DS2.369722.6
Execution Copy
LEASE AGREEMENT BETWEEN
W9/TIB REAL ESTATE LIMITED PARTNERSHIP, AS LANDLORD, AND
KRONOS INCORPORATED, AS TENANT
DATED February 26, 1999
v
TABLE OF CONTENTS
1. Lease Grant.........................................................1
2. Term................................................................1
3. Rent................................................................1
(a) Basic Rent.................................................1
(b) Payment....................................................2
(c) Operating Costs............................................2
4. Delinquent Payment; Handling Charges................................5
5. Security Deposit....................................................5
6. Landlord's Obligations..............................................6
(a) Services...................................................6
(b) Landlord's Maintenance Obligations.........................8
(c) Excess Utility Use.........................................8
(d) Restoration of Services; Abatement.........................9
(e) Taxes......................................................9
(f) Landlord's Insurance.......................................9
7. Improvements; Alterations; Repairs; Maintenance.....................9
(a) Improvements; Alterations..................................9
(b) Repairs; Maintenance......................................10
(c) Performance of Work.......................................11
(d) Mechanic's Liens..........................................11
(e) Utilities.................................................11
(f) Floor Load; Heavy Machinery...............................11
8. Use................................................................12
9. Assignment and Subletting..........................................12
(a) Transfers; Consent........................................12
(b) Cancellation..............................................13
(c) Additional Compensation...................................13
10. Insurance; Waivers; Subrogation; Indemnity.........................14
(a) Insurance.................................................14
(b) Waiver of Negligence; No Subrogation......................14
(c) Indemnity.................................................14
11. Subordination; Attornment; Notice to Landlord's Mortgagee..........15
(a) Subordination.............................................15
(b) Attornment................................................15
(c) Notice to Landlord's Mortgagee............................15
(d) Landlord's Mortgagee's Protection Provisions..............15
12. Rules and Regulations..............................................16
13. Condemnation.......................................................16
(a) Total Taking..............................................16
(b) Partial Taking -Tenant's Rights...........................16
(c) Partial Taking -Landlord's Rights.........................16
(d) Award.....................................................17
14. Fire or Other Casualty.............................................17
(a) Repair Estimate...........................................17
(b) Landlord's and Tenant's Rights............................17
(c) Landlord's Rights.........................................17
(d) Repair Obligation.........................................18
15. Personal Property Taxes............................................18
16. Events of Default..................................................18
17. Remedies...........................................................19
18. Payment by Tenant; Non-Waiver......................................20
(a) Payment by Tenant.........................................20
(b) No Waiver.................................................20
19. Landlord's Lien....................................................20
20. Surrender of Premises..............................................21
21. Holding Over.......................................................21
22. Certain Rights Reserved by Landlord................................21
23. [Intentionally Omitted]............................................22
24. Miscellaneous......................................................22
(a) Landlord Transfer.........................................22
(b) Landlord's Liability......................................22
(c) Force Majeure.............................................22
(d) Brokerage.................................................22
(e) Estoppel Certificates.....................................23
(f) Notices...................................................23
(g) Separability..............................................23
(h) Amendments; and Binding Effect............................23
(i) Quiet Enjoyment...........................................23
(j) No Merger.................................................23
(k) No Offer..................................................24
(l) Entire Agreement..........................................24
(m) Waiver of Jury Trial......................................24
(n) Governing Law.............................................24
(o) Joint and Several Liability...............................24
(p) Financial Reports.........................................24
(q) Landlord's Fees...........................................24
(r) Telecommunications........................................25
(s) General Definitions.......................................25
(t) Confidentiality...........................................25
(u) Hazardous Materials.......................................25
(v) List of Exhibits..........................................26
(w) Time of Essence...........................................26
(x) Notice of Lease...........................................26
(y) First Amendment to Lease..................................26
(z) Corporate Approval........................................27
(aa) Building Signage..........................................27
(bb) Rooftop Equipment.........................................27
(cc) Access....................................................28
(dd) Arbitration...............................................28
(ee) Campus Setting............................................29
(ff) Termination Agreement with Sun Microsystems...............30
(gg) Termination of 6 Omni Way Lease...........................30
25. Other Provisions...................................................31
LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as of February 26,
1999, between W9/TIB REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord"), and KRONOS INCORPORATED, a Massachusetts corporation
("Tenant").
1. Lease Grant. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, real property located at 2 Omni Way,
Chelmsford, Massachusetts together with all improvements located thereon
including the office building located thereon containing approximately 82,228
rentable square feet (the "Premises"), as shown on the site plan attached hereto
as Exhibit A. The office building located on the Premises shall hereinafter be
referred to as the "Building"). The legal description of the Premises is
attached hereto as Exhibit B.
2. Term. The term of this Lease shall commence on the earlier of (i)
the date which is one hundred twenty (120) days after the date upon which
Landlord provides to Tenant written notice of availability of the Premises or
(ii) the date upon which Tenant occupies the Premises for the Permitted Use, but
in no event shall such date be later than July 1, 1999 (the "Commencement
Date"), and expiring on the last day of the month in which the thirteenth (13th)
anniversary of the Commencement Date occurs (the "Term", which definition shall
include all renewals of the initial Term). If the Premises are not delivered to
Tenant on the Commencement Date, then (a) Tenant's obligation to pay Basic Rent
and Additional Rent (as defined in Section 3) shall be waived until Landlord
tenders possession of the Premises to Tenant, (b) Landlord shall not be in
default hereunder or be liable for damages therefor, and (c) Tenant shall accept
possession of the Premises when Landlord tenders possession thereof to Tenant.
Use and occupancy of the Premises by Tenant prior to the Commencement Date shall
be subject to all of the provisions of this Lease excepting only those requiring
the payment of Basic Rent.
3. Rent.
(a)......Basic Rent. "Basic Rent" (herein so called) shall be the following
amounts for the following periods of time:
------------------------------------- -------------------------------------
Time Period Annual Basic Rent Monthly Basic Rent
Lease Years 1-2 $657,824.00 $54,818.67
Lease Years 3-5 $945,622.00 $78,801.83
Lease Years 6-8 $986,736.00 $82,228.00
Lease Years 9-13 $1,068,964.00 $89,080.33
33
The term "Lease Year" shall mean any period of twelve (12) months
commencing on the first day of the first full month of the Term or any
anniversary of such date or, if fewer than twelve (12) months remain in the Term
after any such anniversary period, commencing on such anniversary date through
the last day of the Term.
(b)......Payment. Tenant shall timely pay to Landlord Basic
Rent and all additional sums to be paid by Tenant to Landlord under this Lease
(collectively, the "Rent"), without notice, deduction or set off, except as
otherwise provided herein, at Landlord's address provided for in this Lease or
as otherwise specified by Landlord. Basic Rent, adjusted as herein provided,
shall be payable monthly in advance, and shall be accompanied by all applicable
state and local sales or use taxes. Basic Rent shall be payable on the first day
of each month beginning on the first day of the first full calendar month of the
Term. The monthly Basic Rent for any partial month at the beginning of the Term
shall equal the product of 1/365 of the annual Basic Rent in effect during the
partial month and the number of days in the partial month from and after the
Commencement Date, and shall be due on the Commencement Date.
(c)......Operating Costs.
(1)......Tenant shall pay, as "Additional Rent", the
Operating Costs (defined below). Landlord may make a good faith
estimate of the Additional Rent to be due by Tenant for any calendar
year or part thereof during the Term, and Tenant shall pay to Landlord,
on the Commencement Date and on the first day of each calendar month
thereafter, an amount equal to the estimated Additional Rent for such
calendar year or part thereof divided by the number of months therein.
From time to time, but not more often than twice in any twelve (12)
month period, Landlord may estimate and re-estimate the Additional Rent
to be due by Tenant and deliver a detailed line item copy of the
estimate or re-estimate to Tenant. Thereafter, the monthly installments
of Additional Rent payable by Tenant shall be appropriately adjusted in
accordance with the estimations so that, by the end of the calendar
year in question, Tenant shall have paid all of the Additional Rent as
estimated by Landlord. Any amounts paid based on such an estimate shall
be subject to adjustment as herein provided when actual Operating Costs
are available for each calendar year.
(2)......The term "Operating Costs" shall mean all
expenses and disbursements (subject to the limitations set forth below)
that Landlord incurs in connection with the ownership, operation, and
maintenance of the Premises, determined in accordance with generally
accepted accounting principles ("GAAP") consistently applied,
including, but not limited to, the following costs: (A) wages and
salaries (including management fees) of all employees engaged in the
operation, maintenance, and security of the Premises, including taxes,
insurance and benefits relating thereto; (B) all supplies and materials
used in the operation, maintenance, repair, replacement, and security
of the Premises; (C) costs for improvements made to the Premises which,
if capital in nature, shall be amortized over the useful economic life
of such improvements as determined by Landlord in its reasonable
discretion; (D) cost of all utilities, except the cost of utilities
paid directly by Tenant or reimbursable to Landlord by Tenant other
than pursuant to a provision similar to this Section 3.(c); (E)
insurance expenses; (F) repairs, replacements, and general maintenance
of the Premises; and (G) service or maintenance contracts with
independent contractors for the operation, maintenance, repair,
replacement, or security of the Premises (including, without
limitation, alarm service, window cleaning, and elevator maintenance).
Operating Costs shall not include costs for (i) repair,
replacements and general maintenance paid by proceeds of insurance or
by Tenant or other third parties; (ii) interest, amortization or other
payments on loans to Landlord; (iii) depreciation; (iv) leasing
commissions; (v) legal expenses for services, other than those that
benefit Tenant (e.g., tax disputes); (vi) Taxes (defined below); (vii)
federal income taxes imposed on or measured by the income of Landlord
from the operation of the Premises; (viii) any cost or expense to the
extent to which Landlord is paid or reimbursed (other than as a payment
for Operating Costs), including but not necessarily limited to, (1)
work or service performed for any tenant (including Tenant) at such
tenant's costs, (2) the cost of any item for which Landlord is paid or
reimbursed by insurance warranties, service contracts, condemnation
proceeds or otherwise, (3) charges (including applicable taxes) for
electricity, water and other utilities for which Landlord is entitled
to reimbursement pursuant to other provisions of this Lease, and (4)
the cost of any HVAC, janitorial or other services provided to tenants
on an extra-cost basis after regular business hours as defined in the
Lease; (ix) the cost of correcting initial defects in the design,
construction or equipment of the Building; (x) salaries and bonuses of
officers and executives of Landlord; (xi) any cost included in
Operating Costs representing an amount paid to a person, firm,
corporation or other entity related to Landlord which is in excess of
the amount which would have been paid on an arms length basis in the
absence of such relationship; (xii) any capital cost necessary to cure
any violation of any law, ordinance or regulation applicable to the
Building existing as of the Commencement Date or to remediate any
environmental condition (existing as of the date of the Lease) provided
Tenant in no way exacerbates any such condition; (xiii) the cost of
acquiring sculptures, paintings and other objects of art in excess of
$2,000 per item; and (xiv) the cost of advertising or promotion for the
Building.
(3)......Tenant shall also pay the Taxes for each
year and partial year falling within the Term, in the same manner as
provided above for Additional Rent with regard to Operating Costs.
"Taxes" shall mean taxes, assessments, and governmental charges whether
federal, state, county or municipal, and whether they be by taxing
districts or authorities presently taxing or by others, subsequently
created or otherwise, and any other taxes and assessments attributable
to the Building (or its operation), excluding, however, penalties and
interest thereon and federal and state taxes on income (if the present
method of taxation changes so that in lieu of the whole or any part of
any Taxes, there is levied on Landlord a capital tax directly on the
rents received therefrom or a franchise tax, assessment, or charge
based, in whole or in part, upon such rents for the Building, then all
such taxes, assessments, or charges, or the part thereof so based,
shall be deemed to be included within the term "Taxes" for purposes
hereof). Tenant shall, at its sole cost and expense and upon prior
written notice to Landlord, have the right to seek an abatement of the
Taxes provided that Tenant shall promptly provide Landlord with copies
of all papers filed with various authorities in connection with seeking
such an abatement and with copies of all papers received from other
parties relating to any such abatement. Taxes shall include the costs
of consultants retained in an effort to lower taxes and all costs
incurred in disputing any taxes or in seeking to lower the tax
valuation of the Building. The following items shall be excluded from
Taxes: (A) inheritance taxes; (B) gift taxes; (C) transfer taxes; (D)
franchise taxes; (E) excise taxes; (F) income taxes; (G) profit taxes;
and (H) late payment charges and penalties provided Tenant is not in
default of any of its payment obligations under this Lease. Subject to
the provisions of the next succeeding sentence, any real estate related
betterment assessments shall be payable over the longest period of time
permitted by law. If Landlord elects to pay any such assessments over a
shorter period of time, Tenant shall only be required to pay during any
given period of time that portion of any given assessment that would
have been required to be paid during such period of time if such
assessment had been paid over the longest period of time permitted by
law.
(4)......By April 1 of each calendar year, or as soon
thereafter as practicable, Landlord shall furnish to Tenant a statement
of Operating Costs for the previous year, adjusted as provided in
Section 3.(c)(6), and of the Taxes for the previous year (the
"Operating Costs and Tax Statement"). If the Operating Costs and Tax
Statement reveals that Tenant paid more for Operating Costs than the
actual amount for the year for which such statement was prepared, or
more than its actual share of Taxes for such year, then Landlord shall
promptly credit or reimburse Tenant for such excess; likewise, if
Tenant paid less than the actual Additional Rent or Taxes due, then
Tenant shall promptly pay Landlord such deficiency within thirty (30)
days after receiving written notice from Landlord of the amount of such
deficiency. Any such Operating Costs and Tax Statement furnished by
Landlord shall be binding and conclusive upon Tenant unless Tenant
shall notify Landlord that Tenant disputes the correctness of such
Operating Costs and Tax Statement within one hundred eighty (180) days
after the submission thereof by Landlord. If Tenant disputes such
Operating Cost and Tax Statement as aforesaid, and Tenant is not in
default of its monetary obligations under this Lease, Tenant shall have
the right to audit Landlord's books used to determine said Operating
Cost and Tax Statement within one hundred eighty (180) days after
submission thereof by Landlord, which right Tenant agrees not to
exercise more than once annually. Access to said Operating Cost and Tax
Statement books shall be provided within thirty (30) days of Tenant's
request. Any information obtained by Tenant pursuant to the provisions
of this Section 3(d)(4) shall be treated as confidential. If any such
audit discloses Tenant paid in excess of Tenant's proportionate share
of Operating Costs or Tax Escalation, Landlord shall promptly reimburse
such excess to Tenant within thirty (30) days after Tenant's demand
therefor. Landlord shall maintain its books used to determine the
Operating Cost and Tax Statement in a manner consistent with reputable
professional standards used to maintain the books of comparable
properties.
