent unless the
Term has expired, in which case Landlord shall refund such
overpayment to Tenant within thirty (30) days after such
statement. If such statement shows that Tenant's Proportionate
Share of the actual increase incurred for the applicable Tax
Year exceeds Tenant's monthly payments for the applicable Tax
Year, then Tenant shall within thirty (30) days after such
statement pay the total amount of such deficiency to Landlord.
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(iv) Each and every of the aforesaid
projected escalation amounts shall for all purposes be treated
and considered as Additional Rent.
4.4.3. Should this Lease terminate at any time other than
the first day of a tax year, the Additional Rent referred to in this paragraph
4.4 shall be calculated for the Tax Year in which the expiration of the Term
occurs only by the following formula:
DAYS UNDER LEASE x Additional Rent = Adjusted Additional Rent for the
---------------- Tax Year in which termination occurred
365
4.4.4. In any Fiscal Year when the Building has an average
annual occupancy rate of less than 95% then, for the purpose of this Section
4.4, the Real Estate Taxes will be extrapolated as though the Building were 95 %
occupied. In any Fiscal Year when the Building has an average annual occupancy
rate of 95 % or more, then the Real Estate Taxes shall be the actual Real Estate
Taxes. Landlord shall credit against Tenant's next ensuing payment of Additional
Rent any excess payments made by Tenant to reflect any abatement in Real Estate
Taxes obtained by Landlord with respect to any Tax Year. Expenditures for legal
fees and other expenses incurred in obtaining any abatement may be charged
against the amount of Real Estate Taxes abated.
4.5. AUDIT. Subject to the provisions of this Section, Tenant shall
have the right, at Tenant's cost and expense, to examine all Landlord's books
and records, documentation and calculations prepared in the determination of
excess Operating Expenses.
(a) Such documentation and calculation shall be
made available to Tenant at the offices
where Landlord keeps such records during
normal business hours within a reasonable
time after Landlord receives a written
request from Tenant to make such
examination.
(b) Tenant shall have the right to make such
examination no more than once in respect of
any period in which Landlord has given
Tenant a statement of the actual amount of
Operating Costs.
(c) Any request for examination in respect of
any Fiscal Year may be made no more than
sixty (60) days after Landlord advises
Tenant of the actual amount of Operating
Costs in respect of such period.
(d) Such examination may be made only by an
independent certified public accounting firm
reasonably approved by Landlord.
(e) In the event that Tenant's audit discloses
that Tenant paid an amount in excess of its
proper contribution, Landlord shall credit
such excess against Tenant's next ensuing
payment for Additional Rent.
4.6. UTILITIES. Tenant shall pay directly to the proper authorities
charged with the collection thereof all charges for any utilities or services
separately metered to Tenant used or
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consumed on the Premises, including, without limitation, the Electricity Charge.
It is understood and agreed that Landlord shall not be liable for any
interruption or failure in the supply of any such utilities to the Premises.
4.7. LATE PAYMENT OF RENT. If any installment of rent is paid ten
(10) days after the date the same was due, at Landlord's election, it shall bear
interest from the due date at the Prime Rate, as it may be adjusted from time to
time, plus 4% per annum, but in no event more than the highest rate of interest
allowed by applicable law (the "Default Rate"), which interest shall be
immediately due and payable as further additional rent. The foregoing provisions
of this Section 4.7 shall not apply to the first installment of rent paid after
the date the same was due during each twelve (12) consecutive month period
during the Term.
ARTICLE V - LANDLORD'S COVENANTS
5.1. COVENANTS. Landlord covenants during the Term:
5.1.1. BUILDING SERVICES. To furnish, through Landlord's
employees or independent contractors, the services listed in EXHIBIT D.
5.1.2. ADDITIONAL BUILDING SERVICES. To furnish, through
Landlord's employees or independent contractors, reasonable additional Building
operation services upon reasonable advance request of Tenant at equitable rates
from time to time established by Landlord to be paid by Tenant.
5.1.3. INSURANCE. To maintain all risk fire and casualty
insurance on a replacement value, agreed amount basis, for the Building in such
amounts as Landlord may consider reasonably appropriate. Landlord shall have no
obligation to insure Tenant's personal property or chattels, including without
limitation, Tenant's trade fixtures.
5.1.4. MAINTENANCE; REPAIRS. Except as otherwise provided in
Article VI, to make such repairs to the roof, exterior walls, floor slabs and
other structural components and common areas and facilities of the Building and
the Land as may be necessary to keep them in good, serviceable condition,
including without limitation, maintenance and repair of the parking area,
including lighting, removal of snow and ice, cleaning, patching pot holes,
landscaping and restriping of parking spaces. Without limitation of the
foregoing, Landlord shall be responsible for the maintenance and repair of the
mechanical, electrical, plumbing and heating and air conditioning systems
serving the Building and the Premises, including the Building elevator.
ARTICLE VI - TENANT'S ADDITIONAL COVENANTS
6.1. COVENANTS. Tenant covenants at its expense at all times during
the Term and for such further time as Tenant occupies the Premises or any part
thereof:
6.1.1. PERFORM OBLIGATIONS. To perform promptly all of the
obligations of Tenant set forth in this Lease; and to pay when due the Fixed
Rent and Additional Rent and all charges, rates and other sums which by the
terms of this Lease are to be paid by Tenant.
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6.1.2. OCCUPANCY AND USE. Continuously from the Commencement
Date, to use and occupy the Premises only for the Permitted Uses, and to timely
procure and maintain all licenses and permits necessary therefor at Tenant's
sole expense.
6.1.3. REPAIR AND MAINTENANCE. Except as otherwise provided
in Article VII, to keep the Premises, including, without limitation, all
plumbing, electrical, and other fixtures and equipment now or hereafter on the
Premises but excluding the exterior of the Premises (exclusive of glass and
doors), the structural elements of the Building, and the grounds and the parking
lot which Landlord shall maintain and repair unless such repairs are required
because of Tenant's misconduct or negligence, in good order, condition and
repair and in at least as good order, condition and repair as they are in on the
Term Commencement Date or may be put in during the Term, reasonable use and wear
only excepted; to maintain the Premises in a clean, orderly and sanitary
condition, including, without limitation, cleaning, repairing or replacing as
needed all floor covering within the Premises; to keep in a safe, secure and
sanitary condition all trash and rubbish temporarily stored at the Premises; and
to make all repairs and replacements and to do all other work necessary for the
foregoing purposes whether the same may be ordinary or extraordinary, foreseen
or unforeseen. It is further agreed that the exception of reasonable use and
wear shall not apply so as to permit Tenant to keep the Premises in anything
less than suitable, tenantlike, and efficient and usable condition considering
the nature of the Premises and the use reasonably made thereof, or in less than
good and tenantlike repair.
6.1.4. COMPLIANCE WITH LAW. To make all repairs,
alterations, additions or replacements to the Premises required by any law or
ordinance or any order or regulation of any public authority required by reason
of Tenant's particular and specific use of the Premises as opposed to legal
requirements applicable generally to office buildings and general business
office uses other than major capital repairs, alterations, additions or
replacements to the foundations and structural elements of the building which
are not required because of Tenant's failure to comply with the provisions of
Article 6.1.3 hereof; to keep the Premises equipped with all safety appliances
so required; to pay all municipal, county, or state taxes assessed against the
leasehold interest hereunder, or against personal property of any kind on or
about the Premises; not to dump, flush, or in any way introduce any hazardous
substances or any other toxic substances into the septic, sewage or other waste
disposal system serving the Premises or the Building, not to generate, store
(except for standard office supplies stored in proper containers in accordance
with law) or dispose of hazardous substances in or on the Premises, the Building
or the Land or dispose of hazardous substances from the Premises, the Building
or the Land to any other location without the prior written consent of Landlord
and then only in compliance with the Resource Conservation and Recovery Act of
1976, as amended, 42 U.S.C. Section 6901 et seq., and all other applicable laws,
ordinances and regulations; to notify Landlord of any incident which would
require the filing of a notice under applicable federal, state, or local law;
not to store (except for standard office supplies stored in proper containers in
accordance with law) or dispose of hazardous substances on the Premises without
first submitting to Landlord a list of all such hazardous substances and all
permits required therefor and thereafter providing to Landlord on an annual
basis Tenant's certification that all such permits have been renewed with copies
of such renewed permits; and to comply with the orders and regulations of all
governmental authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws applicable to the Premises.
"Hazardous substances" as used in this paragraph shall mean
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"hazardous substances" as defined in the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 and
regulations adopted pursuant to said Act.
6.1.5. TENANT'S WORK. To procure at Tenant's sole expense
all necessary permits and licenses before undertaking any work on the Premises
(including, without limitation, the Tenant Improvements); to do all such work in
compliance with the applicable provisions of this Lease, including, without
limitation, Sections 3.2; to do all such work in a good and workmanlike manner
employing materials of good quality and so as to conform with all applicable
zoning, environmental, building, fire, health and other codes, regulations,
ordinances and laws; to furnish to Landlord prior to the commencement of any
such work a bond or other security reasonably acceptable to Landlord assuring
that any work commenced or continued by Tenant will be completed in accordance
with specifications approved in advance in writing by Landlord; to keep the
Premises at all times free of liens for labor and materials; to employ for such
work one or more responsible contractors whose labor will work without
interference with other labor working on the Building; to require such
contractors employed by Tenant to carry worker's compensation insurance in
accordance with statutory requirements and comprehensive public liability
insurance covering such contractors on or about the Premises in amounts that at
least equal the limits set forth in Section 1.1 and to submit certificates
evidencing such coverage to Landlord prior to the commencement of such work; and
to save Landlord harmless and indemnified from all injury, loss, claims or
damage to any. person or property occasioned by or growing out of such work.
6.1.6. INDEMNITY. To defend, with counsel reasonably
approved by Landlord, all actions against Landlord, any partner, trustee,
stockholder, officer, director, employee or beneficiary of Landlord, holders of
mortgages secured by the Premises or the Building and Land and any other party
having an interest in the Premises ("Indemnified Parties") with respect to, and
to pay, protect, indemnify and save harmless, to the extent permitted by law,
all Indemnified Parties from and against, any and all liabilities, losses,
damages, costs, expenses (including reasonable attorneys' fees and expenses),
causes of action, suits, claims, demands or judgments of any nature (a) to which
any Indemnified Party is subject because of Tenant's estate or interest in the
Premises, or (b) arising from (i) injury to or death of any person, or damage to
or loss of property, on the Premises or on adjoining sidewalks, streets or ways,
connected in any way with the use or occupancy of any thereof by Tenant or any
of Tenant's agents, contractors, licensees, sublessees or invitees, unless due
to the act, fault, omission or misconduct of Landlord, its agents, contractors
or employees or (ii) any act, fault, omission or misconduct of Tenant or its
agents, contractors, licensees, sublessees or invitees.