4. Delinquent Payment; Handling Charges. All payments past due by five
(5) days beyond the due date required of Tenant hereunder shall bear interest
from the fifth (5th) day beyond the date due until paid at the lesser of 18% per
annum (the "Interest Rate") or the maximum lawful rate of interest. In no event,
however, shall the charges permitted under this Section 4 or elsewhere in this
Lease, to the extent they are considered to be interest under law, exceed the
maximum lawful rate of interest.
5. Security Deposit. Contemporaneously with the execution of this
Lease, Tenant shall pay to Landlord $160,000.00 (the "Security Deposit"), which
shall be held by Landlord to secure Tenant's performance of its obligations
under this Lease. The Security Deposit is not an advance payment of Rent or a
measure or limit of Landlord's damages upon an Event of Default (defined in
Section 16). Landlord may, from time to time and without prejudice to any other
remedy, use all or a part of the Security Deposit to perform any obligation
Tenant fails to perform hereunder. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. Provided that
Tenant has performed all of its obligations hereunder, Landlord shall, within
thirty (30) days after the Term ends, return to Tenant the portion of the
Security Deposit which was not applied to satisfy Tenant's obligations. The
Security deposit may be commingled with other funds, and no interest shall be
paid thereon. If Landlord transfers its interest in the Premises and the
transferee assumes Landlord's obligations under this Lease, then Landlord may
assign the Security Deposit to the transferee and Landlord thereafter shall have
no further liability for the return of the Security Deposit.
In lieu of a cash Security Deposit, simultaneously with the execution
and delivery of this Lease, Tenant may deliver to Landlord an irrevocable and
unconditional standby letter of credit made payable to Landlord, its successors
and assigns, in the sum of $160,000.00 (the "Letter of Credit"), substantially
in the form of the sample letter of credit attached hereto as Exhibit F or in
such other form as is reasonably acceptable to Landlord, which shall secure the
performance by Tenant of all obligations on the part of Tenant hereunder. The
issuer of the Letter of Credit shall be a banking institution with at least a
rating of A and otherwise reasonably acceptable to Landlord. Although Landlord
shall only have the right to draw under the Letter of Credit as set forth
herein, under the terms of the Letter of Credit, the sole condition to
Landlord's draw upon the Letter of Credit shall be presentment to the issuer
thereof, prior to or on the expiration date, of a demand for payment. The Letter
of Credit shall be self-renewing from year to year during the Term of this Lease
so as to expire no earlier than thirty (30) days following the Lease expiration
date and shall contain such other customary terms as Landlord requires in its
reasonable discretion. It is agreed: (i) that the Letter of Credit may be drawn
upon to cure any Event of Default that may exist, without prejudice to any other
remedy or remedies which Landlord may have on account thereof, and upon
Landlord's demand, Tenant shall reimburse the issuer for the amount so drawn so
that the Letter of Credit will be restored to its original amount; (ii) subject
to the provisions of clause (iv) below, that the Letter of Credit may be drawn
upon if the Letter of Credit has not been extended or renewed without amendment
at least forty-five (45) days prior to any then-current expiration date thereof;
(iii) that if the rating of the issuer of the Letter of Credit at any time drops
below A, then, within sixty (60) days of Landlord's demand, Tenant shall replace
the Letter of Credit with another Letter of Credit in a form reasonably
acceptable to Landlord and with an issuer with a rating of at least an A and
otherwise reasonably acceptable to Landlord; Landlord may draw on the existing
Letter of Credit if, after Landlord requests that Tenant replace the Letter of
Credit as aforesaid, Landlord is not provided with a substitute Letter of Credit
in a form, and from an issuer, satisfactory to Landlord as provided above at
least fifteen (15) days prior to the then-current expiration date of the Letter
of Credit; (iv) if at any time, but in any event, at least sixty (60) days prior
to the expiration of the Letter of Credit, Tenant may seek Landlord's consent to
switch issuers of the Letter of Credit provided the prospective issuer has a
rating of at least an A and is otherwise reasonably acceptable to Landlord and
the new form of Letter of Credit satisfies the requirements of Landlord
hereunder and is otherwise reasonably acceptable to Landlord; Landlord may draw
on the existing Letter of Credit if, after Tenant requests Landlord's consent to
switch issuers as aforesaid, Landlord is not provided with a substitute Letter
of Credit in a form, and from an issuer, satisfactory to Landlord in its sole
and absolute discretion at least forty-five (45) days prior to the then-current
expiration date of the Letter of Credit; (v) that should the Premises be
conveyed by Landlord, the Letter of Credit or any portion thereof shall be
assigned to Landlord's grantee, and if the same be assigned as aforesaid, Tenant
hereby releases Landlord from any and all liability with respect to the Letter
of Credit and its application or return, and Tenant agrees to look to such
grantee for such application or return, provided such grantee assumes Landlord's
obligations under this Lease (including this Section 5); and (vi) that the
Letter of Credit shall be returned to Tenant upon the later of (a) thirty (30)
days after the expiration of the Term or any renewal or extension thereof, or
(b) the date Tenant has vacated the Premises and surrendered possession thereof
to Landlord at the expiration of the Term or any extension thereof as provided
herein and has paid Landlord all sums due and owing under this Lease.
If Tenant initially provides Landlord with a cash Security Deposit,
Tenant may replace such cash Security Deposit with a Letter of Credit in
accordance with the provisions of the preceding paragraph. Upon Landlord's
receipt of a Letter of Credit satisfying the terms and conditions of the
preceding paragraph, Landlord shall promptly return the cash Security Deposit to
Tenant.
For the purposes of this Section 5, a rating of at least A (or its
equivalent) shall mean that such issuer has a rating of at least A (or its
equivalent) from two (2) of the following four (4) rating agencies: Fitch
Investors Service, Moody's Investor Service, Standard & Poor's Corporation and
Duff & Phelps.
6. Landlord's Obligations.
(a)......Services. Landlord shall furnish to Tenant the
following services (the cost of which services shall be considered Operating
Costs): (1) hot and cold water at bathroom sinks provided for general use of
tenants of the Building; (2) heated and refrigerated air conditioning as
appropriate, at such temperatures and in such amounts as are standard for
comparable buildings in the vicinity of the Building; (3) janitorial service
(which janitorial service shall include service to the interior and exterior of
the Building and the Premises and shall include the services customarily
provided to comparable properties by reputable professional management
companies, including, without limitation, maintenance, repairs and replacement
of (u) the parking area associated with the Building and located on the
Premises, (v) all grass, shrubbery and other landscape treatments on the
Premises, (w) the exterior of the Building (including painting), (x) sprinkler
systems and sewage lines, and (y) any other maintenance, repair or replacement
items normally associated with the foregoing) to the Premises on weekdays, other
than the holidays enumerated on Exhibit I attached hereto (collectively,
"Building Holidays"), for Building-standard installations and such window
washing as may from time to time be reasonably required but not less than twice
a year; (4) elevators for ingress and egress to the floors of the Building,
provided that Landlord may reasonably limit the number of operating elevators
during non-business hours and holidays; and (5) electrical current during normal
business hours for equipment that does not require more than 110 volts and whose
electrical energy consumption does not exceed normal office usage. While Tenant
is the sole occupant of the Building, Tenant may, with Landlord's prior written
consent (which consent shall not be unreasonably withheld or delayed),
substitute at Tenant's expense any of the providers of the services described in
this Section 6.(a) with reputable, licensed third party service providers
located in the area in which the Building is located; provided, however, Tenant
shall provide Landlord with copies of all contracts with any such service
provider and said contracts shall be in form and substance reasonably
satisfactory to Landlord. If, in accordance with the provisions of the preceding
sentence, Tenant engages (at its own cost) providers for all of the services to
be provided by Landlord under this Section 6.(a), the management fee included in
Operating Costs shall be reduced to the greater of (i) $1,300.00 per month or
(ii) one and one-quarter percent (1 1/4%) of the gross revenues derived by
Landlord from the Premises. If Tenant engages providers of the services set
forth in this Section 6.(a) as aforesaid and any such services are provided, in
Landlord's reasonable discretion, at an unsatisfactory level as would
customarily be provided to comparable buildings, Landlord may, upon prior
written notice to Tenant, elect to provide such services and the management fee
shall no longer be reduced. If Landlord is providing the services set forth in
this Section 6.(a) and Tenant desires any of the services specified in Section
6.(a)(2): (A) at any time other than between 8:00 a.m. and 6:00 p.m. on weekdays
(excluding Building Holidays), or (B) on Saturday, Sunday or Building Holidays,
then such services shall be supplied to Tenant upon the written request of
Tenant delivered to Landlord before 3:00 p.m. on the business day preceding such
extra usage, and Tenant shall pay to Landlord the cost of such services within
ten (10) days after Landlord has delivered to Tenant an invoice therefor. The
costs incurred by Landlord in providing after-hour HVAC service to Tenant shall
include costs for electricity, water, sewage, water treatment, labor, metering,
filtering, and maintenance reasonably allocated by Landlord to providing such
service.
Landlord and Tenant hereby acknowledge and agree that, as of the
Commencement Date, Tenant shall engage providers of the services set forth in
this Section 6.(a). However, upon sixty (60) days prior written notice to
Landlord, Tenant may elect to have Landlord provide such services.
If, during the last two (2) years of the Term (inclusive of the
five-year extension if Tenant elects to exercise the same in accordance with the
provisions of Exhibit G) and during a time when Tenant is engaging providers of
the services set forth in this Section 6.(a), Tenant elects to make a capital
improvement to the Base Building (as hereinafter defined) because that portion
of the Base Building fails to operate (as opposed to operates less efficiently),
Landlord agrees to pay the unamortized cost of any such capital improvement on
the following terms and conditions provided such failure is not a result of any
act, omission, fault, negligence or neglect of Tenant, its agents, employees,
invitees or contractors: (i) Landlord and Tenant agree in writing on the cost of
any such capital improvement and the useful life over which any such capital
improvement shall be amortized prior to the installation of any such capital
improvement (ii) to the extent capital improvements are devoted to Building
systems, the Building systems shall not be in excess of standard building design
for comparable buildings in the 495 North market; and (iii) Landlord agrees to
pay the unamortized cost of any such capital improvement as previously agreed to
in writing by the parties within sixty (60) days after the later of the
expiration of this Lease or the date Tenant surrenders the Premises in
accordance with this Lease provided Tenant is not in default hereunder, this
Lease does not terminate prior to the stated expiration date and Tenant has
maintained and repaired any such capital improvement in accordance with the
provisions of this Lease.
For the purposes of this Lease, the "Base Building" shall mean the
roof, foundation, structural columns and Building systems to the extent any of
the foregoing have not been altered or improved by Tenant in any manner.
(b)......Landlord's Maintenance Obligations. This Lease is
intended to be a net lease; accordingly, Landlord's maintenance obligations are
limited to the repair, maintenance and replacement of the Building's roof and
the repair, maintenance and replacement of the foundation and structural members
of exterior walls (the "Building's Structure"); Landlord shall not be
responsible for (1) any such work until Tenant notifies Landlord of the need
therefor in writing, (2) for alterations to the Building's Structure required by
applicable law because of Tenant's use of the Premises (which alterations shall
be Tenant's responsibility), (3) any such work caused by Tenant's negligence or
its failure to comply with the provisions of this Lease, or (4) any costs
incurred by Landlord in connection with the repair and maintenance of the roof,
which repair and maintenance costs shall be considered an Operating Cost and
paid by Tenant in accordance with Section 3 above. The Building's Structure does
not include skylights, windows, glass or plate glass, doors, special fronts, or
office entries, all which shall be maintained by Tenant. Landlord's liability
for any defects, repairs, replacements or maintenance for which Landlord
specifically is responsible for under this Lease shall be limited to the cost of
performing the work.
(c)......Excess Utility Use. Landlord shall not be required to
furnish electrical current for equipment that requires more than the electrical
capacity currently provided in the Building (the "Base Building Electrical
Capacity"). If Tenant's requirements for or consumption of electricity exceed
the Base Building Electrical Capacity, Landlord shall, at Tenant's expense, make
reasonable efforts to supply such service through the then-existing feeders and
risers serving the Building, and Tenant shall pay to Landlord the cost of such
service within ten (10) days after Landlord has delivered to Tenant an invoice
therefor. Landlord may determine the amount of such additional consumption and
potential consumption by any verifiable method, including installation of a
separate meter in the Premises installed, maintained, and read by Landlord, at
Tenant's expense. Tenant shall not install any electrical equipment requiring
special wiring or requiring voltage in excess of the Base Building Electrical
Capacity unless approved in advance by Landlord. The use of electricity in the
Premises shall not exceed the capacity of existing feeders and risers to or
wiring in the Building. Any risers or wiring required to meet Tenant's excess
electrical requirements shall, upon Tenant's written request, be installed by
Landlord, at Tenant's cost, if, in Landlord's judgment, the same are necessary
and shall not cause permanent damage to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, repairs, or expenses, or interfere with or disturb other tenants of
the Building. If Tenant uses machines or equipment in the Building which affect
the temperature otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air conditioning units
or other supplemental equipment in the Building, and the cost thereof, including
the cost of installation, operation, use, and maintenance, shall be paid by
Tenant to Landlord within ten (10) days after Landlord has delivered to Tenant
an invoice therefor.
(d)......Restoration of Services; Abatement. Landlord shall
use reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render Landlord liable for
any damages caused thereby, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of Tenant's obligations hereunder. If, however,
Tenant is prevented from using the Premises for ten (10) consecutive business
days because of the unavailability of any such service, then Tenant shall, as
its exclusive remedy be entitled to a reasonable abatement of Rent for each
consecutive day (after such ten (10) day period) that Tenant is so prevented
from using the Premises.
(e)......Taxes. Provided Tenant is not in default of any of
its monetary obligations under this Lease, Landlord shall pay promptly when due
to the taxing authority having jurisdiction all taxes, rates, duties, levies and
assessments whatsoever, whether municipal, state, Federal or otherwise, levied,
imposed or assessed against the Building or upon Landlord in respect thereof or
from time to time levied, imposed or assessed in the future in lieu thereof,
including those levied, imposed or assessed for education, schools and local
improvements.
(f)......Landlord's Insurance. Landlord shall carry
throughout the Term of this Lease fire and extended coverage
---------------------
insurance on the Building for the full replacement value.
7. Improvements; Alterations; Repairs; Maintenance.
(a)......Improvements; Alterations. Improvements to the
Premises shall be installed at Tenant's expense only in accordance with plans
and specifications which have been previously submitted to and approved in
writing by Landlord. No alterations or physical additions in or to the Premises
may be made without Landlord's prior written consent, which shall not be
unreasonably withheld or delayed; however, Landlord may withhold its consent to
any alteration or addition that would affect the Building's structure or its
HVAC, plumbing, electrical, or mechanical systems. Notwithstanding the
foregoing, Tenant may from time to time make alterations, additions or
improvements to the Premises, without the consent of Landlord and without
Landlord's approval of plans, provided: (i) the cost thereof shall not exceed
Fifty Thousand Dollars ($50,000.00) in the aggregate in any consecutive
twelve-month period; (ii) Tenant shall, prior to commencing any such
alterations, additions and/or improvements in the Premises in connection
therewith, furnish Landlord with a complete set of plans and specifications for
any such alterations, additions and/or improvements; (iii) such alterations,
additions and/or improvements shall not involve or affect the exterior or the
structure of the Building or any of the mechanical, electrical or plumbing
systems of the Building; and (iv) Tenant shall comply with all requirements of
this Lease with respect to such alterations, additions and/or improvements other
than obtaining the prior approval of Landlord. Tenant shall not paint or install
lighting or decorations, signs, window or door lettering, or advertising media
of any type on or about the Premises which might affect the appearance of the
exterior of the Building or any other portion of the Premises other than the
interior of the Building without the prior written consent of Landlord, which
shall not be unreasonably withheld or delayed; however, Landlord may withhold
its consent to any such painting or installation which would affect the
appearance of the exterior of the Building or of any common areas of the
Building. All alterations, additions, or improvements made in or upon the
Premises shall be removed by Tenant prior to the end of the Term (and Tenant
shall repair all damage caused thereby) if Landlord conditioned its consent to
the initial installation of any such alterations, additions or improvements upon
such removal; otherwise, in the absence of such a removal condition with respect
to each and every alteration, addition or improvement, all such alterations,
additions or improvements (excluding moveable partitions) shall remain on the
Premises at the end of the Term without compensation to Tenant. All alterations,
additions, and improvements shall be constructed, maintained, and used by
Tenant, at its risk and expense, in accordance with all Laws; Landlord's
approval of the plans and specifications therefor shall not be a representation
by Landlord that such alterations, additions, or improvements comply with any
Law.
(b)......Repairs; Maintenance. Tenant shall maintain the
Premises in a clean safe, and operable condition consistent with the operation
of a first class office building, and shall not permit or allow to remain any
waste or damage to any portion of the Premises. If Tenant elects to engage
providers for all services in accordance with Section 6.(a) above, Tenant shall
enter into preventative maintenance/service contract(s) with maintenance
contractor(s) approved by Landlord for servicing the landscaping of the Premises
and all air conditioning, heating and ventilating equipment, elevators and other
equipment located within or serving the Premises. All preventative
maintenance/service contracts shall be in form and substance reasonably
satisfactory to Landlord and shall provide that the maintenance contractor shall
provide Landlord with quarterly reports respecting the maintenance of the
subject equipment. Tenant shall provide Landlord with copies of all such
preventative maintenance/service contracts maintained by Tenant. Irrespective of
whether or not Tenant elects not to engage providers for all services in
accordance with Section 6.(a) above, Tenant shall repair or replace, subject to
Landlord's reasonable direction and supervision, any improvement or system
installed by Tenant within the Premises and any damage to the Building caused by
Tenant, Tenant's transferees, or their respective agents, contractors, or
invitees. If Tenant fails to make such repairs or replacements within thirty
(30) days (or such shorter period of time required to prevent any damage from
occurring to the Premises) after the occurrence of such damage, then Landlord
may make the same at Tenant's cost.
(c)......Performance of Work. All work described in this
Section 7 shall be performed only by Landlord or by contractors and
subcontractors reasonably approved in writing by Landlord and Tenant. Tenant
shall cause all contractors and subcontractors to procure and maintain insurance
coverage naming Landlord as an additional insured against such risks, in such
amounts, and with such companies as Landlord may reasonably require. All such
work shall be performed in accordance with all Laws and in a good and
workmanlike manner so as not to damage the Premises, the Building, or the
components thereof.
Tenant shall provide the names, addresses and copies of contracts for
all contractors, and upon completion of any work shall promptly furnish Landlord
with full and final waivers of lien covering all labors and materials included
in the work in question.
(d)......Mechanic's Liens. Tenant shall not permit any
mechanic's liens to be filed against the Premises or the Building for any work
performed, materials furnished, or obligation incurred by or at the request of
Tenant. If such a lien is filed, then Tenant shall, within ten (10) days after
Landlord has delivered notice of the filing thereof to Tenant, either pay the
amount of the lien or diligently contest such lien and deliver to Landlord a
bond or other security reasonably satisfactory to Landlord. If Tenant fails to
timely take either such action, then Landlord may pay the lien claim, and any
amounts so paid, including expenses and interest, shall be paid by Tenant to
Landlord within ten days after Landlord has invoiced Tenant therefor.
(e)......Utilities. Tenant shall obtain and pay for all water,
gas, electricity, heat, telephone, sewer, sprinkler charges and other utilities
and services used at the Premises, together with all taxes, penalties,
surcharges, and maintenance charges pertaining thereto. Landlord shall not be
liable for any interruption or failure of utility service to the Premises unless
caused by Landlord's gross negligence. To the extent Tenant is not billed
directly for any such utilities, any amounts payable by Tenant under this
Section shall be due within ten (10) days after Landlord has invoiced Tenant
therefor.
(f)......Floor Load; Heavy Machinery. (i) Tenant shall not
place a load upon any floor in the Building exceeding the floor load per square
foot of area which such floor was designed to carry or which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all business
machines and mechanical equipment, including safes, which shall be placed so as
to distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient, in
Landlord's judgment, to absorb and prevent vibration, noise and annoyance.
Tenant shall not move any safe, heavy machinery and/or heavy equipment into or
out of the Building without Landlord's prior consent, which consent may include
a requirement to provide insurance, naming Landlord as an insured, in such
amounts as Landlord may deem reasonable.
(ii).....If such safe, machinery, equipment,
freight, bulky matter or fixtures requires special handling,
Tenant agrees that all work in connection therewith shall comply with applicable
laws and regulations. Any such moving shall be at the sole risk and hazard of
Tenant, and Tenant will exonerate, indemnify and save Landlord harmless against
and from any liability, loss, injury, claim or suit resulting directly or
indirectly from such moving.
8. Use. Tenant shall continuously occupy and use the Premises only for
general office, research and development, manufacturing, training, sales,
service and engineering use (the "Permitted Use"), provided the Permitted Use
complies with all applicable laws, and shall comply with all Laws relating to
the use, condition, access to, and occupancy of the Premises. The Premises shall
not be used for any use which is disreputable, creates extraordinary fire
hazards, or results in an increased rate of insurance on the Premises, the
Building or its contents, or for the storage of any hazardous materials or
substances. If, because of a Tenant Party's acts, the rate of insurance on the
Building or its contents increases, then such acts shall be an Event of Default,
Tenant shall pay to Landlord the amount of such increase on demand, and
acceptance of such payment shall not waive any of Landlord's other rights.
Tenant shall conduct its business and control each other Tenant Party so as not
to create any nuisance or unreasonably interfere with Landlord in its management
of the Building.
9. Assignment and Subletting.
(a)......Transfers; Consent. Tenant shall not, without the
prior written consent of Landlord, (1) assign, transfer, or encumber this Lease
or any estate or interest herein, whether directly or by operation of law, (2)
permit any other entity to become Tenant hereunder by merger, consolidation, or
other reorganization, (3) if Tenant is an entity other than a corporation whose
stock is publicly traded, permit the transfer of an ownership interest in Tenant
so as to result in a change in the current control of Tenant, (4) sublet any
portion of the Premises, (5) grant any license, concession, or other right of
occupancy of any portion of the Premises, or (6) permit the use of the Premises
by any parties other than Tenant (any of the events listed in Section 9.(a)(1)
through 9.(a)(6) being a "Transfer"). If Tenant requests Landlord's consent to a
Transfer, then Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and other credit
information; and general references sufficient to enable Landlord to determine
the proposed transferee's creditworthiness and character. Landlord shall not
unreasonably withhold or delay its consent to any assignment or subletting of
the Premises, provided that the proposed transferee (A) is creditworthy, (B) has
a good reputation in the business community, and (C) is not a person or entity
with whom Landlord is negotiating to lease space in an Affiliated Building;
otherwise, Landlord may withhold its consent in its sole discretion.
Concurrently with Tenant's notice of any request for consent to a Transfer,
Tenant shall pay to Landlord a fee of $500.00 to defray Landlord's expenses in
reviewing such request, and Tenant shall also reimburse Landlord immediately
upon request for its reasonable attorneys' fees incurred in connection with
considering any request for consent to a Transfer. If Landlord consents to a
proposed Transfer, then the proposed transferee shall deliver to Landlord a
written agreement whereby it expressly assumes Tenant's obligations hereunder;
however, any transferee of less than all of the space in the Premises shall be
liable only for obligations under this Lease that are properly allocable to the
space subject to the Transfer for the period of the Transfer. No Transfer shall
release Tenant from its obligations under this Lease, but rather Tenant and its
transferee shall be jointly and severally liable therefor. Landlord's consent to
any Transfer shall not waive Landlord's rights as to any subsequent Transfers.
If an Event of Default occurs while the Premises or any part thereof are subject
to a Transfer, then Landlord, in addition to its other remedies, may collect
directly from such transferee all rents becoming due to Tenant and apply such
rents against Rent. Tenant authorizes its transferees to make payments of rent
directly to Landlord upon receipt of notice from Landlord to do so. Tenant shall
pay for the cost of any demising walls or other improvements necessitated by a
proposed subletting or assignment. Notwithstanding any provisions of this
Section 9(a) to the contrary, Tenant may assign or sublet, without Landlord's
prior written consent, to any entity into or with which Tenant is merged or
consolidated or to which all or substantially all of Tenant's assets are
transferred or to any entity which controls or is controlled by Tenant or is
under common control with Tenant ("Affiliate of Tenant"), provided that (i) the
assignee agrees directly with Landlord, by written instrument in form
satisfactory to Landlord, to be bound by all obligations of Tenant hereunder,
including, without limitation, the covenant against further Transfer, (ii)
Tenant provides Landlord with notice of and information (reasonably satisfactory
to Landlord) regarding any such Affiliate of Tenant and such assignment to such
Affiliate of Tenant before the effective date thereof, (iii) Tenant shall remain
fully liable for all obligations of Tenant hereunder, and (iv) the Affiliate of
Tenant has a net worth equal to or greater than the greater of (A) ninety-five
percent (95%) of Tenant's net worth as of the date hereof or (B) ninety-five
percent (95%) of Tenant's net worth at the time of the Transfer.
(b)......Cancellation. Landlord may, within thirty (30) days
after submission of Tenant's written request for Landlord's consent to an
assignment or subletting (except for an assignment or sublease to an Affiliate
of Tenant), cancel this Lease as to the portion of the Premises proposed to be
sublet or assigned as of the date the proposed Transfer is to be effective,
unless, and subject to the provisions of the succeeding sentence, Tenant
withdraws its request for Landlord's consent within ten (10) days after
Landlord's notice to Tenant of Landlord's cancellation of this Lease as to a
portion of such Premises. Tenant shall only have the right to withdraw its
request for Landlord's consent if it pertains to a sublease of a portion of the
Building or a sublease of the Premises for less than the remainder of the Term.
If Landlord cancels this Lease as to any portion of the Premises (assuming
Tenant does not withdraw its request as aforesaid), then this Lease shall cease
for such portion of the Premises and Tenant shall pay to Landlord all Rent
accrued through the cancellation date relating to the portion of the Premises
covered by the proposed Transfer. Thereafter, Landlord may lease such portion of
the Premises to the prospective transferee (or to any other person) without
liability to Tenant.
(c)......Additional Compensation. Tenant shall pay to
Landlord, immediately upon receipt thereof, the excess of (1) all compensation
received by Tenant for a Transfer less the costs reasonably incurred by Tenant
with unaffiliated third parties in connection with such Transfer (i.e.,
brokerage commissions, tenant finish work, and the like) over (2) the Rent
allocable to the portion of the Premises covered thereby.
10. Insurance; Waivers; Subrogation; Indemnity.
(a)......Insurance. Tenant shall maintain throughout the Term
the following insurance policies: (1) commercial general liability insurance in
amounts of $5,000,000 per occurrence or such other amounts as Landlord may from
time to time reasonably require, insuring Tenant, Landlord, Landlord's agents
and their respective affiliates against all liability for injury to or death of
a person or persons or damage to property arising from the use and occupancy of
the Premises, (2) insurance covering the full value of Tenant's property and
improvements, and other property (including property of others) in the Premises,
(3) contractual liability insurance sufficient to cover Tenant's indemnity
obligations hereunder, (4) worker's compensation insurance, and (5) business
interruption insurance. Tenant's insurance shall provide primary coverage to
Landlord when any policy issued to Landlord provides duplicate or similar
coverage, and in such circumstance Landlord's policy will be excess over
Tenant's policy. Tenant shall furnish to Landlord certificates of such insurance
and such other evidence satisfactory to Landlord of the maintenance of all
insurance coverages required hereunder, and Tenant shall obtain a written
obligation on the part of each insurance company to notify Landlord at least
thirty (30) days before cancellation or a material change of any such insurance
policies. All such insurance policies shall be in form, and issued by companies,
reasonably satisfactory to Landlord.