6.1.7. LANDLORD'S RIGHT TO ENTER. To permit Landlord and its
agents to enter into the Premises at reasonable times and upon reasonable
notice, to examine the Premises, make such repairs and replacements as Landlord
may elect, without however, any obligation to do so, and show the Premises to
prospective purchasers and to lenders, and, during the last twelve (12) months
of the Term, to show the Premises to prospective tenants and to keep affixed in
suitable places notices of availability of the Premises. Landlord shall exercise
its rights under this Section in such a manner as to minimize, to the extent
practicable, interference with Tenant's use and occupancy of the Premises.
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6.1.8. PERSONAL PROPERTY AT TENANT'S RISK. All of the
furnishings, fixtures, equipment, effects and property of every kind, nature and
description of Tenant and of all persons claiming by, through or under Tenant
which, during the continuance of this Lease or any occupancy of the Premises by
Tenant or anyone claiming by, through or under Tenant, may be on the Premises
(collectively "Tenant's Property"), shall, as between the parties, be at the
sole risk and hazard of Tenant and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or bursting
of water pipes, steam pipes, or other pipes, by theft or from any other cause,
no part of said loss or damage is to be charged to or to be borne by Landlord,
except that Landlord shall in no event be indemnified or held harmless or
exonerated from any liability to Tenant or to any other person, for any injury,
loss, damage or liability to the extent prohibited by law. Landlord waives all
rights in Tenant's Property (except to the extent any portion thereof was
purchased with the Tenant Allowance) and agrees to execute, upon request of
Tenant, a confirmation of such waiver in substantially the form attached hereto
as EXHIBIT E.
6.1.9. PAYMENT OF LANDLORD'S COST OF ENFORCEMENT. To pay on
demand Landlord's expenses, including reasonable attorney's fees, incurred in
successfully enforcing any obligation of Tenant under this Lease or settling any
claim in connection therewith, or in curing any default by Tenant under this
Lease as provided in Section 8.4.
6.1.10. YIELD UP. At the expiration of the Term or earlier
termination of this Lease: to surrender all keys to the Premises, to remove all
of its trade fixtures and personal property in the Premises, to remove such
installations and improvements made by Tenant (other than the Tenant
Improvements) as Landlord may request and all Tenant's signs wherever located,
to repair all damage caused by such removal and to yield up the Premises
(including all installations and improvements made by Tenant except for trade
fixtures and such of said installations or improvements as Landlord shall
request Tenant to remove), broom-clean and in the same good order and repair in
which Tenant is obliged to keep and maintain the Premises by the provisions of
this Lease. Any property not so removed shall be deemed abandoned and may be
removed and disposed of by Landlord in such manner as Landlord shall determine
and Tenant shall pay Landlord the entire cost and expense incurred by Landlord
in effecting such removal and disposition and in making any incidental repairs
and replacements to the Premises and for use and occupancy during the period
after the expiration of the Tenant in and prior to Tenant's performance of its
obligations under this Section 6.1.10. Tenant shall further indemnify Landlord
against all loss, cost and damage resulting from Tenant's failure and delay in
surrendering the Premises as above provided.
6.1.11. ESTOPPEL CERTIFICATE. Upon not less than ten (10)
days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord
a statement in writing certifying that this Lease is unmodified and in full
force and effect and that except as stated therein Tenant has no knowledge of
any defenses, offsets or counterclaims against its obligations to pay the Fixed
Rent and Additional Rent and any other charges and to perform its other
covenants under this Lease (or, if there have been any modifications, that the
Lease is in full force and effect as modified and stating the modifications and,
if there are any defenses, offsets or counterclaims, setting them forth in
reasonable detail), the dates to which the Fixed Rent and Additional Rent and
other charges have been paid and a statement that Landlord is not in default
hereunder (or if
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in default, the nature of such default, in reasonable detail) and such other
matters reasonably required by Landlord or any prospective purchaser or
mortgagee of the Building. Any such statement delivered pursuant to this Section
6.1.11 maybe relied upon by any prospective purchaser or mortgagee of the
Building, or any prospective assignee of any such mortgage.
6.1.12. LANDLORD'S EXPENSES RE CONSENTS. To reimburse
Landlord promptly on demand for all reasonable legal expenses incurred by
Landlord in connection with all requests by Tenant for consent or approval under
this Lease.
6.1.13. RULES AND REGULATIONS. To comply with the Rules and
Regulations set forth in EXHIBIT C, as the same may be amended from time to time
by Landlord to provide for the care and use of the Building and Land and their
facilities and approaches, it being understood that Landlord shall not be liable
to Tenant for the failure of other tenants of the Building to conform to such
Rules and Regulations, provided, however, that to the extent of any conflict
between the provisions of this Lease and any such Rules and Regulations, the
provisions of this Lease shall control.
6.1.14. LOADING. Not to place Tenant's Property, as defined
in Section 6.1.8, upon the Premises so as to exceed a rate of 50 pounds of live
load per square foot and not to move any safe, vault or other heavy equipment
in, about or out of the Premises except in such manner and at such times as
Landlord shall in each instance approve. Tenant's business machines and
mechanical equipment which cause vibration or noise that may be transmitted to
the Building structure or to any other leased space in the Building shall be
placed or maintained by Tenant in settings of cork, rubber, spring, or other
types of vibration eliminators sufficient to eliminate such vibration or noise.
6.1.15. HOLDOVER. To pay to Landlord the greater of twice (a)
the then fair market rent for the Premises as conclusively determined by
Landlord or (b) the total of the Fixed Rent, Additional Rent, and all other
payments then payable hereunder, for each month or portion thereof Tenant shall
retain possession of the Premises or any part thereof after the termination of
this Lease, whether by lapse of time or otherwise, and also to pay all damages
sustained by Landlord on account thereof, the provisions of this subsection
shall not operate as a waiver by Landlord of the right of re-entry provided in
this Lease; if such holding over continues for more than five (5) days after
Landlord's written objection thereto, at the option of Landlord exercised by
notice given to Tenant while such holding over continues, such holding over
shall constitute an extension of this Lease for a period of one year.
6.1.16. ASSIGNMENT AND SUBLETTING.
(a) Not without the prior written consent of
Landlord to assign this Lease, to make any
sublease, or to permit occupancy of the
Premises or any part thereof by anyone
other than Tenant, voluntarily or by
operation of law; as Additional Rent, to
reimburse Landlord promptly for reasonable
legal and other expenses incurred by
Landlord in connection with any request by
Tenant for consent to assignment or
subletting; no assignment or subletting
shall affect the continuing primary
liability of Tenant
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(which, following assignment, shall be
joint and several with the assignee); no
consent to any of the foregoing in a
specific instance shall operate as a waiver
in any subsequent instance.
(b) Notwithstanding any other provision of
this Section 6.1.16, in the event that
Tenant requests Landlord's consent to any
sublease of any portion of the Premises
(said portion of the Premises being
hereinafter referred to as the "Proposed
Sublease Premises"), Landlord shall have
the option, exercisable by notice given to
Tenant within thirty (30) days after
receipt of Tenant's request for consent to
the proposed sublease, to terminate this
Lease with respect to the Proposed Sublease
Premises as of a date specified in such
notice, which shall be not less than thirty
(30) nor more than one hundred twenty (120)
days after such notice, in which event: (i)
this Lease shall continue in full force and
effect with respect to the remainder of the
Premises not included in the Proposed
Sublease Premises, (ii) Tenant shall remove
all of Tenant's trade fixtures and personal
property in the Proposed Sublease Premises,
all of such installations and improvements
made by Tenant therein as Landlord may
request and all of Tenant's signs therein,
and Tenant shall repair all damage caused
by such removal and yield up the Proposed
Sublease Premises (including all
installations and improvements made by
Tenant except for trade fixtures and such
of said installations and improvements as
Landlord may request Tenant to remove),
broom clean and in the same good order and
repair which Tenant is obligated to keep
and maintain the Premises by the provisions
of this Lease.
(c) Notwithstanding any other provision of this
Section 6.1.16, if Tenant requests
Landlord's consent to assign this Lease or
sublet more than twenty-five percent (25 %)
of the Premises, Landlord shall have the
option, exercisable by notice to Tenant
given within thirty (30) days after receipt
of such request, to terminate this Lease as
of a date specified in such notice which
shall be not less than thirty (30) nor more
than one hundred twenty (120) days after the
date of such notice.
(d) Without limitation of any other provision of
this Section 6.1.16, if, at any time during
the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not
having shares of beneficial interest) and there shall occur
any change or transfer of the ownership or control of fifty
percent (50%) or more of the persons then having power to
participate in the election or appointment of the directors,
trustees or other persons exercising like functions and
managing the affairs of Tenant; or
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(ii) a partnership or association or
otherwise not a natural person (and is not a corporation or a
trust) and there shall occur any change or transfer of the
ownership or control of fifty percent (50%) or more of the
persons who then are members of such partnership or
association or who comprise Tenant;
Tenant shall so notify Landlord and request Landlord's approval thereto, which
approval shall not be unreasonably withheld or delayed. If Landlord fails to
approve such change or transfer of the ownership or control, Landlord may
terminate this Lease by notice to Tenant given within ninety (90) days
thereafter. This subparagraph shall not apply to any change resulting from the
public offering of Tenant's stock nor to any change in the ownership of such
stock thereafter, if Tenant's stock is listed on a recognized security exchange,
or if at least sixty percent (60%) of its voting stock is owned by another
corporation, the voting stock of which is so listed.
(e) Landlord's consent to any assignment or
subletting by Tenant, or to any occupancy of
the Premises by anyone other than Tenant,
voluntarily or by operation of law, in any
specific instance shall not operate as a
waiver in any subsequent instance.
6.1.17. NUISANCE. Not to injure, deface or otherwise harm the
Premises; nor commit any nuisance; nor permit the emission of any objectionable
noise, vibration or odor; nor make, allow or suffer any Waste; nor make any use
of the Premises which is improper, offensive or contrary to any law or ordinance
or which will invalidate or increase the premiums for any insurance on the
Building or its contents.