(b)......Waiver of Negligence; No Subrogation. Landlord and
Tenant each waives any claim it might have against the other for any injury to
or death of any person or persons or damage to or theft, destruction, loss, or
loss of use of any property (a "Loss"), to the extent the same is insured
against under any insurance policy that covers the Building, the Premises,
Landlord's or Tenant's fixtures, personal property, leasehold improvements, or
business, or, in the case of Tenant's waiver, is required to be insured against
under the terms hereof, regardless of whether the negligence of the other party
caused such Loss; however, Landlord's waiver shall not include any deductible
amounts on insurance policies carried by Landlord. Each party shall cause its
insurance carrier to endorse all applicable policies waiving the carrier's
rights of recovery under subrogation or otherwise against the other party.
(c)......Indemnity. Subject to Section 10.(b), Tenant shall
defend, indemnify, and hold harmless Landlord and its representatives and agents
from and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorneys' fees) arising from (1)
any Loss arising from any occurrence on the Premises (other than any Loss
arising out of a breach of Tenant's obligations under Section 24.(u), which
shall be subject to the indemnity in such section) or (2) Tenant's failure to
perform its obligations under this Lease, unless caused solely by the negligence
or fault of Landlord or its agents. This indemnity provision shall survive
termination or expiration of this Lease. If any proceeding is filed for which
indemnity is required hereunder, Tenant agrees, upon request therefor, to defend
the indemnified party in such proceeding at its sole cost utilizing counsel
satisfactory to the indemnified party.
(d)......Landlord's Indemnity. Subject to Section 10(b),
Landlord shall defend, indemnify, and hold harmless Tenant from and against all
claims, demands, liabilities, causes of action, suits, judgments and expenses
(including attorneys' fees) for any Loss arising from any occurrence at the
Premises caused or materially contributed to by Landlord's gross negligence in
acting or failing to act, and which Loss was not contributed to in any way by
Tenant's actions or omissions. This indemnity shall survive the expiration or
termination of this Lease.
11. Subordination; Attornment; Notice to Landlord's Mortgagee.
(a)......Subordination. This Lease shall be subordinate to any
deed of trust, mortgage, or other security instrument, or any ground lease,
master lease, or primary lease (any such security instrument or lease, a
"Mortgage"), that now or hereafter covers all or any part of the Premises (the
mortgagee under any such mortgage or the lessor under any such lease is referred
to herein as a "Landlord's Mortgagee"). Any Landlord's Mortgagee may elect, at
any time, unilaterally, to make this Lease superior to its mortgage, ground
lease, or other interest in the Premises by so notifying Tenant in writing.
Tenant shall execute agreements confirming the subordination or superiority of
this Lease to any Mortgage upon Landlord or Landlord's Mortgagee's reasonable
request.
(b)......Attornment. Tenant shall attorn to any party
succeeding to Landlord's interest in the Premises, whether by purchase,
foreclosure, deed in lieu of foreclosure, power of sale, termination of lease,
or otherwise, upon such party's request, and shall execute such agreements
confirming such attornment as such party may reasonably request.
(c)......Notice to Landlord's Mortgagee. Tenant shall not seek
to enforce any remedy it may have for any default on the part of Landlord
without first giving written notice by certified mail, return receipt requested,
specifying the default in reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant, and affording such Landlord's Mortgagee a
reasonable opportunity to perform Landlord's obligations hereunder.
(d)......Landlord's Mortgagee's Protection Provisions. If
Landlord's Mortgagee shall succeed to the interest of Landlord under this Lease,
Landlord's Mortgagee shall not be: (1) liable for any act or omission of any
prior lessor (including Landlord); (2) bound by any rent or additional rent or
advance rent which Tenant might have paid for more than the current month to any
prior lessor (including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; (3) bound by any security or advance
rental deposit made by Tenant which is not delivered or paid over to Landlord's
Mortgagee and with respect to which Tenant shall look solely to Landlord for
refund or reimbursement; (4) bound by any termination, amendment or modification
of this Lease made without Landlord's Mortgagee's consent and written approval,
except for those terminations, amendments and modifications permitted to be made
by Landlord without Landlord's Mortgagee's consent pursuant to the terms of the
loan documents between Landlord and Landlord's Mortgagee; (5) subject to the
defenses which Tenant might have against any prior lessor (including Landlord);
and (6) subject to the offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (A) are expressly
provided in this Lease, (B) relate to periods of time following the acquisition
of the Premises by Landlord's Mortgagee, and (C) Tenant has provided written
notice to Landlord's Mortgagee and provided Landlord's Mortgagee a reasonable
opportunity to cure the event giving rise to such offset event. Landlord's
Mortgagee shall have no liability or responsibility under or pursuant to the
terms of this Lease or otherwise after it ceases to own an interest in the
Premises. Nothing in this Lease shall be construed to require Landlord's
Mortgagee to see to the application of the proceeds of any loan, and Tenant's
agreements set forth herein shall not be impaired on account of any modification
of the documents evidencing and securing any loan.
(e)......Subordination, Non-Disturbance and Attornment
Agreement. Simultaneously upon Tenant's execution of this Lease, Tenant shall
execute a Subordination, Non-Disturbance and Attornment Agreement in the form
attached hereto as Exhibit J. Landlord shall return a fully executed
Subordination, Non-Disturbance and Attornment Agreement in the form attached
hereto as Exhibit J from the Lender named therein to Tenant as soon as
reasonably possible. Landlord shall use reasonable efforts to obtain a so-called
"nondisturbance agreement" from any further Landlord's Mortgagee.
12. Rules and Regulations. Tenant shall comply with the rules and
regulations of the Building which are attached hereto as Exhibit C. Landlord
may, from time to time, change such rules and regulations for the safety, care,
or cleanliness of the Building and related facilities, provided that such
changes will not unreasonably interfere with Tenant's use of the Premises.
Tenant shall be responsible for the compliance with such rules and regulations
by each Tenant Party.
13. Condemnation.
(a)......Total Taking. If the entire Building or Premises
are taken by right of eminent domain or conveyed in lieu
------------
thereof (a "Taking"), this Lease shall terminate as of the date of the Taking.
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(b)......Partial Taking - Tenant's Rights. If any part of the
Building becomes subject to a Taking and such Taking will prevent Tenant from
conducting its business in the Premises in a manner reasonably comparable to
that conducted immediately before such Taking for a period of more than one
hundred eighty (180) days, then Tenant may terminate this Lease as of the date
of such Taking by giving written notice to Landlord within thirty (30) days
after the Taking, and Rent shall be apportioned as of the date of such Taking.
If Tenant does not terminate this Lease, then Rent shall be abated on a
reasonable basis as to that portion of the Premises rendered untenantable by the
Taking.
(c)......Partial Taking - Landlord's Rights. If any material
portion, but less than all, of the Building becomes subject to a Taking, or if
Landlord is required to pay at least $50,000.00 of any of the proceeds received
for a Taking to a Landlord's Mortgagee, then Landlord may terminate this Lease
by delivering written notice thereof to Tenant within thirty (30) days after
such Taking, and Rent shall be apportioned as of the date of such Taking. If
Landlord does not so terminate this Lease, then this Lease will continue, but if
any portion of the Premises has been taken, Rent shall abate as provided in the
last sentence of Section 13.(b). For the purposes of this Section 13 and Section
14, the term "material portion" shall be deemed to mean at least twenty percent
(20%) of the rentable square feet of the Building.
(d)......Award. If any Taking occurs, then Landlord shall
receive the entire award or other compensation for the land on which the
Building is situated, the Building, and other improvements taken, and Tenant may
separately pursue a claim (to the extent it will not reduce Landlord's award)
against the condemnor for the value of Tenant's personal property which Tenant
is entitled to remove under this Lease, moving costs, loss of business, and
other claims it may have.
14. Fire or Other Casualty.
(a)......Repair Estimate. If the Premises or the Building are
damaged by fire or other casualty (a "Casualty"), Landlord shall, within 90 days
after such Casualty, deliver to Tenant a good faith estimate (the "Damage
Notice") of the time needed to repair the damage caused by such Casualty.
(b)......Landlord's and Tenant's Rights. If a material portion
of the Building is damaged by Casualty such that Tenant is prevented from
conducting its business in the Premises in a manner reasonably comparable to
that conducted immediately before such Casualty and Landlord reasonably
estimates that the damage caused thereby cannot be repaired within fifteen (15)
months after the Casualty (as such period may be extended by the number of days
lost as a result of force majeure events up to a maximum of one hundred eighty
(180) days), then Tenant may terminate this Lease by delivering written notice
to Landlord of its election to terminate within thirty (30) days after the
Damage Notice has been delivered to Tenant. If Tenant does not so timely
terminate this Lease, then (subject to Section 14.(c)) Landlord shall repair the
Building as provided below, and Rent for the portion of the Building rendered
untenantable by the damage shall be abated on a reasonable basis from the date
of damage until the completion of the repair, unless a Tenant Party caused such
damage, in which case, Tenant shall continue to pay Rent without abatement.
(c)......Landlord's Rights. If a Casualty damages a material
portion of the Building during the last three (3) years of the Term (as the Term
may be extended pursuant to the provisions of Exhibit G), and Landlord makes a
good faith determination that restoring the Building would be uneconomical, or
if Landlord is required to pay at least $50,000.00 of any insurance proceeds
arising out of the Casualty to a Landlord's Mortgagee, then Landlord may
terminate this Lease by giving written notice of its election to terminate
within thirty (30) days after the Damage Notice has been delivered to Tenant,
and Basic Rent and Additional Rent shall be abated as of the date of the
Casualty.
(d)......Repair Obligation. If neither party elects to
terminate this Lease following a Casualty, then Landlord shall, within a
reasonable time after such Casualty, begin to repair the Building and shall
proceed with reasonable diligence to restore the Building to substantially the
same condition as it existed immediately before such Casualty; however, Landlord
shall not be required to repair or replace any of the furniture, equipment,
fixtures, and other improvements which may have been placed by, or at the
request of, Tenant or other occupants in the Building or the Premises, and
Landlord's obligation to repair or restore the Building or Premises shall be
limited to the extent of the insurance proceeds actually received by Landlord
for the Casualty in question.
15. Personal Property Taxes. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture, or fixtures placed by
Tenant in the Premises. If any taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and Landlord elects to pay the
same, or if the assessed value of Landlord's property is increased by inclusion
of such personal property, furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to Landlord, upon demand,
the part of such taxes for which Tenant is primarily liable hereunder; however,
Landlord shall not pay such amount if Tenant notifies Landlord that it will
contest the validity or amount of such taxes before Landlord makes such payment,
and thereafter diligently proceeds with such contest in accordance with law and
if the non-payment thereof does not pose a threat of loss or seizure of the
Building or interest of Landlord therein or impose any fee or penalty against
Landlord.
16. Events of Default. Each of the following occurrences shall be an
"Event of Default":
(a)......Tenant's failure to pay Rent within five (5) days
after Landlord has delivered written notice to Tenant that the same is due;
however, an Event of Default shall occur hereunder without any obligation of
Landlord to give any notice if Landlord has given Tenant written notice under
this Section 16.(a) on two (2) occasions during the twelve (12) month interval
preceding such failure by Tenant;
(b)......For more than thirty (30) consecutive days or more
than thirty (30) days in a ninety (90) day period, Tenant (1) abandons or
vacates the Building or more than twenty-five percent (25%) thereof, or (2)
fails to continuously operate its business in the Building for the Permitted Use
set forth herein;
(c)......Tenant fails to provide any estoppel certificate
within the time period required under Section 24.(e) and such failure shall
continue for five (5) days after written notice thereof from Landlord to Tenant;
(d)......Tenant's failure to perform, comply with, or observe
any other agreement or obligation of Tenant under this Lease and the continuance
of such failure for a period of more than thirty (30) days after Landlord has
delivered to Tenant written notice thereof; provided that if the default is of
such a nature that it may not be reasonably cured within thirty (30) days, then
no Event of Default shall occur hereunder if Tenant commences curing within such
thirty (30) day period and thereafter diligently and continuously pursues such
cure to completion within a period of not more than forty-five (45) days after
the delivery of such notice; and
(e)......The filing of a petition by or against Tenant (the
term "Tenant" shall include, for the purpose of this Section 16.(e), any
guarantor of Tenant's obligations hereunder); (1) in any bankruptcy or other
insolvency proceeding; (2) seeking any relief under any state or federal debtor
relief law; (3) for the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest in this Lease;
or (4) for the reorganization or modification of Tenant's capital structure;
however, if such a petition is filed against Tenant, then such filing shall not
be an Event of Default unless Tenant fails to have the proceedings initiated by
such petition dismissed within sixty (60) days after the filing thereof.
17. Remedies. Upon an Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder, take any of the
following actions:
(a)......Terminate this Lease by giving Tenant written notice
thereof, in which event Tenant shall pay to Landlord the sum of (1) all Rent
accrued hereunder through the date of termination, (2) all amounts dues under
Section 18.(a), and (3) an amount equal to (A) the total Rent that Tenant would
have been required to pay for the remainder of the Term plus Landlord's estimate
of aggregate expenses of reletting to the Premises, minus (B) the then present
fair rental rate value of the Premises for such period;
(b)......Terminate Tenant's right to possess the Premises
without terminating this Lease by giving written notice thereof to Tenant, in
which event Tenant shall pay to Landlord (1) all Rent and other amounts accrued
hereunder to the date of termination of possession, (2) all amounts due from
time to time under Section 18.(a), and (3) all Rent and other net sums required
hereunder to be paid by Tenant during the remainder of the Term, diminished by
any net sums thereafter received by Landlord through reletting the Premises
during such period, after deducting all costs incurred by Landlord in reletting
the Premises. Landlord shall use reasonable efforts to relet the Premises on
such terms as Landlord in its sole discretion may determine (including a term
different from the Term, rental concessions, and alterations to, and improvement
of, the Premises); however, Landlord shall not be obligated to relet the
Premises before leasing space in any building owned by Landlord or any Affiliate
thereof within a one (1) mile radius of the Building (the "Affiliated
Buildings"). Landlord shall not be liable for, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the Premises or
to collect rent due for such reletting. Tenant shall not be entitled to the
excess of any consideration obtained by reletting over the Rent due hereunder.