6.1.18. INSTALLATION, ALTERATIONS OR ADDITIONS. Not to make
any installations, alterations or additions in, to or on the Premises (other
than the Tenant Improvements but including, without limitation, buildings,
lawns, planted areas, walks, roadways, parking and loading areas) nor to permit
the making of any apertures in the walls, partitions, ceilings or floors without
on each occasion obtaining the prior written consent of Landlord and then only
pursuant to plans and specifications approved by Landlord in advance in each
instance. Landlord will not approve any construction, alterations, or additions
requiring unusual expense to readapt the Premises to normal office use on lease
expiration or termination or increasing the cost of construction, insurance or
taxes on the Premises or the Building or of Landlord's Services called for by
Section 5.1 unless Tenant first gives assurances acceptable to Landlord that
such readaptation will be made prior to such expiration or termination without
expense to Landlord and makes provisions acceptable to Landlord for payment of
such increased cost. All such changes and additions shall be part of the
Building except such items as by writing at the time of approval the parties
agree either shall be removed by Tenant on expiration or termination of this
Lease, or shall be removed or left at Tenant's election.
6.1.19. INSURANCE. To maintain:
(a) Public liability insurance including
contractual liability on the Premises
indemnifying Landlord and Tenant against all
claims and demands for (i) injury to or
death of any person, or damage to or loss of
property, on the Premises or adjoining
walks, streets or
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ways, or connected with the use, condition
or occupancy of any thereof unless caused by
the negligence of Landlord or its servants
or agents or (ii) any act, fault or
omission, or other misconduct of Tenant or
its agents, contractors, licensees,
sublessees or invitees, in amounts which
shall, at the beginning of the Term, be at
least equal to the limits set forth in
Section 1.1, and from time to time during
the Term, shall be for such higher limits,
if any, as are customarily carried in the
area in which the Premises are located on
property similar to the Premises and used
for similar purposes, and shall be written
on the "Occurrence Basis" and include Host
Liquor liability insurance if any liquor or
alcohol is served on the Premises.
(b) Worker's compensation insurance in statutory
amounts covering all of Tenant's employees
working in the Premises.
6.1.20. INSURANCE POLICIES. To obtain all policies for
insurance required under the provisions of Section 6.1.19 from responsible
companies qualified to do business in the state in which the Premises are
located and in good standing therein, which companies and the amount of
insurance allocated thereto shall be subject to Landlord's approval, which
approval shall not be unreasonably withheld or delayed. Tenant agrees to furnish
Landlord with certificates of all such insurance which Tenant is obligated to
obtain pursuant to Section 6.1.19 prior to the beginning of the Term and each
renewal policy at least 30 days' prior to the expiration of the policy it
renews. Each such policy shall prohibit cancellation and reduction of coverage
without at least 30 days' prior written notice to Landlord and to the holders of
any mortgages on the Building and/or Land.
6.1.21. LABOR OR MATERIALMEN'S LIENS. To pay promptly when
due the entire cost of any work done on the Premises by Tenant, its agents,
employees, or independent contractors; not to cause or permit any liens for
labor or materials performed or furnished in connection therewith to attach to
the Premises; and to discharge any such liens which may so attach promptly after
notice of the same but in no event later than thirty (30) days thereafter.
ARTICLE VII - CASUALTY OR TAKING
7.1. TERMINATION. In case during the Term all or any substantial
(meaning at least twenty percent (20%) of the square footage) part of the
Premises or of the Building or of the Land or any one or more of them shall be
taken by any public authority or for any public use, or shall be destroyed or
damaged by fire or casualty, or by the action of any public authority, or
Landlord receives compensable damage by reason of anything lawfully done in
pursuance of public or other authority, then this Lease may be terminated at the
election of Landlord. Such election, which may be made notwithstanding the fact
that Landlord's entire interest may have been divested, shall be made by the
giving of notice by Landlord to Tenant within thirty (30) days after such
destruction or damage or taking.
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If during the Term the whole or more than fifty percent (50%) of the
Premises is damaged or destroyed by fire or other casualty, or if the Building
shall be damaged or destroyed by fire or other casualty in such manner that
Tenant is deprived of reasonably commercial access to the Premises, unless, in
either case, such damage or destruction can, in Landlord's reasonable opinion
asserted in a notice ("Landlord's Notice") delivered within thirty (30) days of
such casualty, be fully repaired within twelve (12) months after such fire or
other casualty, or if, once commenced, such damage or destruction is not in fact
repaired within twelve (12) months of such casualty (plus up to an additional
thirty (30) days required by reason of Unavoidable Delays or as defined in
Section 10.7); Tenant shall have the right, by notice to Landlord given within
thirty (30) days after Landlord's Notice, or as the case may be, within thirty
(30) days after the expiration of said 12-month construction period (as so
extended) if the repairs are not so completed, to terminate this Lease,
effective as of the date of such casualty as if that date were the date set
forth in this Lease for the expiration of the Term, and the Fixed Rent and
Additional Rent payable hereunder shall ▇▇▇▇▇. If Tenant shall fail to give
timely notice of the exercise of its right to terminate, Tenant shall have no
right to so terminate this Lease, time being of the essence of the foregoing
provisions.
7.2. RESTORATION. If neither Landlord or Tenant exercises their
respective right to terminate pursuant to Section 7.1, this Lease shall continue
in force and a just proportion of the rent reserved, according to the nature and
extent of the damages sustained by the Premises, shall be abated from the date
of such casualty or taking until the Premises, or what may remain thereof, shall
be put by Landlord in proper condition for use subject to zoning and building
laws or ordinances then in existence, which, unless Landlord or Tenant has
exercised its right to terminate pursuant to Section 7.1, Landlord covenants to
do with reasonable diligence at Landlord's expense, provided that (and based on
Landlord complying with its obligations under Section 5.1.3 hereof) Landlord's
obligations with respect to restoration shall not require Landlord to expend
more than the net proceeds of insurance recovered or damages awarded for such
casualty or taking. The term "net proceeds of insurance recovered or damages
awarded" refers to the gross amount of such insurance or damages less the
expenses of Landlord in connection with the collection of the same, including,
without limitation, fees and expenses for legal and appraisal services.
7.3. AWARD. Landlord reserves to itself any and all rights to
receive awards made for damages to the Premises, Building or Land and the
leasehold hereby created, or any one or more of them, accruing by reason of
exercise of eminent domain or by reason of anything lawfully done in pursuance
of public or other authority. Tenant hereby releases and assigns to Landlord all
Tenant's rights to such awards, and covenants to deliver such further
assignments and assurances thereof as Landlord may from time to time request,
and hereby irrevocably designates and appoints Landlord its attorney-in-fact to
execute and deliver in Tenant's name and behalf all such further assignments
thereof. It is agreed and understood however, that Landlord does not reserve to
itself, and Tenant does not assign to Landlord, any damages payable for (a)
movable trade fixtures installed by Tenant or anybody claiming under Tenant, at
its own expense or (b) relocation expenses recoverable by Tenant from such
authority in a separate action.
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ARTICLE VIII - DEFAULTS
8.1. EVENTS OF DEFAULT. (a) If any default by Tenant continues
after notice, in case of Fixed Rent, Additional Rent or any other monetary
obligation to Landlord for more than ten (10) days, or in any other case for
more than thirty (30) days and such additional time, if any, as is reasonably
necessary to cure the default if the default is of such a nature that it cannot
reasonably be cured in thirty (30) days and Tenant diligently endeavors to cure
such default, or (b) if any assignment for the benefit of creditors shall be
made by Tenant, or by any guarantor of Tenant, or (c) if Tenant's leasehold
interest shall be taken on execution or other process of law in any action
against Tenant, or (d) if a lien or other involuntary encumbrance is filed
against Tenant's leasehold interest, and is not discharged within thirty (30)
days thereafter, or (e) if a petition is filed by Tenant or any guarantor of
Tenant for liquidation, or for reorganization or an arrangement or any other
relief under any provision of the Bankruptcy Code as then in force and effect,
or (f) if an involuntary petition under any of the provisions of said Bankruptcy
Code is filed against Tenant or any guarantor of Tenant and such involuntary
petition is not dismissed within thirty (30) days thereafter, then, and in any
of such cases, Landlord and the agents and servants of Landlord may, in addition
to and not in derogation of any remedies for any preceding breach of covenant,
immediately or at any time thereafter and without further demand or notice, at
Landlord's election, do any one or more of the following: (i) give Tenant notice
stating that this Lease is terminated, effective upon the giving of such notice
or upon a date stated in such notice, as Landlord may elect, in which event this
Lease shall be irrevocably extinguished and terminated as stated in such notice
without any further action, or (ii) with or without process of law, in a lawful
manner enter and repossess the Premises as of Landlord's former estate, and
expel Tenant and those claiming through or under Tenant, and remove its and
their effects, without being guilty of trespass, in which event this Lease shall
be irrevocably extinguished and terminated at the time of such entry, or (iii)
pursue any other rights or remedies permitted by law. Any such termination of
this Lease shall be without prejudice to any remedies which might otherwise be
used for arrears of rent or prior breach of covenant, and in the event of such
termination Tenant shall remain liable under this Lease as hereinafter provided.
Tenant hereby waives all statutory rights (including without limitation rights
of redemption, if any) to the extent such rights may be lawfully waived, and
Landlord, without notice to Tenant, may store Tenant's effects and those of any
person claiming through or under Tenant, at the expense and risk of Tenant, and,
if Landlord so elects, may sell such effects at public auction or private sale
and apply the net proceeds to the payment of all sums due to Landlord from
Tenant, if any, and pay over the balance, if any, to Tenant.
8.2. REMEDIES. In the event that this Lease is terminated under any
of the provisions contained in Section 8.1 or shall be otherwise terminated for
breach of any obligation of Tenant, Tenant covenants to pay forthwith to
Landlord, as compensation, the excess of the total rent reserved for the residue
of the Term over the rental value of the Premises for said residue of the Term.
In calculating the rent reserved, there shall be included, in addition to the
Fixed Rent and Additional Rent, the value of all other consideration agreed to
be paid or performed by Tenant for said residue. Tenant further covenants as an
additional and cumulative obligation after any such ending to pay punctually to
Landlord all the sums and to perform all the obligations which Tenant covenants
in this Lease to pay and to perform in the same manner and to the same extent
and at the same time as if this Lease had not been terminated. In calculating
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the amounts to be paid by Tenant pursuant to the next preceding covenant, Tenant
shall be credited with any amount paid to Landlord as compensation as provided
in the first sentence of this Section 8.2 and also with the net proceeds of any
rent obtained by Landlord by reletting the Premises, after deducting all of
Landlord's expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, fees for legal
services and expenses of preparing the Premises for such reletting, it being
agreed by Tenant that Landlord may (i) relet the Premises or any part or parts
thereof for a term or terms which may at Landlord's option be equal to or less
than or exceed the period which would otherwise have constituted the balance of
the Term and may grant such concessions and free rent as Landlord in its sole
judgment considers advisable or necessary to relet the same and (ii) make such
alterations, repairs and decorations in the Premises as Landlord in its sole
judgment considers advisable or necessary to relet the same, and no action of
Landlord in accordance with the foregoing or failure to relet or to collect rent
under reletting shall operate or be construed to release or reduce Tenant's
liability as aforesaid.
In lieu of any other damages or indemnity and in lieu of full recovery
by Landlord of all sums payable under all the foregoing provisions of this
Section 8.2, Landlord may by notice to Tenant, at any time after this Lease is
terminated under any of the provisions contained in Section 8.1 or is otherwise
terminated for breach of any obligation of Tenant and before such full recovery,
elect to recover, and Tenant shall thereupon pay, as liquidated damages, an
amount equal to the aggregate of the Fixed Rent and Additional Rent accrued in
the twelve (12) months ended next prior to such termination (if there is less
than twelve (12) months remaining in the Term, then such amount shall be
prorated upon the number of months and partial months remaining in the Term),
plus the amount of rent of any kind accrued and unpaid at the time of
termination and less the amount of any recovery by Landlord under the foregoing
provisions of this Section 8.2 up to the time of payment of such liquidated
damages.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
8.3. REMEDIES CUMULATIVE. Any and all rights and remedies which
Landlord may have under this Lease, and at law and equity, shall be cumulative
and shall not be deemed inconsistent with each other, and any two or more of all
such rights and remedies may be exercised at the same time insofar as permitted
by law.
8.4. LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but shall not
be obligated to, cure, at any time, following ten (10) days' prior notice to
Tenant, except in cases of emergency when no notice shall be required, any
default by Tenant under this Lease; and whenever Landlord so elects, all costs
and expenses incurred by Landlord, including reasonable attorneys' fees, in
curing a default shall be paid by Tenant to Landlord as Additional Rent on
demand, together with interest thereon at the Default Rate from the date of
payment by Landlord to the date of payment by Tenant.
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8.5. EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by
Landlord to any act or omission which otherwise would be a breach of any
covenant or condition herein, or any waiver by Landlord of the breach of any
covenant or condition herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing obligation of
any covenant or condition herein, or otherwise, except as to the specific
instance, operate to permit similar acts or omissions.
The failure of Landlord to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this Lease shall
not be deemed a waiver of such violation nor prevent a subsequent act, which
would have originally constituted a violation, from having all the force and
effect of an original violation. The receipt by Landlord of rent with knowledge
of the breach of any covenant of this Lease shall not be deemed to have been a
waiver of such breach by Landlord. No consent or waiver, express or implied, by
Landlord to or of any breach of any agreement or duty shall be construed as a
waiver or consent to or of any other breach of the same or any other agreement
or duty.
8.6. NO ACCORD AND SATISFACTION. No acceptance by Landlord of a
lesser sum than the Fixed Rent, Additional Rent or any other charge then due
shall be deemed to be other than on account of the earliest installment of such
rent or charge due, unless Landlord elects by notice to Tenant to credit such
sum against the most recent installment due, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
or other charge be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy in this Lease provided.
ARTICLE IX - MORTGAGES
9.1. RIGHTS OF MORTGAGE HOLDERS. The word "mortgage" as used herein
includes mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof. The word "holder" shall mean a
mortgagee, and any subsequent holder or holders of a mortgage. Until the holder
of a mortgage shall enter and take possession of the Premises for the purpose of
foreclosure, such holder shall have only such rights of Landlord as are
necessary to preserve the integrity of this Lease as security. Upon entry and
taking possession of the Premises for the purpose of foreclosure, such holder
shall have all the rights of Landlord. Notwithstanding any other provision of
this Lease to the contrary, no such holder of a mortgage shall be liable either
as mortgagee or as assignee, to perform, or be liable in damages for failure to
perform, any of the obligations of Landlord unless and until such holder shall
enter and take possession of the Premises for the purpose of foreclosure. Upon
entry for the purpose of foreclosure, such holder shall be liable to perform all
of the obligations of Landlord, subject to and with the benefit of the
provisions of Section 10.6, provided that a discontinuance of any foreclosure
proceeding shall be deemed a conveyance under said provisions to the owner of
the equity of the Premises.
Tenant shall not pay Fixed Rent, Additional Rent or any other charge
more than ten (10) days prior to the due date thereof. No prepayment of Fixed
Rent, Additional Rent or other charge, no assignment of this Lease and no
agreement to modify so as to reduce the rent, change
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the Term, or otherwise materially change the rights of Landlord under this
Lease, or to relieve Tenant of any obligations or liability under this Lease,
shall be valid unless consented to in writing by Landlord's mortgagees of
record, if any.
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease unless (a) Tenant
shall have first given written notice of Landlord's act or failure to act to
Landlord's mortgagees of record, if any, specifying the act or failure to act on
the part of Landlord which could or would give basis to Tenant's rights and (b)
such mortgagees, after receipt of such notice, have failed or refused to correct
or cure the condition complained of within a reasonable time thereafter, but
nothing contained in this Section 9.1 shall be deemed to impose any obligation
on any such mortgagee to correct or cure any such condition. "Reasonable time"
as used above means and includes a reasonable time to obtain possession of the
mortgaged premises, if the mortgagee elects to do so, and a reasonable time to
correct or cure the condition if such condition is determined to exist. Landlord
agrees to use reasonable efforts to notify Tenant of the identity and address of
any mortgagee of record.
The covenants and agreements contained in this Lease with respect to
the rights, powers and benefits of a holder of a mortgage (including, without
limitation, the covenants and agreements contained in this Section 9.1)
constitute a continuing offer to any person, corporation or other entity, which
by accepting or requiring an assignment of this Lease or by entry or foreclosure
assumes the obligations herein set forth with respect to such holder; such
holder is hereby constituted a party of this Lease as an obligee hereunder to
the same extent as though its name were written hereon as such; and such holder
shall be entitled to enforce such provisions in its own name. Tenant agrees on
request of Landlord to execute and deliver from time to time any agreement which
may be necessary to implement the provisions of this Section 9.1.
9.2. SUPERIORITY OF LEASE OPTION TO SUBORDINATE. Unless the option
set forth below in this Section 9.2 shall be exercised, this Lease shall be
superior to and shall not be subordinate to any mortgage or other voluntary lien
or other encumbrance hereafter placed on the mortgaged premises of which the
Premises are a part. The holder of any such mortgage or other voluntary lien or
other encumbrance shall have the option to subordinate this Lease to the same,
provided that such holder enters into an agreement with Tenant by the terms of
which such holder will agree (a) to recognize the rights of Tenant under this
Lease, (b) to perform Landlord's obligations hereunder arising after the date of
such holder's acquisition of title as hereinafter described, expressly
excluding, however, Landlord's obligations under Article III of this Lease, and
(c) to accept Tenant as tenant of the Premises under the terms and conditions of
this Lease in the event of acquisition of title by such holder through
foreclosure proceedings or otherwise and Tenant will agree to recognize the
holder of such mortgage as Landlord in such event, which agreement shall be made
expressly to bind and inure to the benefit of the successors and assigns of
Tenant and of the holder and upon anyone purchasing the mortgaged premises at
any foreclosure sale. Tenant and Landlord agree to execute and deliver any
appropriate instruments necessary to carry out the agreements contained in this
Section 9.2. Any such mortgage to which this Lease shall be subordinated may
contain such terms, provisions and conditions as the holder deems usual or
customary.
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9.3. NO EXISTING MORTGAGE. Landlord represents and warrants that,
as of the date hereof, there are no mortgages or other voluntary liens on the
Building and/or the Land.
ARTICLE X - MISCELLANEOUS PROVISIONS
10.1. NOTICES FROM ONE PARTY TO THE OTHER. All notices required or
permitted hereunder shall be in writing and addressed, if to the Tenant, to the
address set forth in Section 1. 1 or such other address as Tenant shall have
last designated by notice in writing to Landlord and, if to Landlord, to the
address set forth in Section 1.1 or such other address as Landlord shall have
last designated by notice in writing to Tenant. Any notice shall be deemed duly
given if mailed to such address postage prepaid, registered or certified mail,
return receipt requested, when deposited with the U.S. Postal Service, or if
delivered to such address by hand, when so delivered.
10.2. QUIET ENJOYMENT. Landlord agrees that upon Tenant's paying the
rent and performing and observing the terms, covenants, conditions and
provisions on its part to be performed and observed, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises during the Term without
any manner of hindrance or molestation from Landlord or anyone claiming under
Landlord, subject, however, to the terms of this Lease. Landlord further
represents and warrants that it is the record owner of fee simple title to the
Building and the Land.
10.3. EASEMENTS; CHANGES TO LOT LINES. Landlord reserves the right,
from time to time, to grant easements affecting the Premises or the Building or
the Land and to change or alter existing boundaries of the Land so long as such
easements or such changes or alterations to existing boundaries of the Land do
not unreasonably interfere with Tenant's use of the Premises, and to enter upon
the Premises at reasonable times for purposes of constructing and maintaining
any pipes, wires and other facilities serving any portion of the Land or of the
Building.
10.4. WAIVER OF SUBROGATION. Any casualty insurance carried by
either party with respect to the Premises, the Building or property therein or
occurrences thereon shall include a clause or endorsement denying to the insurer
rights of subrogation against the other party to the extent rights have been
waived by the insured prior to occurrence of injury or loss, provided that such
clause or endorsement is obtainable without payment of an additional premium. If
such clause or endorsement is obtainable upon payment of an additional premium,
then the party benefiting from such clause or endorsement may request the other
party to obtain it and shall reimburse the other party for the cost of such
additional premium. Each party, notwithstanding any provisions of this Lease to
the contrary, hereby waives any rights of recovery against the other for injury
or loss due to hazards covered by such insurance to the extent such party's
policy permits such waiver of subrogation and then only with respect to sums
which are collectible thereunder.
10.5. LEASE NOT TO BE RECORDED. Tenant agrees that it will not
record this Lease. Both parties shall, upon the request of either, execute and
deliver a notice of this Lease in such form, if any, as may be permitted by
applicable statute. If this Lease is terminated before the scheduled expiration
date of the Term of this Lease the parties shall execute,
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deliver and record an instrument acknowledging such fact and the actual date of
termination of this Lease, and Tenant hereby appoints Landlord its
attorney-in-fact, coupled with an interest, with full power of substitution to
execute such instrument.