Reentry by Landlord in the Premises shall not affect Tenant's obligations
hereunder for the unexpired Term; rather, Landlord may, from time to time, bring
an action against Tenant to collect amounts due by Tenant, without the necessity
of Landlord's waiting until the expiration of the Term. Unless Landlord delivers
written notice to Tenant expressly stating that it has elected to terminate this
Lease, all actions taken by Landlord to dispossess or exclude Tenant from the
Premises shall be deemed to be taken under this Section 17.(b). If Landlord
elects to proceed under this Section 17.(b), it may at any time elect to
terminate this Lease under Section 17.(a); and
(c)......Additionally, without notice and provided Landlord
has exercised its rights and remedies set forth in either clause (a) or clause
(b) above, Landlord may alter locks or other security devices at the Premises to
deprive Tenant of access thereto, and Landlord shall not be required to provide
a new key or right of access to Tenant.
Any and all remedies set forth in this Lease: (i) shall be in addition
to any and all other remedies Landlord may have at law or in equity; (ii) shall
be cumulative; and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future. Notwithstanding the foregoing, Landlord shall only recover its
damages allowed hereunder once.
18. Payment by Tenant; Non-Waiver.
(a)......Payment by Tenant. Upon any Event of Default, Tenant
shall pay to Landlord all costs incurred by Landlord (including court costs and
reasonable attorneys' fees and expenses) in (1) obtaining possession of the
Premises, (2) removing and storing Tenant's or any other occupant's property,
(3) repairing, restoring, altering, remodeling, or otherwise putting the
Premises into condition reasonably acceptable to a new tenant, (4) if Tenant is
dispossessed of the Premises and this Lease is not terminated, reletting all or
any part of the Premises (including brokerage commissions, cost of tenant finish
work, and other costs incidental to such reletting), (5) performing Tenant's
obligations which Tenant failed to perform, and (6) enforcing, or advising
Landlord of, its rights, remedies, and recourses arising out of the Event of
Default. To the full extent permitted by law, Landlord and Tenant agree the
federal and state courts of Massachusetts shall have exclusive jurisdiction over
any matter relating to or arising from this Lease and the parties' rights and
obligations under this Lease.
(b)......No Waiver. Landlord's acceptance of Rent following an
Event of Default shall not waive Landlord's rights regarding such Event of
Default. No waiver by Landlord of any violation or breach of any of the terms
contained herein shall waive Landlord's rights regarding any future violation of
such term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of the Rent that is due.
19. Landlord's Lien. Intentionally omitted, provided that the deletion
of this Section shall not be construed to be a waiver of Landlord's lien rights
provided by law.
20. Surrender of Premises. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, free of Hazardous Materials placed on the Premises during the
Term, broom-clean, reasonable wear and tear (and condemnation and Casualty
damage not caused by Tenant, as to which Sections 13 and 14 shall control)
excepted, and shall deliver to Landlord all keys to the Premises. Provided that
Tenant has performed all of its obligations hereunder, Tenant may remove all
unattached trade fixtures, furniture, and personal property placed in the
Premises by Tenant, and shall remove such alterations, additions, improvements,
trade fixtures, personal property, equipment, wiring, and furniture as Landlord
may request. Tenant shall repair all damage caused by such removal. All items
not so removed shall be deemed to have been abandoned by Tenant and may be
appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord
without notice to Tenant and without any obligation to account for such items.
The provisions of this Section 20 shall survive the end of the Term.
21. Holding Over. If Tenant fails to vacate the Premises at the end of
the Term, then Tenant shall be a tenant at will and, in addition to all other
damages incurred by Landlord from and after ninety (90) days after the
expiration of this Lease and remedies to which Landlord may be entitled for such
holding over, Tenant shall pay, in addition to the other Rent, a daily Basic
Rent equal to 200% of the daily Basic Rent payable during the last month of the
Term. The provisions of this Section 21 shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Landlord provided herein
or at law. If Tenant fails to surrender the Premises upon the termination or
expiration of this Lease, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord
harmless from all loss, costs (including reasonable attorneys' fees) and
liability resulting from such failure, including, without limiting the
generality of the foregoing, any claims made by any succeeding tenant founded
upon such failure to surrender, and any lost profits to Landlord resulting
therefrom.
22. Certain Rights Reserved by Landlord. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's occupancy of the
Premises, Landlord shall have the following rights:
(a)......To decorate and to make inspections, repairs,
alterations, additions, changes, or improvements, whether structural or
otherwise, in and about the Building, or any part thereof; to enter upon the
Premises upon reasonable prior notice to Tenant (except in case of an emergency,
in which case no notice shall be required) and, during the continuance of any
such work, to temporarily close doors, entryways, public space, and corridors in
the Building; to interrupt or temporarily suspend Building services and
facilities; and, to the extent required by governmental authorities, to change
the arrangement and location of entrances or passageways, doors, and doorways,
corridors, elevators, stairs, restrooms, or other public parts of the Building;
(b)......To take such reasonable measures as Landlord deems
advisable for the security of the Building and its occupants; evacuating the
Building for cause, suspected cause, or for drill purposes; temporarily denying
access to the Building; and closing the Building after normal business hours and
on Sundays and holidays, subject, however, to Tenant's right to enter when the
Building is closed after normal business hours under such reasonable regulations
as Landlord may prescribe from time to time; and
(c)......To enter the Premises at reasonable hours to show
the Premises to prospective purchasers, lenders, or,
during the last twelve (12) months of the Term, tenants.
23. [Intentionally Omitted].
24. Miscellaneous.
(a)......Landlord Transfer. Landlord may transfer any portion
of the Building and any of its rights under this Lease. If Landlord assigns its
rights under this Lease, then Landlord shall thereby be released from any
further obligations hereunder, provided that the assignee assumes Landlord's
obligations hereunder in writing.
(b)......Landlord's Liability. The liability of Landlord to
Tenant for any default by Landlord under the terms of this Lease shall be
limited to Tenant's actual direct, but not consequential, damages therefor and
shall be recoverable only from the interest of Landlord in the Building, and
Landlord shall not be personally liable for any deficiency. This Section shall
not limit any remedies which Tenant may have for Landlord's defaults which do
not involve the personal liability of Landlord.
(c)......Force Majeure. Other than for Tenant's obligations
under this Lease that can be performed by the payment of money (e.g., payment of
Rent and maintenance of insurance), whenever a period of time is herein
prescribed for action to be taken by either party hereto, such party shall not
be liable or responsible for, and there shall be excluded from the computation
of any such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws, regulations, or
restrictions, or any other causes of any kind whatsoever which are beyond the
control of such party. The provisions of this Section 24(c) shall not apply to
Landlord's obligations to construct the Landlord Work and Tenant Improvements
pursuant to the provisions of this Lease.
(d)......Brokerage. Neither Landlord nor Tenant has dealt with
any broker or agent in connection with the negotiation or execution of this
Lease, other than Grubb & Ellis Management Services, Inc. and Fallon, Hines &
O'Connor, whose commission shall be paid by Landlord. Tenant and Landlord shall
each indemnify the other against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by any broker or agent
claiming the same by, through, or under the indemnifying party.
(e)......Estoppel Certificates. From time to time, Tenant
shall furnish to any party designated by Landlord, within ten (10) business days
after Landlord has made a written request therefor (a copy of which request
shall be simultaneously sent to the Law Department at the Premises), a
certificate signed by Tenant confirming and containing such factual
certifications and representations as to this Lease as Landlord may reasonably
request.
(f)......Notices. All notices and other communications given
pursuant to this Lease shall be in writing and shall be (1) mailed by first
class, United States Mail, postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the address specified next to
their signature block, (2) hand delivered to the intended address, or (3) sent
by prepaid telegram, cable, facsimile transmission, or telex followed by a
confirmatory letter. All notices shall be effective upon delivery to the address
of the addressee. The parties hereto may change their addresses by giving notice
thereof to the other in conformity with this provision.
(g)......Separability. If any clause or provision of this
Lease is illegal, invalid, or unenforceable under present or future laws, then
the remainder of this Lease shall not be affected thereby and in lieu of such
clause or provision, there shall be added as a part of this Lease a clause or
provision as similar in terms to such illegal, invalid, or unenforceable clause
or provision as may be possible and be legal, valid, and enforceable.
(h)......Amendments; and Binding Effect. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by Landlord or
Tenant unless such waiver is in writing signed by Landlord and Tenant, and no
custom or practice which may evolve between the parties in the administration of
the terms hereof shall waive or diminish the right of Landlord or Tenant to
insist upon the performance by Tenant in strict accordance with the terms
hereof. The terms and conditions contained in this Lease shall inure to the
benefit of and be binding upon the parties hereto, and upon their respective
successors in interest and legal representatives, except as otherwise herein
expressly provided. This Lease is for the sole benefit of Landlord and Tenant,
and, other than Landlord's Mortgagee, no third party shall be deemed a third
party beneficiary hereof.
(i)......Quiet Enjoyment. Provided Tenant has performed all of
its obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the terms and
conditions of this Lease.
(j)......No Merger. There shall be no merger of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof if
the same person acquires or holds, directly or indirectly, this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(k)......No Offer. The submission of this Lease to Tenant
shall not be construed as an offer, and neither party
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shall have any rights under this Lease until both parties execute a copy of
this Lease.
(l)......Entire Agreement. This Lease constitutes the entire
agreement between Landlord and Tenant regarding the subject matter hereof and
supersedes all oral statements and prior writings relating thereto. Except for
those set forth in this Lease, no representations, warranties, or agreements
have been made by Landlord or Tenant to the other with respect to this Lease or
the obligations of Landlord or Tenant in connection therewith. The normal rule
of construction that any ambiguities be resolved against the drafting party
shall not apply to the interpretation of this Lease or any exhibits or
amendments hereto.
(m)......Waiver of Jury Trial. To the maximum extent
permitted by law, Landlord and Tenant each waive right to
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trial by jury in any litigation arising out of or with respect to this Lease.
(n)......Governing Law. This Lease shall be governed by and
construed in accordance with the laws of the State in
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which the Premises are located.
(o)......Joint and Several Liability. If Tenant is comprised
of more than one party, each such party shall be jointly and severally liable
for Tenant's obligations under this Lease. If Landlord is comprised of more than
one party, each such party shall be jointly and severally liable for Landlord's
obligations under this Lease.
(p)......Financial Reports. Within fifteen (15) days after
Landlord's request, Tenant will furnish Tenant's most recent audited financial
statements (including any notes to them) to Landlord, or, if no such audited
statements have been prepared, such other financial statements (and notes to
them) as may have been prepared by an independent certified public accountant
or, failing those, Tenant's internally prepared financial statements. Tenant
will discuss its financial statements with Landlord and will give Landlord
access to Tenant's books and records in order to enable Landlord to verify the
financial statements. Landlord will not disclose any aspect of Tenant's
financial statements that Tenant designates to Landlord as confidential except
(1) to Landlord's Mortgagee or prospective purchasers of the Building, (2) in
litigation between Landlord and Tenant, and/or (3) if required by court order.
(q)......Landlord's Fees. Whenever Tenant requests Landlord to
take any action or give any consent required or permitted under this Lease,
Tenant will reimburse Landlord for Landlord's reasonable, actual out-of-pocket
costs incurred in reviewing the proposed action or consent, including without
limitation reasonable attorneys', engineers' or architects' fees, within thirty
(30) days after Landlord's delivery to Tenant of a statement of such costs.
Tenant will be obligated to make such reimbursement without regard to whether
Landlord consents to any such proposed action.
(r)......Telecommunications. Subject to the provisions of
Section 7 above, Tenant, at its sole cost and expense and with Landlord's prior
written consent (which consent shall not be unreasonably withheld or delayed):
(i) may install underground fiber optic lines within the Premises; and (ii) to
the extent Landlord continues to own the 4 Omni Way Offer Space (as hereinafter
defined) and Tenant leases the 4 Omni Way Offer Space, may use any existing
telecommunications systems (including, without limitation, any existing
underground tunnels and/or conduits) located on the 4 Omni Way Offer Space or
any future telecommunications systems located on such Space and approved by
Landlord. Notwithstanding any provisions of this Section 24(r) to the contrary,
Landlord shall not be deemed to have unreasonably withheld its consent to any
installation that would affect the Building's structure or its HVAC, plumbing,
electrical, or mechanical systems or any other improvements or any of their
respective HVAC, plumbing, electrical or mechanical systems, if any. Tenant
shall promptly repair and restore any damage caused by any such installation
and, upon Landlord's request, at the earlier termination or expiration of this
Lease, Tenant shall restore the Premises and any other affected property to the
condition that existed on the date of this Lease. Any and all such installations
of fiber optic lines shall comply with all applicable Laws. Tenant acknowledges
and agrees that Tenant's right to use any such existing and/or future
telecommunications systems shall not be exclusive and that Landlord is in no way
making any representations or warranties with respect to such telecommunications
systems, including, without limitation, any representations or warranties with
respect to the structural integrity, the adequacy and/or utility of any such
telecommunications systems and/or their compliance with applicable Laws.
(s)......General Definitions. The following terms shall have
the following meanings: "Laws" means all federal, state, and local laws, rules
and regulations, all court orders, all governmental directives and governmental
orders, and all restrictive covenants affecting the Property, and "Law" means
any of the foregoing; "Affiliate" means any person or entity which, directly or
indirectly, controls, is controlled by, or is under common control with the
party in question; "Tenant Party" shall include Tenant, any assignees claiming
by, through, or under Tenant, any subtenants claiming by, through, or under
Tenant, and any agents, contractors, employees, invitees of the foregoing
parties; and "including" means including, without limitation.
(t)......Confidentiality. Tenant acknowledges that the terms
and conditions of this Lease are to remain confidential for Landlord's benefit,
and may not be disclosed by Tenant to anyone, by any manner or means, directly
or indirectly, without Landlord's prior written consent, other than to Tenant's
lender's, accountants, attorneys or other advisors on a need to know basis only
provided such advisors agree to keep the terms and conditions of this Lease
confidential. The consent by Landlord to any disclosures shall not be deemed to
be a waiver on the part of Landlord of any prohibition against any future
disclosure.