10.6. BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY. The
obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No owner of the Premises shall be liable under this
Lease except for breaches of Landlord's obligations occurring while owner of the
Premises. The obligations of Landlord shall be binding upon the assets of
Landlord which comprise the Land and Building but not upon other assets of
Landlord. No partner, trustee, stockholder, member, officer, director, employee
or beneficiary (or the partners, trustees, stockholders, officers, directors or
employees of any such beneficiary) of Landlord shall be personally liable under
this Lease and Tenant shall look solely to Landlord's interest in the Premises
in pursuit of its remedies upon an event of default hereunder, and the general
assets of the partners, trustees, stockholders, members, officers, employees or
beneficiaries (and the partners, trustees, stockholders, members, officers,
directors or employees of any such beneficiary) of Landlord shall not be subject
to levy, execution or other enforcement procedure for the satisfaction of the
remedies of Tenant; provided that the foregoing provisions of this sentence
shall not constitute a waiver of any obligation evidenced by this Lease and
provided further that the foregoing provisions of this sentence shall not limit
the right of Tenant to name Landlord or any individual partner or trustee
thereof as party defendant in any action or suit in connection with this Lease
so long as no personal money judgment shall be asked for or taken against any
individual partner, trustee, stockholder, member, officer, employee or
beneficiary of Landlord.
10.7. UNAVOIDABLE DELAYS. In any case where either party hereto is
required to do any act, delays caused by or resulting from Acts of God, war,
civil commotion, fire, flood or other casualty, labor difficulties, shortages of
labor, materials or equipment, government regulations, unusually severe weather,
or other causes beyond such party's reasonable control (collectively,
"Unavoidable Delays") shall not be counted in determining the time during which
work shall be completed, whether such time be designated by a fixed date, a
fixed time or a "reasonable time," and such time shall be deemed to be extended
by the period of such delay.
10.8. LANDLORD'S DEFAULT. Landlord shall not be deemed to be in
default in the performance of any of its obligations hereunder unless it shall
fail to perform such obligations and such failure shall continue for a period of
30 days or such additional time as is reasonably required to correct any such
default after notice has been given by Tenant to Landlord specifying the nature
of Landlord's alleged default. Tenant shall have no right for any such default
to offset or counterclaim against any rent due hereunder. Notwithstanding the
foregoing, if Landlord is unable to perform any of its obligations hereunder in
an emergency situation, Tenant shall be permitted to take such actions as may be
reasonably necessary to prevent or minimize any injury or damage to persons or
property. Upon receipt of documentation reasonably satisfactory to Landlord,
Landlord shall promptly reimburse Tenant for all costs and expenses reasonably
incurred by Tenant in taking such actions.
10.9. BROKERAGE. Each party warrants and represents to the other
that it has had no dealings with any broker or agent in connection with this
Lease other than the Brokers set forth
-30-
in Article I and covenants to defend the other party with counsel approved by
such other party, hold harmless and indemnify Landlord from and against any and
all cost, expense or liability for any compensation, commissions and charges
claimed by any broker or agent other than the Brokers set forth in Article I
with respect to Tenant's dealings in connection with this Lease or the
negotiation thereof. Landlord agrees that it shall be solely responsible for the
payment of any brokerage commission due to the Brokers listed in Article I,
notwithstanding that Hunneman Commercial Company has acted as broker for Tenant.
10.10. APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed
by and construed in accordance with the laws of the state in which the Premises
are located. If any term, covenant, condition or provision of this Lease or the
application thereof to any person or circumstances shall be declared invalid, or
unenforceable by the final ruling of a court of competent jurisdiction having
final review, the remaining terms, covenants, conditions and provisions of this
Lease and their application to persons or circumstances shall not be affected
thereby and shall continue to be enforced and recognized as valid agreements of
the parties, and in the place of such invalid or unenforceable provision, there
shall be substituted a like, but valid and enforceable provision which comports
to the findings of the aforesaid court and most nearly accomplishes the original
intention of the parties.
There are no prior oral or written agreements between Landlord and
Tenant affecting this Lease. This Lease may be amended, and the provisions
hereof may be waived or modified, only by instruments in writing executed by
Landlord and Tenant.
The titles of the several Articles and Sections contained herein are
for convenience only and shall not be considered in construing this Lease.
Unless repugnant to the context, the words "Landlord" and `Tenant"
appearing in this Lease shall be construed to mean those named above and their
respective heirs, executors, administrators, successors and assigns, and those
claiming through or under them respectively. If there be more than one tenant
the obligations imposed by this Lease upon Tenant shall be joint and several.
10.11. SUBMISSION NOT AN OFFER. The submission of a draft of this
Lease or a summary of some or all of its provisions does not constitute an offer
to lease or demise the Premises, it being understood and agreed that neither
Landlord nor Tenant shall be legally bound with respect to the leasing of the
Premises unless and until this Lease has been executed by both Landlord and
Tenant and a fully executed copy delivered to each of them.
10.12. SECURITY DEPOSIT. On or before the date hereof Tenant shall
provide Landlord, as a condition of this Lease, a security deposit in the amount
of $150,000, as security for the performance of the obligations of Tenant
hereunder in accordance with the following requirements.
If Tenant shall fail to perform any of its obligations under this
Lease, Landlord may, but shall not be obligated to, apply the security deposit
to the extent necessary to cure the default, and Tenant shall be obligated to
reinstate the security deposit. Tenant shall not have the right to call upon
Landlord to draw upon all or any part of the security deposit to cure any
default or
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fulfill any obligation of Tenant, but such use shall be solely in the discretion
of Landlord. Provided that Landlord gives Tenant notice of the name of such
grantee or transferee, upon any conveyance by Landlord of its interest under
this Lease, the security deposit may be delivered by Landlord to Landlord's
grantee or transferee. Upon any such delivery, Tenant hereby releases Landlord
herein named of any and all liability with respect to the security deposit, its
application and return, and Tenant agrees to look solely to such grantee or
transferee. It is further understood that this provision shall also apply to
subsequent grantees and transferees.
10.13. SIGNAGE. The name and location of Tenant shall be listed in
building standard format on the building directory furnished by Landlord in the
main lobby of the Building. In addition, the name of Tenant shall be placed by
Landlord in building standard format on Tenant's main entrance door to the
Premises. In addition, Tenant, at Tenant's sole cost and expense, shall replace
the existing backlight sign on the facade of the Building, the location, size,
color and style of which shall be subject to Landlord's prior written approval,
which approval shall not be unreasonably withheld.
10.14. CONDITION PRECEDENT. The parties hereto acknowledge and agree
that the rights and obligations of Landlord and Tenant under this Lease, and the
commencement of the Term hereunder are subject to the vacation of all or a
portion of the Premises by the existing tenant, NetLink, Inc. ("NetLink") and
the early termination of NetLink's lease with Landlord (the "NetLink Lease").
Landlord shall use reasonable efforts to effect the early termination of the
NetLink Lease and the vacation of the Premises by NetLink on or before March 31,
1999, as evidenced by a written agreement to that effect executed and delivered
to Landlord on or before 5:00 p.m. on March 16, 1999 (the "NetLink Termination
Agreement"). If NetLink has not executed and delivered to Landlord the NetLink
Termination Agreement, in a form satisfactory to Landlord, on or before March
16, 1999, then at any time thereafter up to and including March 31, 1999, Tenant
may provide Landlord with a written notice of its election to terminate this
Lease (the "Termination Notice"). If the Termination Notice is given, then this
Lease shall terminate and be null and void and neither party shall have any
further liability to the other hereunder. If a Termination Notice is not given
on or before March 31, 1999, then this Lease shall remain in full force and
effect without any further action by the parties hereto.
WITNESS the execution hereof under seal on the day and year first above
written.
Landlord:
FRAMINGHAM - 1881 ASSOCIATES
by its agent, ▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇
SERVICES LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ Properties
Company, Inc., its General Partner
By:
----------------------------------
Name:
Title:
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Tenant:
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: CFO
Hereunto duly authorized
EXHIBIT A
Plan of Premises
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EXHIBIT B
Plan of Land
Map of the Plan of Land not included; however, it is illegible on the
hardcopy of the lease
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EXHIBIT C
Rules and Regulations
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Rules and Regulations
1. The entrances, lobbies, passages, corridors, elevators, halls, courts,
sidewalks, vestibules, and stairways shall not be encumbered or
obstructed by Tenant, Tenant's agents, servants, employees, licensees
or visitors or used by them for any purposes other than ingress or
egress to and from the Premises.
2. The moving in or out of all safes, freight, furniture, or bulky
matter of any description shall take place during the hours which
Landlord may determine from time to time. Landlord reserves the right
to inspect all freight and bulky matter to be brought into the
Building and to exclude from the Building all freight and bulky matter
which violates any of these Rules and Regulations or the Lease of
which these Rules and Regulations are a part. Landlord reserves the
right to have Landlord's structural engineer review Tenant's floor
loads on the Premises. Such review shall be at Landlord's expense,
unless Landlord's structural engineer finds that Tenant has violated
the floor load requirements of this Lease, in which case such review
shall be at Tenant's expense.
3. Tenant, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish,
paper, articles, or objects of any kind whatsoever outside the doors of
the Premises or in the corridors or passageways of the Building. No
animals or birds shall be brought or kept in or about the Building.
Bicycles shall not be permitted in the Building.
4. Tenant shall not place objects against glass partitions or doors or
windows or adjacent to any common space which would be unsightly from
the Building corridors or from the exterior of the Building and will
promptly remove the same upon notice from Landlord.
5. Tenant shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electric or electrical
devices or other devices that emit sound waves or are dangerous to
other tenants and occupants of the Building or that would interfere
with the operation of any device or equipment or radio or television
broadcasting or reception from or within the Building or elsewhere, or
with the operation of roads or highways in the vicinity of the
Building, and shall not place or install any projections, antennae,
aerials, or similar devices inside or outside of the Premises, without
the prior written approval of Landlord.
6. Tenant may not (without Landlord's approval therefor, which approval
will be signified on Tenant's Plans submitted pursuant to the Lease)
and Tenant shall not permit or suffer anyone to: (a) ▇▇▇▇ in the
Premises; (b) place vending or
-36-
dispensing machines of any kind in or about the Premises; (c) at any
time sell, purchase or give away permit the sale, purchase, or gift of
food in any form.
7. Tenant shall not (a) use the Premises for lodging, manufacturing or for
any immoral or illegal purposes; (b) use the Premises to engage in the
manufacture or sale of, or permit the use of spirituous, fermented,
intoxicating or alcoholic beverages on the Premises; (c) use the
Premises to engage in the manufacture or sale of, or permit the use of,
any illegal drugs on the Premises.
8. No awning or other projections shall be attached to the outside walls
or windows. No curtains, blinds, shades, screens or signs other than
those furnished by Landlord shall be attached to, hung in, or used in
connection with any window or door of the Premises without prior
written consent of Landlord.