(u)......Hazardous Materials. The term "Hazardous Materials"
means any substance, material, or waste which is now or hereafter classified or
considered to be hazardous, toxic, or dangerous under any Law relating to
pollution or the protection or regulation of human health, natural resources or
the environment, or poses or threatens to pose a hazard to the health or safety
of persons on the Premises or in the Building. Tenant shall not use, generate,
store, or dispose of, or permit the use, generation, storage or disposal of
Hazardous Materials on or about the Premises or the Building except in a manner
and quantity necessary for the ordinary performance of Tenant's business, and
then in compliance with all Laws. If Tenant breaches its obligations under this
Section 24.(u), Landlord may immediately take any and all action reasonably
appropriate to remedy the same, including taking all appropriate action to clean
up or remediate any contamination resulting from Tenant's use, generation,
storage or disposal of Hazardous Materials. Tenant shall defend, indemnify, and
hold harmless Landlord and its representatives and agents from and against any
and all claims, demands, liabilities, causes of action, suits, judgments,
damages and expenses (including attorneys' fees and cost of clean up and
remediation) arising from Tenant's failure to comply with the provisions of this
Section 24.(u). This indemnity provision shall survive termination or expiration
of the Lease. Except as set forth in the Environmental Reports (as hereinafter
defined), to the actual knowledge of Landlord, Landlord represents that there
are no Hazardous Materials on the Premises as of the date of this Lease. For the
purposes hereof, "Environmental Reports" shall mean that certain Phase I
Environmental Site Assessment and Subsurface Investigation Report prepared in
October, 1997 by ENSR in connection with, among other properties, the Premises.
(v)......List of Exhibits. All exhibits and attachments
attached hereto are incorporated herein by this reference.
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Exhibit A -.......Site Plan of Premises
Exhibit B -.......Legal Description of Building
Exhibit C -.......Premises Rules and Regulations
Exhibit D - Landlord Work and Tenant Improvements
Exhibit E - Parking
Exhibit F - Sample Letter of Credit
Exhibit G - Renewal Option
Exhibit H - First Amendment to Lease
Exhibit I - Building Holidays
Exhibit J - Form of Subordination, Non-disturbance and
Attornment Agreement
Exhibit K - Right of First Offer Re: 4 Omni Way
(w)......Time of Essence. Time is of the essence of this
Lease and each and all of its provisions.
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(x)......Notice of Lease. Tenant agrees not to record this
Lease and, subject to the provisions of Section 24(t) above, to keep the terms
of this Lease confidential, but each party hereto agrees, at the request of the
others to execute a so-called Notice of Lease in recordable form complying with
applicable law and reasonably satisfactory to Landlord's attorneys. In no event
shall such document set forth the Rent or other charges payable by Tenant
hereunder.
(y)......First Amendment to Lease. Tenant agrees that, within
ten (10) business days of Landlord's request, it will execute and deliver to
Landlord the First Amendment to Lease attached hereto as Exhibit H setting
forth, among other things, the actual Commencement Date and the date upon which
the Term expires.
(z)......Corporate Approval. Concurrently with its execution
of the Lease, each of Tenant and Landlord shall provide the other party with
duly authorized and executed corporate resolutions (in form and substance
reasonably satisfactory to the other party's counsel) authorizing the entering
into and consummation of the transactions contemplated by this Lease and
designating the corporate or other officer or officers to execute this Lease on
behalf of the applicable party.
(aa).....Building Signage. Subject to Landlord's prior written
consent (which shall not be unreasonably withheld or delayed), compliance with
all Laws and at the Tenant's sole cost and expense, Tenant may erect exterior
building signage.
(bb).....Rooftop Equipment. Tenant may install, at Tenant's
risk and expense and to be used solely by Tenant, a dish style antennae of no
more than five (5) feet in diameter (the "Rooftop Equipment") on the roof of the
Building at a location approved by Landlord. Before installing the Rooftop
Equipment, Tenant shall submit to Landlord for its approval plans and
specifications which (A) specify in detail the design, location and size of the
Rooftop Equipment (and, with respect to the Rooftop Equipment, such
specifications shall also contain the frequency of such equipment) and (B) are
sufficiently detailed to allow for the installation of the Rooftop Equipment in
a good and workmanlike manner and in accordance with all Laws. None of the
Rooftop Equipment shall protrude more than five (5) feet above the elevation of
the roof on which it is installed and all such equipment must be painted in a
color reasonably acceptable to Landlord to minimize visibility. If Landlord
approves of such plans (which approval shall not be unreasonably withheld or
delayed unless the installation of any Rooftop Equipment penetrates the roof,
affects the Building's structure or any of its HVAC, mechanical, electrical and
plumbing equipment, or violates or in any way compromises any roof warranty),
Tenant shall install (in a good and workmanlike manner), maintain and use the
Rooftop Equipment in accordance with all Laws and shall obtain all consents and
permits required for the installation and operation thereof; copies of all such
permits and evidence of such consents must be submitted to Landlord before
Tenant begins to install the Rooftop Equipment. Tenant shall thereafter maintain
all permits necessary for the maintenance and operation of the Rooftop Equipment
while it is on the Building. Landlord may require that Tenant screen the Rooftop
Equipment with a parapet or other screening device acceptable to Landlord. All
electrical usage for the Rooftop Equipment shall be separately metered or, at
Landlord's election, shall be placed on the same electrical meter as the
Premises. Tenant shall maintain the Rooftop Equipment and screening device in
good repair and condition. Landlord may relocate the Rooftop Equipment to
another location on the roof of the Building at its sole cost and expense upon
prior written notice to Tenant so long as the new location does not materially
interfere with Tenant's reception received by the satellite or antennae. Upon
reasonable prior notice to Landlord, Tenant shall, at its risk and expense,
remove the Rooftop Equipment (including all wiring related thereto), within five
(5) days after the occurrence of any of the following events: (i) the
termination of Tenant's right to possess the Premises; (ii) the termination of
the Lease; (iii) the expiration of the Term; or (iv) the Premises shall be
vacated by Tenant and any and all assignees and/or sublessees approved by
Landlord hereunder. If Tenant fails to do so, Landlord may remove all or any
part of the Rooftop Equipment and store or dispose of it in any manner Landlord
deems appropriate without liability to Tenant; Tenant shall reimburse Landlord
for all costs incurred by Landlord in connection therewith within ten (10) days
after Landlord's request therefor. Tenant shall repair any damage to the
Building caused by or relating to the Rooftop Equipment, including that which is
caused by its installation, maintenance, use, or removal and shall indemnify
Landlord against all liabilities, losses, damages, and costs arising from the
installation, maintenance, use, or removal of the Rooftop Equipment (unless the
liabilities, losses, damages, and costs in question were caused by Landlord's
sole or gross negligence or wilful misconduct). All work relating to the Rooftop
Equipment shall, at Tenant's expense, be coordinated with Landlord's roofing
contractor so as not to affect any warranty for the Building's roof and shall
not penetrate the roof.
(cc).....Access. Tenant shall have twenty-four (24) hour access to the
Premises seven (7) days a week (subject to
force majeure, emergency, etc.).
(dd).....Arbitration. (1) In any case in which it is
specifically provided by the terms of this Lease that a matter shall be
determined by arbitration, such arbitration shall be conducted pursuant to
applicable statutes of The Commonwealth of Massachusetts at the time in effect
and, to the extent permitted by said statutes, in the manner specified in this
Section 24(dd) and, to the extent not inconsistent with said statutes and this
Section 24(dd), in accordance with the Commercial Arbitration Rules at the time
in effect of the American Arbitration Association; provided that all arbitrators
selected hereunder shall be persons of recognized competence who are
unaffiliated with either party (either by direct or indirect relationship or
significant business relationship) and shall have at least ten (10) years'
experience as a commercial real estate broker or appraiser in the Greater Boston
area.
(2) The party desiring such arbitration shall give written notice to
that effect to the other party and, in such notice, shall specify the nature of
the dispute to be arbitrated and shall appoint one of the arbitrators in
accordance with the requirements of Section 24(dd)(1). Within fifteen (15) days
thereafter, the other party shall by written notice to the original party
appoint a second person as an arbitrator in accordance with the requirements of
this Section 24(dd)(1). The arbitrators thus appointed, within fifteen (15) days
of the appointment of the second such arbitrator, shall appoint a third person
in accordance with the requirements of Section 24(dd)(1), and such three (3)
arbitrators shall determine such matter as promptly as possible; provided that:
(A)......if the second arbitrator shall not have been appointed as aforesaid,
the first arbitrator shall proceed to
determine the matter; and
(B)......if the two (2) arbitrators appointed by the parties
shall be unable to agree within fifteen (15) days after the
appointment of the second arbitrator upon the appointment of a
third arbitrator, they shall give written notice of such
failure to agree to the parties, and, if the parties fail to
agree upon the selection of such third arbitrator within
fifteen (15) days after the arbitrators appointed by the
parties given notice as aforesaid, then within ten (10) days
thereafter either of the parties upon written notice to the
other party, may request such appointment by the then
Governing Board of the New England Chapter of the American
Institute of Real Estate Appraisers (or any organization that
may be successor thereto) or, in its absence, refusal, failure
or inability to act, may apply for such appointment to any
Court of The Commonwealth of Massachusetts having general
equity powers or to any other court having jurisdiction and
exercising functions similar to such court.
(3) The arbitrator or arbitrators shall have the right only to
interpret and apply the terms of this Lease, and may not change any such terms
or deprive any party to this Lease of any right or remedy expressly or impliedly
provided in this Lease. Landlord and Tenant each shall be entitled to present
evidence and arguments to the arbitrators.
(4) The determination of the majority of the arbitrators or of the sole
arbitrator, as the case may be, shall be final and binding in accordance with
the provisions of M.G.L. c. 241. The arbitrators shall give written notice of
their determination to Landlord and Tenant and shall furnish to each a signed
copy of such determination.
(5) The fees and expenses of all arbitrators shall be borne equally by
Landlord and Tenant.
(6) In the event of the failure, refusal or inability of any arbitrator
to act, a new arbitrator shall be appointed in his stead, which appointment
shall be made in the same manner as hereinbefore provided for the appointment of
the arbitrator so failing, refusing or unable to act, or to continue to act.
(7) During any period of arbitration under this Section 24(dd) of any
matter stated in this Lease to be specifically subject to arbitration, neither
Landlord nor Tenant shall be deemed to be in default with respect to the
performance of any covenant, duty or obligation relating to such matter, and any
grace period or permitted delay in such performance otherwise provided for in
this Lease shall be automatically extended by such period of arbitration.
(ee).....Campus Setting. At Tenant's request and sole cost and
expense, Landlord shall use reasonable efforts to assist Tenant in creating a
campus environment; provided, however, (i) any alterations to the Premises by
Tenant shall be subject to the provisions of this Lease, including without
limitation, Section 7, (ii) Landlord shall not be required to render any such
assistance on a matter which would adversely affect the Premises in any manner,
(iii) Landlord shall only render such assistance with respect to the Premises,
and (iv) nothing in this Lease is intended to permit Tenant to make any
alterations to any property other than the Premises.
(ff).....Termination Agreement with Sun Microsystems. This
Lease is subject to and contingent upon the execution and delivery of a mutually
acceptable termination agreement by and between Landlord and Sun Microsystems,
Inc. respecting that certain Lease dated June 29, 1992 by and between Teachers
Realty Corporation (the successor of which is Landlord) and Tenant respecting
the Premises ("Sun Microsystems Termination Agreement"). If, for whatever
reason, Landlord and Sun Microsystems, Inc. do not enter into the Sun
Microsystems Termination Agreement, then this Lease shall not be effective,
Tenant shall have no rights pursuant to this Lease, and Landlord shall have no
obligations to Tenant hereunder.
(gg).....Termination of 6 Omni Way Lease. The Lease dated
October 28, 1993 by and between Teachers Realty Corporation (the successor of
which is Landlord) and Tenant (the "6 Omni Way Lease") for the property known
and numbered as 6 Omni Way, Chelmsford, Massachusetts (the "6 Omni Way
Premises") shall be automatically terminated and, subject to the provisions of
this Section 24(gg), of no further force and effect upon the date ("Termination
Date") that each of the following has occurred:
(i) the Commencement Date (as herein defined) has
occurred;
(ii) Tenant is using and occupying the Premises (as
herein defined) for the Permitted Use; (iii)
[intentionally omitted]; (iv) Tenant has paid rent
and all other amounts due and payable by Tenant to
Landlord for the period
up through and including the Termination
Date under the 6 Omni Way Lease (including,
without limitation, all Taxes and Operating
Expenses due and owing up through and
including the Termination Date which may be
adjusted after the Termination Date;
provided however, adjustments to Taxes and
Operating Expenses may be paid after the
Termination Date provided such Taxes and
Operating Expenses are paid in accordance
with the provisions of the 6 Omni Way
Lease), which obligations shall survive the
early termination of the 6 Omni Way Lease;
and
.........(v) within sixty (60) days after the
Commencement Date (as herein defined) (the "Scheduled Termination Date"),
Tenant has vacated and surrendered the 6 Omni Way Premises in an as-is
broom-clean condition (except that Tenant shall disconnect and remove the
two (2) ground based HVAC units located on the 6 Omni Way Premises and bring
the power source back to its original location and shall restore the ground
covered by such HVAC units to the condition which existed prior to the
installation of such HVAC units) and in accordance with the provisions of
the 6 Omni Way Lease, including, without limitation, Sections 7.2, 14.21 and
14.27 thereof.
If Tenant fails to surrender the 6 Omni Way Premises in accordance with clause
(v) above, Landlord shall have all rights and remedies afforded Landlord under
the 6 Omni Way Lease, at law and in equity as if the Scheduled Termination Date
were the expiration date of the term of the 6 Omni Way Lease. After the
Termination Date, Tenant shall perform all obligations under the 6 Omni Way
Lease which expressly survive the expiration or termination of such Lease,
including, without limitation, the provisions of Sections 10.1, 10.5 and 14.25
thereof. Except as set forth herein and provided that Tenant surrenders the 6
Omni Way Premises in accordance with this Section 24(gg), all rights and
obligations of the parties under the 6 Omni Way Lease shall cease as of the
Termination Date.
25. Other Provisions.
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES
ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE AND, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT
DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF
ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this Lease Agreement to be duly executed as
a Massachusetts instrument under seal as of the day and year first above
written.
TENANT:
KRONOS INCORPORATED, a Massachusetts corporation
By: /x/ Paul Lacy
Name: Paul Lacy
Title: Vice President Finance & Admin
Address: Prior to the Commencement Date:
400 Fifth Avenue
Waltham, MA 02151
Telecopy: (781) 622-3950
As of the Commencement Date:
400 Fifth Avenue
Waltham, MA 02151
Telecopy: (781) 622-3950
LANDLORD:
W9/TIB REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership
By: W9/TIB Gen-Par, Inc., a Delaware
corporation, its general partner
By: /s/ Stephen M. Abelman
Name: Stephen M. Abelman
Title: Assistant Vice President
Address: c/o Archon Group, L.P.
1275 K Street NW, Suite 900
Washington, DC 20005
Telecopy: (202) 216-5801
A-1
EXHIBIT A
SITE PLAN OF PREMISES
[Map of Area Plot Plans]
B-1
EXHIBIT B
LEGAL DESCRIPTION OF PREMISES
Lot 2A as shown on that certain plan entitled "Plan of Land of
Billerica Road Site, Chelmsford, MA", which plan is recorded with the Middlesex
North District Registry of Deeds in Plan Book 143 as Plan 143.
C-1
EXHIBIT C
PREMISES RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by Tenant or used by Tenant for purposes other
than ingress and egress to and from the Building and for going from one to
another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid by Tenant.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Building without the prior
written consent of Landlord. No nails, hooks or screws shall be driven or
inserted in any part of the Building except by Building maintenance personnel.
No curtains or other window treatments shall be placed between the glass and the
Building standard window treatments.
4. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner acceptable to
Landlord which may include the use of such supporting devices as Landlord may
require. All damages to the Building caused by the installation or removal of
any property of Tenant, or done by Tenant's property while in the Building,
shall be repaired at the expense of such tenant.
5. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building.
6. Tenant shall not use or keep in the Building any flammable or
explosive fluid or substance, except that Tenant may keep flammable cleaning
supplies secured in a fireproof cabinet or locker and otherwise in accordance
with all applicable Laws.
7. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
D-2
EXHIBIT D
LANDLORD WORK AND TENANT IMPROVEMENTS
1. Except as set forth in this Exhibit, Tenant accepts the Premises in
their "AS-IS" condition on the date that this Lease is entered into.
2. Landlord shall have no obligation to perform any work therein except
for the following (collectively, the "Landlord Work"): (i) Landlord will clean
the carpets in the Building; (ii) Landlord will repair any holes in the interior
walls of the Building; and (iii) the HVAC and mechanical systems shall be
delivered in good working order.
3. Tenant shall provide to Landlord for its approval final working
drawings, prepared by an architect that has been approved by Landlord (which
approval shall not unreasonably be withheld), of all improvements that Tenant
proposes to install in the Premises; such working drawings shall include the
partition layout, ceiling plan, electrical outlets and switches, telephone
outlets, drawings for any modifications to the mechanical and plumbing systems
of the Building, and detailed plans and specifications for the construction of
the improvements called for under this Exhibit in accordance with all applicable
governmental laws, codes, rules, and regulations. If any of Tenant's proposed
construction work will affect the Building's HVAC, electrical, mechanical, or
plumbing systems, then the working drawings pertaining thereto must be approved
by the Building's engineer of record. Landlord's approval of such working
drawings shall not be unreasonably withheld, provided that (a) they comply with
all laws, rules, and regulations, (b) such working drawings are sufficiently
detailed to allow construction of the improvements in a good and workmanlike
manner, and (c) the improvements depicted thereon conform to the rules and
regulations promulgated from time to time by the Landlord for the construction
of tenant improvements (a copy of which has been delivered to Tenant). As used
herein, "Working Drawings" shall mean the final working drawings approved by
Landlord, as amended from time to time by any approved changes thereto, and
"Work" shall mean all improvements to be constructed in accordance with and as
indicated on the Working Drawings. Landlord's approval of the Working Drawings
and/or review of any of the Work shall not be a representation or warranty of
Landlord that such drawings and/or any Work, as applicable, are adequate for any
use or comply with any law, but shall merely be the consent of Landlord thereto.
Landlord shall, at Tenant's request, sign the Working Drawings to evidence its
review and approval thereof. All changes in the Work must receive the prior
written approval of Landlord, and in the event of any such approved change
Tenant shall, upon completion of the Work, furnish Landlord with an accurate,
reproducible "as-built" plan of the improvements as constructed.
4. The Work shall be performed only by contractors and subcontractors
approved in writing by Landlord, which approval shall not be unreasonably
withheld. All contractors and subcontractors shall be required to procure and
maintain insurance against such risks, in such amounts, and with such companies
as Landlord may reasonably require. Certificates of such insurance, with paid
receipts therefor, must be received by Landlord before the Work is commenced.
Promptly upon Landlord's approval of the Working Drawings, Tenant shall commence
the construction of the Work and diligently and continuously pursue the
completion of the same. The Work shall be performed in a good and workmanlike
manner free of defects, shall conform strictly with the Working Drawings. All
contractors and subcontractors shall contact Landlord and schedule time periods
during which they may use Building facilities in connection with the Work (e.g.,
elevators, excess electricity, etc.).
5. The entire cost of performing the Work (including, without
limitation, design of the Work and preparation of the Working Drawings, costs of
construction, labor and materials, electrical usage during construction,
additional janitorial services, general tenant signage, related taxes and
insurance costs, all of which costs are herein collectively called the "Total
Construction Costs") in excess of the Construction Allowance (as hereinafter
defined) shall be paid by Tenant.
6. Landlord shall provide to Tenant a construction allowance (the
"Construction Allowance") equal to the lesser of (a) $10.00 per rentable square
foot in the Premises or (b) the Total Construction Costs, as adjusted for any
approved changes to the Work.
Subject to the terms and conditions of this Lease, Landlord shall pay
the Construction Allowance to Tenant for the purpose of financing a portion of
the Work. As conditions to Tenant's right to receive the Construction Allowance:
(i) Tenant shall not be in default under the Lease; (ii) the Lease shall be in
full force and effect; (iii) the Work shall be, in Landlord's reasonable
discretion, substantially complete; and (iv) Tenant shall furnish to Landlord:
(A) a Certificate of Occupancy respecting the Premises; and (B) such evidence as
Landlord may reasonably require to evidence that all persons furnishing or
supplying labor and materials in connection with the construction of the Work
have been paid and that no lien exists of record with respect thereto. Landlord
shall fund the Construction Allowance within twenty (20) business days from
Tenant's written request for the same provided that Tenant has complied with the
requirements set forth in the preceding sentence. Upon paying the full amount of
the Construction Allowance to Tenant in accordance with the provisions hereof,
Landlord shall have no further obligation to extend any credit to Tenant.
7. In consideration for Landlord's management and supervision of
services performed in connection with the Work, Tenant shall pay to Landlord,
within ten (10) business days after demand therefor, the actual costs incurred
by Landlord to review the Working Drawings and/or any drafts and/or
modifications thereto and to review the construction of the Work.
E-1
EXHIBIT E
PARKING
Landlord shall provide, and Tenant may use three hundred one (301)
undesignated parking spaces in the parking garage/area associated with the
Building (the "Parking Area") during the initial Term at no additional charge.
After the initial Term, Tenant may use such parking spaces and pay for the use
of such parking spaces at such rates and subject to such terms, conditions and
regulations as are from time to time charged or applicable to patrons of the
Parking Area or similar parking areas. If, for any reason, Tenant is unable to
use all or any portion of the parking spaces to which it is entitled hereunder,
then Tenant's obligations to pay for such spaces shall be abated for so long as
Tenant does not have the use thereof; this abatement shall be in full settlement
of all claims that Tenant might otherwise have against Landlord because of
Landlord's failure or inability to provide Tenant with such parking spaces.
F-4
EXHIBIT F
SAMPLE LETTER OF CREDIT
Beneficiary/Landlord: Issuance Date:
W9/TIB Real Estate Limited Partnership , 1998
-----------------------------------
c/o Archon Group, L.P.
1275 K Street NW, Suite 900 Irrevocable Standby Letter
Washington, DC 20005 of Credit No.
--------------------
Applicant/Accountee/Tenant: Credit Amount: USD $160,000.00
Kronos Incorporated Up to an Aggregate Thereof
Date and Place of Expiry:
, 1998
At Our Counters in Boston, MA
Ladies and Gentlemen:
We hereby issue our irrevocable standby letter of credit in your favor
for the account of the applicant for an aggregate amount not to exceed ONE
HUNDRED SIXTY THOUSAND US DOLLARS available for payment by presentation of your
draft(s) drawn on ourselves at sight, and accompanied by the following
documents:
1. Your statement/certificate, on your letterhead, signed by a person
purporting to be your authorized officer/representative, appropriately completed
in the following form:
A. "The undersigned, an authorized officer/representative of W9/TIB
Real Estate Limited Partnership (the "Landlord"), hereby certifies with regard
to __________ standby letter of credit no. __________ that Kronos Incorporated
(the "Tenant") is in default relative to the Lease Agreement dated
________________, 1998 (the "Lease") by and between Landlord and Tenant and such
default has continued uncured beyond all applicable notice and grace periods."
OR
B. "We are in receipt of _______________ Notice of Non-Extension of its
letter of credit no. _______________ and Kronos Incorporated (the "Tenant") has
failed to provide a replacement letter of credit reasonably acceptable to us as
of the date of our drawing and the Tenant remains liable to us pursuant to the
Lease."
2. The original of this letter of credit (for endorsement of drawing),
which will be returned unless the credit is fully utilized.
Partial drawings are permitted.
Draft(s) must indicate the name of the issuing bank, the letter of
credit number and must be presented at this office (the address specified
below).
It is a condition of this letter of credit that it shall be deemed
automatically extended without amendment for an additional period of one year
from the present or each future expiration date hereof, but not beyond
_________________ [NOTE: 30 days after expiration of Lease], unless at least
forty-five (45) days prior to any such expiration date we notify you by
certified mail, that we elect not to so extend this letter of credit for any
such additional period. Upon receipt by you of such notice, you may draw
hereunder your draft(s) at sight on ourselves for the then full amount of this
letter of credit accompanied by your statement as specified above.
This letter of credit is transferable in its entirety, but not in part,
to any successor landlord under the Lease and may be successively transferred.
If it is your intention to transfer your interest hereunder, kindly return the
letter of credit to us for appropriate endorsement and furnish us with your
instructions. Please note your signature on your request for transfer must be
authenticated by your bank. (Transfer form is attached.) In the event of
transfer all required documents are to be signed by the transferee.
This letter of credit sets forth in full the terms of our obligations
to you, and our undertaking shall not in any way be amended or amplified by
reference to any documents, instruments or any agreement referred to herein or
to which this letter of credit related, and such reference, if any, shall not be
deemed to incorporate herein by reference any document, instrument or agreement.
Except as otherwise expressly stated herein, this letter of credit is
subject to the "Uniform Customs and Practice for Documentary Credits,
International Chamber of Commerce, Publication N. 500 (1993 Revision)".
We engage with you that all draft(s) drawn under and in compliance with
the terms and conditions of this letter of credit shall be duly honored on
presentation to us at our office at _______________, Boston, MA _______, Attn:
_______________, ____ Floor on or before the expiring date as specified above or
any automatically extended date herein before set forth.
Very truly yours,
By:
Name:
Title:
TRANSFER
This form is to be used where a Letter of Credit is
transferred in its entirety and no substitution of
invoices is involved.
Date
Re: Credit issued or advised by
-----------------------------
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably transfers to:
(Name of Second Beneficiary)
(Address)
(Name of Advising Bank)
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
1. By this transfer, all rights of the undersigned beneficiary in such Letter of
Credit are transferred to the Second Beneficiary and the Second Beneficiary
shall have the sole rights as beneficiary thereof, including sole rights
relating to any amendment, whether increases or extensions or other amendments
and whether now existing or hereafter made. All amendments are to be advised
direct to the Second Beneficiary without necessity of any consent of or notice
to the undersigned beneficiary.
The advice of such Letter of Credit is returned herewith, and we ask
you to endorse the transfer on the reverse thereof, and forward it direct to the
Second Beneficiary with your customary notice of transfer, or advise the letter
of credit to the Second Beneficiary by telex/SWIFT.
SIGNATURE AUTHENTICATED Very truly yours,
(Bank)
By: ______________________________
(Authorized Signature) Name:
Title:
G-2
EXHIBIT G
RENEWAL OPTION
Provided no Event of Default exists at the time Tenant exercises its
option to extend this Lease and at the time the extension Term commences and
Tenant is occupying at least seventy-five percent (75%) of the Premises at the
time of such election, Tenant may renew this Lease for one (1) additional period
of five (5) years, by delivering written notice of the exercise thereof not
later than ten (10) months before the expiration of the Term. On or before the
commencement date of the extended Term in question, Landlord and Tenant shall
execute an amendment to this Lease extending the Term on the same terms provided
in this Lease, except as follows:
(a) The Basic Rent payable for each month during each such
extended Term shall be the Fair Market Rental Value, at the commencement of such
extended Term, for space of equivalent quality, size, utility and location, with
the length of the extended Term and the credit standing of Tenant to be taken
into account;
(b) Tenant shall have no further renewal options unless
expressly granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their
then-current condition, and Landlord shall provide to Tenant mutually agreed
upon allowances (e.g., moving allowance, construction allowance, and the like)
or other tenant inducements.
Tenant's rights under this Exhibit shall terminate if (1) this Lease or
Tenant's right to possession of the Premises is terminated, (2) Tenant assigns
any of its interest in this Lease or sublets more than twenty-five percent (25%)
of the Premises or (3) Tenant fails to timely exercise its option under this
Exhibit, time being of the essence with respect to Tenant's exercise thereof.
For purposes of this Lease, the term "Fair Market Rental Value" shall
mean the fair market rental value of the Premises as of the commencement of the
extension Term and/or expansion space (as applicable), as agreed by the parties
hereto. In the event that Landlord and Tenant are unable to agree on the Fair
Market Rental Value of the Premises for purposes hereof within sixty (60) days
following Tenant's notice of its election to extend this Lease or to lease the
expansion space, then the same shall be determined by binding arbitration in
accordance with Section 24(dd).