9. No signs, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or
inside of the Premises if visible from outside of the Premises.
Interior signs on doors shall be painted or affixed for Tenant by
Landlord.
10. Tenant shall not use the name of the Building or use pictures or
illustrations of the Building in advertising or other publicity without
prior written consent of Landlord. Landlord shall have the right to
prohibit any advertising by Tenant which, in Landlord's opinion, tends
to impair the reputation of the Building or its desirability for
offices, and upon written notice from Landlord, Tenant will refrain
from or discontinue such advertising.
11. Door keys for doors in the Premises will be furnished at the
Commencement of the Lease by Landlord. Tenant shall not affix
additional locks on doors and shall purchase duplicate keys only from
Landlord and will provide to Landlord the means of opening of safes,
cabinets, or vaults left on the Premises upon the expiration or sooner
termination of the Term of this lease. In the event of the loss of any
keys so furnished by Landlord, Tenant shall pay to Landlord the cost
thereof.
12. Tenant shall cooperate and participate in all security programs
affecting the Building.
13. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured.
14. Tenant shall not make any room-to-room canvass to solicit business from
other tenants in the Building, and shall not exhibit, sell or offer to
sell, use, rent or exchange any item or services in or from the
Premises unless ordinarily embraced within Tenant's use of the Premises
as specified in its Lease. Canvassing, soliciting and peddling in the
Building are prohibited and Tenant shall cooperate
-37-
to prevent the same. Peddlers, solicitors and beggars shall be
reported to the Management Office.
15. Tenant shall not ▇▇▇▇, paint, drill into, or in any way deface any part
of the Building or Premises. No boring, driving of nails, or screws,
cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. Tenant shall
not install any resilient tile or similar floor covering the Premises
except with the prior written approval of Landlord. The use of cement
or other similar adhesive material is expressly prohibited.
16. Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and shall refrain from
attempting to adjust controls. Tenant shall keep corridor doors closed
except when being used for access.
17. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed,
and no sweepings, rubbish, rags, or other substances shall be thrown
therein.
18. Building employees shall not be required to perform, and shall not be
requested by any tenant or occupant to perform, any work outside of
their regular duties, unless under specific instructions from the
office of the Managing Agent of the Building.
19. Tenant may request heating and/or air conditioning in the common
areas of the Building during other periods in addition to normal
operating hours (Monday through Friday) from 8:00 a.m. to 6:00 p.m.,
except on holidays recognized by the federal, state or local
government, and Saturdays from 8:00 a.m. to 1:00 by submitting its
request in writing to the office of the Managing Agent of the Building
no later than 2:00 p.m. the preceding work day (Monday through Friday)
on forms available from the office of the Managing Agent. The request
shall clearly state the start and stop hours of the "offhour" service.
Tenant shall submit to the Managing Agent a list of personnel
authorized to make such request. Tenant shall be charged for such
operation in the form of Additional Rent. Such charges are currently
$25 per hour per floor, but may be adjusted on a fair and reasonable
basis from time to time by the Managing Agent to reflect the
additional operating costs involved.
20. Smoking is prohibited in all common areas of the Building.
-38-
EXHIBIT D
Landlord's Services
I CLEANING
A. General
1. All cleaning work will be performed between 6 p.m. and
12 midnight, Monday through Friday, unless otherwise
necessary for stripping, waxing, etc.
2. Abnormal waste removal (e.g. bulk packaging, wood or
cardboard crates, refuse from food operations, etc.)
shall be Tenant's responsibility.
B. Daily Operations (5 times per week)
1. Lavatories
a.Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with
disinfectant
c. Wash all mirrors, basins, bowls, urinals.
d. Spot clean toilet partitions.
e. Empty and disinfect sanitary napkin disposal
receptacles.
f. Refill toilet tissue, towel, soap, and
sanitary napkin dispensers.
3. Public Areas
a. Wipe down entrance doors and clean glass
(interior and exterior).
b. Vacuum elevator carpets and wipe down doors
and walls.
c. Clean water coolers.
C. Weekly Operations
1. Lavatories, Public Areas
a. Hand-dust and wipe clean all horizontal
surfaces with treated cloths to include
furniture, office equipment,
-39-
window ▇▇▇▇▇, door ledges, chair rails,
baseboards, convector tops, etc., within
normal reach.
b. Remove finger marks from private entrance
doors, light switches, and doorways.
c. Sweep all stairways.
D. Monthly Operations
1. Public Areas
a.Thoroughly vacuum seat cushions on chairs, sofas,
etc.
b. Vacuum and dust grillwork.
2. Lavatories
a.Wash down interior walls and toilet partitions.
E. As Required and Weather Permitting
1. Entire Building
a. Clean inside of all windows.
b. Clean outside of all windows.
F. Yearly
1. Public Areas
a. Strip and wax all resilient tile floor areas.
2. Maintenance of any additional or special air
conditioning equipment and the associated operating
cost will be at Tenant's expense.
II. WATER
Hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
III. ELEVATORS (if Building is Elevatored)
Elevators for the use of all tenants and the general public for access to
and from all floors of the building. Programming of elevators (including,
but not limited to, service elevators) shall be as Landlord from time to
time determines best for the Building as a whole.
-40-
IV. CAFETERIA AND VENDING INSTALLATIONS
1. Any space to be used primarily for lunchroom or cafeteria operation
shall be Tenant's responsibility to keep clean and sanitary, it being
understood that Landlord's approval of such use must be first obtained
in writing.
2. Vending machines or refreshment service installations by Tenant must be
approved by Landlord in writing and shall be restricted in use to
employees and business callers. All cleaning necessitated by such
installations shall be at Tenant's expense.
-41-
EXHIBIT E
Form of Landlord's Waiver and Consent
LANDLORD'S CONSENT AND WAIVER OF LIEN
PREMISES: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
TENANT: ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
FOR VALUABLE CONSIDERATION, the undersigned, being the owner and
landlord ("LANDLORD") of the above-described Premises, hereby waives any claim
against or lien upon the inventory, equipment and proceeds therefrom (and
replacements, substitutions and additions for or to the foregoing), installed or
to be installed in the aforesaid Premises in which (the "BANK"), its successors
or assigns, now or hereafter holds a security interest; provided such inventory
or equipment does not become part of the real estate.
Landlord further agrees that as long as the lease with ▇▇▇▇▇▇▇▇▇.▇▇▇,
Inc. for the Premises remains in force and effect, to interpose no objections to
the entry by the Bank, its successors and assigns, upon said Premises for the
purpose of removing and/or liquidating its collateral in the event of default by
Tenant in its obligations to the Bank, provided that (a) the Bank restore any
walls, windows, doors, partitions, roofs, floors or other parts of the Premises
damaged by it in the course of removal to their condition at the time of the
Bank's entry into possession. The undersigned agrees that the Bank shall have
the right to cure any default of ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. under said lease.
Landlord represents that a true and correct copy of the lease of said
Premises is attached hereto and acknowledges that to the best of its knowledge,
there are currently no uncured defaults on the part of Tenant. Landlord shall
endeavor to give the Bank a copy of any notice terminating the rights of Tenant
hereunder, but such failure shall not nullify or invalidate any
-42-
notice sent to Tenant or be a default by Landlord under this document. Landlord
agrees that the Bank shall have the right for as long as the lease remains
outstanding to either (a) enter into possession for the purpose of removing and
liquidating its collateral in accordance with the preceding paragraph, or (b)
cure any default which can be cured by the payment or expenditure of money and
thereupon to assume all of the obligations and rights of Tenant under the lease
for as long as the Bank is in possession of such Premises.
The acceptance of such rents or other sums from the Bank will not bar
Landlord's rights against Tenant under the lease.
SIGNED AND SEALED on behalf of the successors and
assigns of the undersigned this ____ day of ______________________, 19__.
(Landlord)
FRAMINGHAM - 1881 ASSOCIATES by its agent,
▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇ SERVICES LIMITED
PARTNERSHIP
By: ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ Properties Company,
Inc., its General Partner
By:
---------------------------------------------------
Name:
-43-
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("First Amendment") dated as of December 21,
1999, by and between BerTech 1881 LLC, a Delaware limited liability company
("Landlord"), and ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("Tenant").
WITNESSETH:
WHEREAS, Framingham - 1881 Associates, the predecessor in interest
to Landlord, and Tenant entered into that certain lease dated as of March 16,
1999 (the "Lease") for approximately 32,787 rentable square feet (the
"Premises") located on the second (2nd) floor of the building ("Building") known
and numbered as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇; and
WHEREAS, Landlord and Tenant wish to (a) expand the Premises to
include the remainder of the rentable square footage of the Building, and (b)
otherwise amend the terms of the Lease in certain particulars, all as more
specifically set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. New Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Lease. The Lease is hereby
amended by adding to Section 1.1 thereof the following defined terms:
a. Additional Premises. "Additional Premises: Approximately 18,387
rentable square feet located on the first (1st) floor of the
Building (the "First Additional Premises") and approximately 13,165
square feet on the first (1st) floor of the Building (the "Second
Additional Premises"), both spaces as shown on Exhibit F (the First
Additional Premises and the Second Additional Premises are sometimes
hereinafter collectively referred to as the "Additional Premises.""
b. Rent Commencement Date for the First Additional Premises. "First
Additional Premises Rent Commencement Date: January 1, 2000."
c. Rent Commencement Date for the Second Additional Premises. "Second
Additional Premises Rent Commencement Date: July 1, 2000."
d. Commencement Date for the Additional Premises. "Commencement Date
for the Additional Premises: January 1, 2000"
e. Initial Fiscal Year for Operating Expenses for the Additional
Premises: "Initial Fiscal Year for Operating Expenses for the
Additional Premises: Calendar Year 2000."
f. Initial Calendar Year for Real Estate Taxes for the Additional
Premises: "Initial Calendar Year for Real Estate Taxes for the
Additional Premises: Calendar Year 2000, meaning the last two (2)
quarters of fiscal real estate tax year 2000 (January 1, 2000 - June
30, 2000) and the first two (2) quarters of fiscal real estate tax
year 2001 (July 1, 2000 - December 31, 2000), such quarters to be
based upon the final tax ▇▇▇▇ for the respective fiscal real estate
tax years, rather than on estimated quarterly bills."
2. Revised Definitions. Section 1.1 of the Lease is hereby further amended as
follows:
a. Landlord. The definition of Landlord is deleted in its entirety and
shall be replaced by the following text:
"BerTech 1881 LLC, a Delaware limited liability company"
b. Landlord's & Managing Agent's Address: The definition of Landlord's
& Managing Agent's Address is deleted in its entirety and shall be
replaced by the following text:
"c/o Berkeley Investments, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇"
c. Landlord's Representative: The definition of Landlord's
Representative is deleted in its entirety and shall be replaced by
the following text:
"▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇."
d. Managing Agent: The definition of Managing Agent is deleted in its
entirety and shall be replaced by the following text:
"Berkeley Management, Inc."
e. Tenant's Address: The definition of Tenant's Address (for Notice and
Billing) is deleted in its entirety and shall be replaced by the
following text:
"1881 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇"
f. Annual Fixed Rent. The definition of Annual Fixed Rent is deleted in
its entirety and shall be replaced by the following text:
"Term Commencement Date - March 31, 2001: $20.00 p.r.s.f April 1,
2001 - December 31, 2004: $23.00 p.r.s.f."
g. Parking Facilities. The definition of Parking Facilities shall be
deleted in its entirety and replaced with the following text:
"Tenant, its employees, customers and visitors shall have the right
to the exclusive use of all parking facilities as may adjoin or be
available to the Building."
h. Premises. The following text shall be added to the definition of
"Premises":
"From and after the Commencement Date for the Additional Premises,
'Premises' shall also include the Additional Premises, except as
specifically set forth herein."
i. Tenant's Proportionate Share. The definition of Tenant's
Proportionate Share shall be deleted.
j. Term Expiration Date. The definition of "Term Expiration Date" shall
be deleted and the phrase "December 31, 2004" shall be inserted in
place thereof.
k. Right of First Refusal. The definition of Right of First Refusal and
is hereby deleted in its entirety.
3. Premises. Section 2.1.1(b) of the Lease is hereby amended as follows:
(a) The phrase "the right to use in common with others entitled thereto"
in Section 2.1.1(b) shall be deleted and the phrase "the right to
use in common with the Landlord" shall be inserted in place thereof.
(b) The number "two (2)" in the fourth line of Section 2.1.1(b) shall be
deleted and the word "all" shall be inserted in place thereof.
(c) The second sentence of Section 2.1.1(b), which begins with the
phrase "Notwithstanding the foregoing" shall not be applicable under
the Lease unless Tenant (i) assigns any portion of the Premises to a
third party, (ii) sublets any portion of the Premises to a third
party, or (iii) returns any portion of the Premises to Landlord.
4. Right of First Refusal: The Lease is hereby amended by deleting Section
2.1.2 of the Lease in its entirety.
5. Condition of Additional Premises. The Lease shall be amended by inserting
the following text at the end of Section 3.1.1:
"Subject to the provisions of this Article III, and to the extent of
Landlord's ongoing maintenance, repair and service obligations as
expressly set forth in the Lease, Tenant hereby agrees to accept the
Additional Premises "AS IS", "AS SHOWN," and "WITH ALL FAULTS" as of
the Commencement Date for the Additional Premises. Tenant further
acknowledges that neither Landlord nor any agent of Landlord has
made any representation, express or implied, written, verbal or
otherwise as to the condition of the Additional Premises or the
suitability of the Additional Premises for Tenant's intended use.
6. Tenant Allowance. The Lease shall be amended by inserting the following
Section 3.1.4 in the Lease:
"3.1.4. Landlord shall provide Tenant with an allowance equal to the
lesser of (i) the costs of the Additional Tenant Improvements, as
defined below, or (ii) $3.00 per rentable square foot for the
Additional Premises (the "Additional Premises Allowance") which
shall be used exclusively for Tenant Improvements to the Additional
Premises (the "Additional Tenant Improvements"). Tenant will provide
Landlord with reasonable evidence and sufficient back up
documentation of the costs of the Additional Tenant Improvements,
which costs may include those types of costs referred to in Section
3.1.3 of the Lease. Landlord shall remit the Additional Premises
Allowance to Tenant pursuant to the terms of Section 3.1.3 of the
Lease. The Additional Tenant Improvements shall be subject to the
Landlord's approval as set forth in Section 3.1.2 herein and shall
be constructed in a good and workerlike manner in
accordance with all applicable laws, rules, ordinances and
regulations. Tenant shall indemnify and hold Landlord harmless from
any and all costs, expenses, losses or damages in connection with
the installation and construction of the Additional Tenant
Improvements. All Additional Tenant Improvements made by Tenant
shall be subject to all of the terms and conditions of the Lease,
including without limitation, the provisions of 6.1.4 - 6.1.6, and
6.1.18 - 6.1.21 hereof."
7. Operating Expenses. Article IV of the Lease is hereby amended as follows:
a. Initial Base Cost for the Additional Premises: The following text
should be added to the end of Section 4.3.1:
"Initial Base Cost for the Additional Premises" shall mean all
Operating Expenses of the Building for the Initial Fiscal Year for
Operating Expenses for the Additional Premises."
b. Tenant's Proportionate Share: Section 4.3.2 of the Lease shall be
amended by deleting all references to the phrase "Tenant's Proportionate
Share" therein and inserting the phrase "51%" in place thereof.
c. Operating Expenses over the Initial Base Cost for the Additional
Premises. Article IV of the Lease is hereby amended by inserting the
following Section 4.3.2(a):
"4.3.2(a) With respect to the Additional Premises, for and with
respect to each Fiscal Year, Tenant shall pay as Additional Rent for
the Additional Premises 49% of the increase in Operating Expenses
over the Initial Base Cost for the Additional Premises, on the
following terms and conditions:
(i) After the end of the first Fiscal Year immediately following
the Initial Fiscal Year for Operating Expenses for the
Additional Premises (the "First Full Fiscal Lease Year for the
Additional Premises"), if Operating Expenses for such First
Full Fiscal Lease Year for the Additional Premises exceed the
Initial Base Cost for the Additional Premises, Landlord shall
submit a notice to Tenant reasonably detailing such excess,
and Tenant shall pay 49% of such excess within thirty (30)
days after such notice.
(ii) During each Fiscal Year following the First Full Fiscal Lease
Year for the Additional Premises, Tenant shall pay
to Landlord, in monthly installments together with monthly
Fixed Rent, an amount estimated by Landlord as one-twelfth of
49% of the excess of Operating Expenses for such Fiscal Year
over the Initial Base Cost for the Additional Premises.
(iii) Within one hundred twenty (120) days (or as soon thereafter as
possible) following the end of each Fiscal Year following the
First Full Fiscal Year for the Additional Premises, Landlord
shall provide Tenant a statement of such year's actual
Operating Expenses, showing the actual increase in Operating
Expenses over the Initial Base Cost for the Additional
Premises (the "Annual Operating Expense Statement for the
Additional Premises"). If such Annual Operating Expense
Statement for the Additional Premises shows that Tenant's
monthly payments exceed 49% of the actual increase incurred
for the applicable Fiscal Year, then Tenant may deduct such
overpayments from its next payment or payments of monthly rent
unless the Term has expired, in which case Landlord shall
refund such overpayment to Tenant within thirty (30) days
after such Annual Operating Expense Statement for the
Additional Premises. If such Annual Operating Expense
Statement for the Additional Premises shows that 49% of the
actual increase incurred for the applicable Fiscal Year
exceeds Tenant's monthly payments for the applicable Fiscal
Year, then Tenant shall within thirty (30) days after such
statement pay the total amount of such deficiency to Landlord.
(iv) Each and every of the aforesaid projected escalated amounts,
as well as any other amounts which are owed by Tenant to
Landlord under this Lease other than Annual Fixed Rent,
whether or not identified as "Additional Rent" hereunder, and
whether requiring lump sum payment or constituting projected
monthly amounts payable with the Annual Fixed Rent, shall for
all purposes be treated and considered as Additional Rent and
the failure of Tenant to pay the same as and when due in
advance and without demand shall have the same effect as
failure to pay any installment of the Annual Fixed Rent, and
shall afford Landlord all remedies provided in this Lease
therefor."
8. Real Estate Taxes. Article IV of the Lease is hereby further amended as
follows:
a. Initial Tax Cost for the Additional Premises: The following text should
be added to the end of Section 4.4.1:
"Initial Tax Cost for the Additional Premises" shall mean all Real
Estate Taxes assessed against the Building and the Land for the
Initial Calendar Year for Real Estate Taxes for the Additional
Premises."
b. Tenant's Proportionate Share: Section 4.4.2 of the Lease shall be
amended by deleting all references to the phrase "Tenant's Proportionate
Share" therein and inserting the phrase "51%" in place thereof.
c. Escalation of Real Estate Taxes for the Additional Premises. The
following Section 4.4.5 shall be added to Article IV of the Lease:
"4.4.5: With respect to the Additional Premises, for and with
respect to each calendar year, Tenant shall pay as Additional Rent
for the Additional Premises the increase in Real Estate Taxes over
the Initial Calendar Year for Real Estate Taxes for the Additional
Premises over the Initial Tax Cost for the Additional Premises, on
the following terms and conditions:
(i) After the end of the first calendar year following the
Initial Calendar Year for Real Estate Taxes for the
Additional Premises, if Real Estate Taxes exceed the
Initial Tax Cost for the Additional Premises, Landlord
shall submit a notice to Tenant reasonably detailing
such excess and Tenant shall pay such 49% of such excess
within thirty (30) days after such notice.
(ii) During each calendar year following the Initial Calendar
Year for Real Estate Taxes for the Additional Premises,
Tenant shall pay to Landlord, in monthly installments
together with monthly Fixed Rent, an amount estimated by
Landlord as one-twelfth of 49% of the excess of Real
Estate Taxes for such calendar year over the Initial Tax
Cost for the Additional Premises.
(iii) Within one hundred twenty (120) days (or as soon
thereafter as possible) following the end of each
calendar year, Landlord shall provide Tenant with a
statement of such year's actual Real Estate Taxes,
showing the actual increase in Real Estate Taxes
over the Initial Tax Cost for the Additional Premises.
If such statement shows that Tenant's monthly payments
exceed 49% of the actual increase incurred for the
applicable calendar year, then Tenant may deduct such
overpayments from its next payment or payments of
monthly rent unless the Term has expired, in which case
Landlord shall refund such overpayment to Tenant within
thirty (30) days of such statement. If such statement
shows that 49% of the actual increase incurred for the
applicable calendar year exceeds the Tenant's monthly
payments for the applicable calendar year, then Tenant
shall within thirty (30) days after such statement pay
the total amount of such deficiency to Landlord.
(iv) Each and every of the aforesaid projected escalation
amounts shall for all purposes be treated and considered
as Additional Rent.
(v) Inasmuch as the Town of Framingham assesses Real Estate
Taxes on a fiscal tax year basis (July 1 - June 30), the
Real Estate Taxes for each calendar year shall be the
sum of the last two (2) quarters of the Tax Year that
ends on June 30 of said calendar year and the first two
(2) quarters of the Tax Year that ends on June 30 of the
following calendar year, such quarters to be based upon
the final tax ▇▇▇▇ for the respective fiscal real estate
tax years, rather than on estimated quarterly bills."
d. Calculation of Real Estate Taxes for Partial Calendar Year: The
following Section 4.4.6 shall be added to Article IV of the Lease:
"4.4.6 Should this Lease terminate at any time other than the first
day of a calendar year, the Additional Rent referred to in paragraph 4.4.5 with
respect to the Additional Premises shall be calculated for the calendar year in
which the expiration of the Term occurs only by the following formula:
Days Under Lease x Additional Rent = Adjusted Additional Rent
---------------- for the calendar year in
365 which termination occurred."
e. Occupancy Rate for Building: The following Section 4.4.7 shall be added
to Article IV of the Lease:
"4.4.7 In any calendar year when the Building has an average annual
occupancy rate of less than 95% then, for purposes of Section 4.4.5, the Real
Estate Taxes will be extrapolated as though the Building were 95% occupied. In
any calendar year when the Building has an average annual occupancy rate of 95%
or more, then the Real Estate Taxes for the Additional Premises will be the
actual Real Estate Taxes. Landlord shall credit against Tenant's next ensuing
payment of Additional Rent any excess payments made by Tenant to reflect any
abatement in Real Estate Taxes obtained by Landlord with respect to any calendar
year. Expenditures for legal fees and other expenses incurred in obtaining an
abatement may be charges against the amount of Real Estate Taxes abated."
9. Subletting. Article VI of the Lease is hereby amended as follows:
a. Consent to Sublease. Section 6.1.16 of the Lease is hereby amended by
inserting the following Section 6.1.16(f):
"(f) Notwithstanding any other provision of this Section 6.1.16, in
the event that Tenant requests Landlord's consent to any sublease of
all or a portion of the Premises, such consent shall not be
unreasonably withheld or delayed and Landlord shall grant or
withhold consent in any event within thirty (30) days of such
request. Tenant's written request for Landlord's consent shall
include: (1) financial statements for the proposed subtenant for the
past two (2) years prepared in accordance with generally accepted
accounting principles, (2) a detailed description of the business
the subtenant intends to operate at the Premises, (3) the proposed
effective date of the sublease, (4) a copy of the proposed sublease
agreement which includes all of the terms and conditions of the
proposed sublease, and (5) a detailed description of any ownership
or commercial relationship between Tenant and the proposed
subtenant. If the obligations of the proposed subtenant will be
guaranteed by any person or entity, Tenant's written request shall
not be considered complete until the information described in (1) of
the previous sentence has been provided with respect to each
proposed guarantor.
The following terms and conditions shall be applicable to any
sublease:
(i) Regardless of Landlord's consent, no sublease shall release
Tenant from Tenant's obligations hereunder or alter the primary liability
of Tenant to pay the rent and other sums due Landlord hereunder and to
perform all other obligations to be performed by Tenant hereunder.
(ii) Landlord may accept rent from any person other than Tenant
pending approval or disapproval of a subletting.
(iii) Neither a delay in the approval or disapproval of a sublease,
nor the acceptance of rent, shall constitute a waiver or estoppel of
Landlord's right to exercise its rights and remedies for the breach of any
of the terms or conditions of this Article VI.
(iv) The consent by Landlord to any sublease shall not constitute a
consent to any subsequent sublease by Tenant or to any subsequent or
successive sublease by a subtenant. However, Landlord may consent to
subsequent subleases or any amendments or modifications thereto without
notifying Tenant or anyone else liable on the Lease and without obtaining
their consent, and such action shall not relieve such persons from
liability under this Lease.
(v) In the event of any default under this Lease, Landlord may
proceed directly against Tenant, any guarantors or anyone else responsible
for the performance of this Lease without first exhausting Landlord's
remedies against any other person or entity responsible therefor to
Landlord, or any security held by Landlord.
(vi) Landlord's written consent to any sublease by Tenant shall not
constitute an acknowledgment that no default then exists under this Lease
nor shall such consent be deemed a waiver of any then existing default.
(vii) Landlord shall not be liable under this Lease or under any
sublease to any subtenant.
(viii) No sublease may be modified or amended without Landlord's
prior written consent."
(b) Transfer Premium from Subletting. Section 6.1.16 of the Lease is
hereby amended by inserting the following Section 6.1.16(g):
"(g) Landlord shall be entitled to receive from Tenant (as and when
received by Tenant), as an item of Additional Rent, fifty percent
(50%) of the net rent received by Tenant from any subtenant after
the reduction of any costs incurred by Tenant in subleasing the
space (the "Transfer Premium"). The "reduction of any costs incurred
by Tenant in subleasing the space" shall include (i) all reasonable
costs incurred by Tenant in connection with such sublease,
including, without limitation, reasonable legal fees, brokerage
commissions and construction costs, and (ii) the costs of any
services which Tenant shall supply to such subtenant, such as
electricity, which are not being supplied by
Landlord to Tenant under this Lease. "Transfer Premium" shall mean
all Annual Fixed Rent, Additional Rent or other consideration of any
type whatsoever payable by the subtenant in excess of the Annual
Fixed Rent and Additional Rent payable by Tenant under this Lease.
If less than all of the Premises is transferred, the Annual Fixed
Rent and the Additional Rent shall be determined on a per rentable
square foot basis. "Transfer Premium" shall also include, but not be
limited to, key money and bonus money paid by the subtenant to
Tenant in connection with such sublease, and any payment in excess
of fair market value for services rendered by Tenant to the
subtenant or for assets, fixtures, inventory, equipment, or
furniture transferred by Tenant to the subtenant in connection with
such sublease."
10. Security Deposit. The Lease is hereby amended by deleting the number
"$150,000.00" in the second line of Section 10.12 of the Lease and
inserting the number "$587,160.00" in place thereof. The Tenant has
previously delivered $150,000.00 of the Security Deposit to Landlord. The
remaining $437,160.00 of the Security Deposit (the "Additional Security")
shall be payable to Landlord upon execution of this First Amendment and
Tenant shall have the option of delivering the Additional Security in the
form of cash or letter of credit pursuant to the terms set forth herein.
If Tenant delivers the Additional Security to Landlord in cash, Landlord
shall deposit the same in a separate interest bearing account on behalf of
Tenant. Provided that Tenant has performed all of its obligations under
the Lease, Landlord shall, within 30 days after the expiration of the
Term, return to Tenant the portion of the Additional Security, plus any
accrued interest, which was not applied to satisfy Tenant's obligations.
If Tenant delivers the Additional Security to Landlord in the form of a
letter of credit, Tenant shall deliver to Landlord, in form and substance
reasonably satisfactory to Landlord, an unconditional letter of credit
issued or confirmed by a Massachusetts lending institution satisfactory to
Landlord (the "Bank") in favor of Landlord in the amount of the Additional
Security. Tenant agrees to cause the Bank to renew said unconditional
letter of credit in the same form from time to time during the Term of
this Lease, at least ninety (90) days prior to the expiration of said
letter of credit or any renewal thereof (such letter of credit, as so
renewed, the "Letter of Credit") so that a Letter of Credit shall be in
force and effect throughout the Term of this Lease. The Letter of Credit
shall provide that it is automatically transferable without the Bank's
consent, at no charge to Landlord. In the event Tenant defaults in respect
of any of the terms, conditions or provisions of this Lease or if Tenant
has not presented Landlord with a renewed Letter of Credit at least ninety
(90) days prior to the
expiration of the Letter of Credit or any renewal thereof, (a) upon five
(5) days notice to Tenant, Landlord shall have the right to require the
Bank to make payment to Landlord of the entire proceeds of the Letter of
Credit, (b) Landlord may apply all or part of the proceeds of the Letter
of Credit to the extent required for the payment of any Fixed Rent,
Additional Rent or other sums as to which Tenant is in default or for any
sum which Landlord may expend or may be required to expend by reason of
Tenant's default in respect of any of the terms, covenants and conditions
of this Lease, including, but not limited to, any damages or deficiency in
the reletting of the Premises, whether such damages or deficiency accrue
before or after summary proceedings or other re-entry by Landlord, without
thereby waiving any other rights or remedies of Landlord with respect to
such default, and (c) Landlord shall hold the remainder of the proceeds of
the Letter of Credit, if any, in a separate interest bearing account on
behalf of Tenant as security for the faithful performance and observance
by Tenant of the terms, covenants and conditions of this Lease on Tenant's
part to be observed and performed with the same rights as hereinabove set
forth to apply the same in the event of any further default by Tenant
under this Lease. If Landlord applies any part of the proceeds of the
Letter of Credit, Tenant shall upon demand immediately deposit with
Landlord a sum equal to the amount so applied as security as aforesaid,
failing which Landlord shall have the same rights and remedies as for the
non-payment of Fixed Rent, and Additional Rent beyond the applicable grace
period. If Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Lease, the original Letter of
Credit shall be promptly returned to Tenant after the expiration of this
Lease.
11. Early Occupancy. The Tenant shall have the right to occupy the Additional
Premises upon execution of this First Amendment (the "Early Occupancy").
The Early Occupancy shall be subject to all the terms, covenants and
conditions set forth in the Lease, specifically excepting Tenant's
obligation to pay Rent and Additional Rent.
12. Non Disturbance Agreement. Within thirty (30) days of the execution of
this First Amendment, Landlord shall deliver to Tenant a letter agreement
(the "Letter Agreement") from Anglo Irish Bank Corporation PLC (the
"Lender"), which shall state that the subordination, nondisturbance and
attornment agreement executed by Tenant and Lender as of November 1, 1999
shall be applicable and in full force and effect with respect to the
Additional Premises. The Letter Agreement shall be countersigned by Tenant
and returned to Landlord within five (5) days of Tenant's receipt of the
same.
13. The Tenant shall have exclusive use of the computer room, the liebart
units and the generators within the Building, and shall be solely
responsible for maintenance of the same. All equipment contained within
the computer room and the liebart units shall remain the property of the
Landlord and shall be surrendered to Landlord upon expiration or earlier
termination of this Lease.
All terms which are defined in the Lease shall have the same meanings when
used in this First Amendment.
The Lease is hereby ratified and confirmed and, as modified by this First
Amendment, shall remain in full force and effect.
This First Amendment shall have the effect of an agreement under seal and
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
EXECUTED under seal as of the date first set forth above.
LANDLORD:
BERTECH 1881 LLC
By: Berkeley Investments, Inc.
Its managing member
By: /s/ [Illegible]
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Name:
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Title:
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TENANT:
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: VP
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