The arbitrators, as chosen pursuant to Section 24(dd), shall make their
respective determinations based upon the following assumptions and directions,
and the arbitrators shall be so instructed and duty bound with respect thereto:
(i) the space is available in the then rental market for
single tenant buildings of comparable office buildings in the
495 North markets;
(ii) Landlord has had a reasonable time to locate a tenant for
such space who rents with the knowledge of the uses to which
the space can be utilized;
(iii) neither Landlord nor the prospective tenant is under a
compulsion to rent;
(iv) such space is to be rented as a whole to a single tenant
for general office use for a term of at least five (5) years,
taking into consideration such market factors and other lease
provisions as may then customarily be in effect and applicable
to the rental of such space in that location;
(v) current face rents (i.e., face rents on new leases
executed within the prior twelve (12) months of such
determination or rents for extension terms of older leases
where the rents were agreed upon or determined within the
prior twelve (12) months thereof, in either case (1) as stated
on the face of such lease or as determined by such lease with
respect to an extension option set forth therein, (2) adjusted
so that such face rents include all real estate taxes and
operating costs for such building for the calendar year next
immediately prior to the year in which such extension option
is to become effective, and (3) without regard to rental
concessions of any kind, such as free rent periods, rent
abatements, build-out allowances or the like) then being
obtained by Landlord for space in the Affiliated Buildings
shall be a factor in determining fair market rental value;
(vi) all Operating Costs and Taxes payable by Tenant under the
terms of this Lease shall be payable on the same basis as set
forth in this Lease; and
(vii) the space shall be considered as if rented "as-is".
H-2
EXHIBIT H
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT made this day of , 199__, by and between W9/TIB
REAL ESTATE LIMITED PARTNERSHIP(hereinafter referred to as "Landlord") and
KRONOS INCORPORATED (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant did enter into that certain Lease
Agreement, dated ____________, 1998 (hereinafter the "Lease") for the demise of
certain property located at 2 Omni Way, Chelmsford, Massachusetts and all
improvements located thereon (the "Premises"), which Premises and any and all
improvements located thereon are more particularly described therein;
WHEREAS, all terms defined in the Lease shall have the same meanings
when referred to herein;
WHEREAS, Landlord has requested that Tenant acknowledge the
"Commencement Date" of the Lease, pursuant to and in accordance with Section 2
thereof, and Landlord has further requested Tenant to acknowledge and confirm
(i) its obligations attendant upon such Commencement Date, (ii) the date upon
which the Term of the Lease expires (the "Expiration Date"), pursuant to and in
accordance with Section 2 thereof, and (iii) that the Landlord Work has been
completed in accordance with the provisions of the Lease; and
WHEREAS, Tenant has agreed to acknowledge the Commencement Date and the
Expiration Date of the Lease.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein and in the Lease, Landlord and Tenant
hereby agree as follows:
1. The Commencement Date of the Lease shall be _______________
and the Expiration Date of the Lease shall be , and such
respective dates of commencement and expiration of the Lease
shall, if different from the dates designated in Section 2 of
the Lease, be substituted therefor. It is understood and
agreed by Landlord and Tenant that any and all of Tenant's
covenants and obligations as by the Lease provided shall
become effective as of the Commencement Date.
2. The Landlord Work has been completed in accordance with the
provisions of the Lease, and Tenant has received the
Construction Allowance from Landlord.
EXCEPT as hereby modified and amended, all other terms, provisions,
covenants and conditions of the Lease are ratified and confirmed and shall
remain and in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this First
Amendment to be executed by their duly authorized representatives on the day and
year above written.
WITNESS: LANDLORD:
W9/TIB REAL ESTATE LIMITED
PARTNERSHIP, a Delaware
limited Partnership
By:9/TIB Gen-Par, Inc., a Delaware
corporation, its managing general partner
By:
Name: Name:
Title:
WITNESS: TENANT:
KRONOS INCORPORATED, a Massachusetts
corporation
By:
Name: Name:
Title:
I-1
EXHIBIT I
BUILDING HOLIDAYS
New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, the day after Thanksgiving Day, and Christmas Day (and the
following day when any such day occurs on Sunday).
J-9
EXHIBIT J
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This AGREEMENT is made and entered into as of ___________________, 1999, by
and among LaSalle National Bank, as Trustee for GS Mortgage Securities
Corporation II Commercial Mortgage Pass-Through Certificates, Series 1998-GSFL1
("Lender"), W9/TIB Real Estate Limited Partnership ("Landlord") and Kronos
Incorporated ("Tenant").
1. RECITALS.
1.1 Mortgage. Lender is the holder of a Promissory Note dated
________________, 19____, in the original principal amount of $_________________
of Landlord, which is secured, inter alia, by a Mortgage and Security Agreement
(the "Mortgage") and Assignment of Lease and Rents (the "Lease Assignment")
covering premises more particularly described in the Mortgage (the "Premises").
1.2 Lease. Landlord and Tenant entered into a Lease dated January __,
1999 (the "Lease"), whereby Landlord demised to Tenant a portion of the Premises
(the "Demised Premises").
2. CONSIDERATION. The terms of the Lease constitute a material inducement
to Lender's consent thereto and entering into and performing this Agreement.
3. SUBORDINATION OF THE LEASE. This Lease shall be and is hereby made
subject and subordinate to the Mortgage.
4. NON-DISTURBANCE. Lender shall not, in the exercise of any right, remedy,
or privilege granted by the Mortgage or the Lease Assignment, or otherwise
available to Lender at law or in equity, disturb Tenant's possession under the
Lease so long as:
(a) Tenant is not in default under any provision of the Lease or this
Agreement beyond any applicable notice and/or cure periods at the time Lender
exercises any such right, remedy or privilege; and
(b) The Lease at that time is in force and effect according to its original
terms, or with such amendments or modifications as Lender shall have approved,
if such approval is required by the terms of the Mortgage or the Lease
Assignment; and
(c) Tenant thereafter continues to fully and punctually perform all of its
obligations under the Lease without default thereunder beyond any applicable
cure period; and
(d) Tenant attorns to or at the direction of Lender, as provided in
Paragraph 5.
Without limiting the foregoing, and so long as the foregoing conditions are met,
Lender agrees that (i) Tenant will not be named as a party to any foreclosure or
other proceeding instituted by Lender to enforce the terms of the Mortgage or
the Lease Assignment; (ii) any sale or other transfer of the Demised Premises or
of the Landlord's interest in the Lease, pursuant to foreclosure or any
voluntary conveyance or other proceeding in lieu of foreclosure, will be subject
and subordinate to Tenant's possession under the Lease; and (iii) the Lease will
continue in force and effect according to its original terms, or with such
amendments as Lender shall have approved, if such approval is required by the
terms and conditions of the Mortgage or the Lease Assignment.
5. ATTORNMENT. Tenant shall attorn to Lender, to any receiver or similar
official for the Demised Premises appointed at the instance and request, or with
the consent, of Lender and to any person who acquires the Demised Premises, or
the Landlord's interest in the Lease, or both, pursuant to Lender's exercise of
any right, remedy or privilege granted by the Mortgage, or otherwise at law or
in equity. Without limitation, Tenant shall attorn to any person or entity that
acquired the Demised Premises pursuant to foreclosure of the Mortgage, or by any
proceeding or voluntary conveyance in lieu of such foreclosure, or from Lender,
whether by sale, exchange or otherwise. Any attornment to anyone other than
Lender shall be conditioned upon Tenant receiving a non-disturbance from such
entity.
Upon any attornment under this Paragraph 5, the Lease shall continue in
full force and effect as a direct lease between Tenant and the person or entity
to whom Tenant attorns, except that such person or entity shall not be:
(i) liable for any breach, act or omission of any prior landlord; or
(ii) subject to any offsets, claims or defenses which Tenant might have
against any prior landlord; or
(iii)bound by any rent or additional rent or other payment in lieu of rent
which Tenant might have paid to any prior landlord more than 30 days in advance
of its due date under the Lease or which such person or entity has physical
possession of; or
(iv) bound by any amendment or modification of the Lease made without
Lender's written consent, where such consent is required by the Mortgage; or
(v) bound by any notice given by Tenant to Landlord, whether or not such
notice is given pursuant to the terms of the Lease, unless a copy thereof was
then also given to Lender; or
(vi) be liable for any security deposit or other sums held by any prior
landlord, unless actually received.
The person or entity to whom Tenant attorns shall be liable to Tenant under the
Lease only during such person or entity's period of ownership, and such
liability shall not continue or survive as to the transferor after a transfer by
such person or entity of its interest in the Lease and the Demised Premises.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Landlord and Tenant each hereby represent and warrant to Lender as
follows regarding the Lease:
(a) A true and correct copy of the Lease (inclusive of all riders and
exhibits thereto) is attached to the counterpart of this Agreement being
delivered to Lender. There are no other oral or written agreements,
understandings or the like between Landlord and Tenant relating to the Demised
Premises or the Lease transaction.
(b) The term of the Lease is expected to commence on or about August 1,
1999.
(c) Under the Lease, Tenant shall be obligated to pay rent without present
right of defense or offset, at the rate of $54,818.67 per month. Rent is paid
through and including N/A , 19__. No rent has been paid more than 30 days in
advance, and Tenant has no claim against the Landlord for any deposits or other
sums.
(d) The Lease has not been modified, altered or amended in any respect.
(e) All of the improvements contemplated by the Lease have been entirely
completed as required therein.
(f) The addresses for notices to be sent to Tenant and Landlord are as set
forth in the Lease.
(g) To Tenant's knowledge, Tenant has no right of first refusal, option or
other right to purchase the Premises or any part thereof, including, without
limitation, the Demised Premises.
6.2 Several. Landlord and Tenant severally represent and warrant to Lender
with respect to themselves, but not with respect to the other:
(a) The execution of the Lease was duly authorized, the Lease was properly
executed and is in full force and effect and is valid, binding and enforceable
against Tenant and Landlord and there exists no monetary default or, to the best
of their knowledge, no non-monetary default, nor state of facts which with
notice, the passage of time, or both, could ripen into a default, on the part of
either Tenant or Landlord.
(b) There has not been filed by or against nor, to the best of the
knowledge and belief of the representing party, is there threatened against or
contemplated by, Landlord or Tenant, a petition in bankruptcy, voluntary or
otherwise, any assignment for the benefit of creditors, any petition seeking
reorganization or arrangement under the bankruptcy laws of the United States or
of any state thereof, or any other action brought under said bankruptcy laws.
(c) There has not been any assignment, hypothecation or pledge of the Lease
or rents accruing under the Lease, other than pursuant to the Mortgage and the
Lease Assignment. Tenant makes the representation set forth in this subparagraph
only to its best knowledge and belief.
7. RENTS. Landlord and Tenant jointly and severally acknowledge that the
Lease Assignment provides for the direct payment to Lender of all rents and
other monies due and to become due to Landlord under the Lease upon the
occurrence of certain conditions as set forth in the Lease Assignment without
Lender's taking possession of the Demised Premises or otherwise assuming
Landlord's position or any of Landlord's obligations under the Lease. Upon
receipt from Lender of written notice to pay all such rents and other monies to
or at the direction of Lender, Landlord authorizes and directs Tenant thereafter
to make all such payments to or at the direction of Lender, releases Tenant of
any and all liability to Landlord for any and all payment so made, and shall
defend, indemnify and hold Tenant harmless from and against any and all claims,
demands, losses, or liabilities asserted by, through or under Landlord (except
by Lender) for any and all payments so made. Upon receipt of such notice, Tenant
thereafter shall pay all monies then due and becoming due from Tenant under the
Lease to or at the direction of Lender, notwithstanding any provision of the
Lease to the contrary. Tenant agrees that neither Lender's demanding or
receiving any such payments, nor Lender's exercising any other right, remedy,
privilege, power or immunity granted by the Mortgage or the Lease Assignment,
will operate to impose any liability upon Lender for performance of any
obligation of Landlord under the Lease unless and until Lender elects otherwise
in writing. Such payments shall continue until Lender directs Tenant otherwise
in writing.
Tenant agrees not to pay any rent under the Lease more than 30 days in
advance without Lender's consent. The provisions of this Paragraph 7 will apply
from time to time throughout the term of the Lease.
8. CURE. If Tenant becomes entitled to terminate the Lease or offset,
withhold or abate rents because of any default by Landlord, then Tenant shall
give Lender written notice specifying Landlord's default. Lender then shall have
the right, but not the obligation, to cure the specified default within the
following time periods:
(a) Fifteen days after receipt of such notice with respect to defaults that
can be cured by the payment of money; or
(b) Thirty days after receipt of such notice with respect to any other
default; unless the cure requires Lender to obtain possession of the Demised
Premises, in which case such thirty day period shall not commence until Lender
acquires possession, so long as Lender proceeds promptly to acquire possession
of the Demised Premises with due diligence, by foreclosure of the Mortgage or
otherwise.
Nothing contained in this Paragraph 8 shall require Lender to commence or
continue any foreclosure or other proceedings, or, if Lender acquires possession
of the Demised Premises, to continue such possession, if all defaults specified
by Tenant in its notice are cured. Possession by a receiver, or other similar
official appointed at the instance, or with the consent, of Lender shall
constitute possession by Lender for all purposes under this Paragraph 8.
9. ESTOPPEL LETTERS. Whenever reasonably requested by Lender, Landlord and
Tenant from time to time shall severally execute and deliver to or at the
direction of Lender, and without charge to Lender, one or more written
certifications of all of the matters as set forth in Paragraph 6, whether Tenant
has exercised any renewal option or options and any other information the Lender
may reasonably require to confirm the current status of the Lease, including,
without limitation, a confirmation that the Lease is and remains subordinated as
provided in this Agreement.
10. CASUALTY AND EMINENT DOMAIN. Landlord and Tenant jointly and severally
agree that the Mortgage permits Lender, at its option, to apply to the
indebtedness from time to time secured by the Mortgage any and all insurance
proceeds payable with respect to any casualty loss at the Demised Premises and
any and all awards or other compensation that may be payable for the
condemnation of all or any portion of the Demised Premises, or any interest
therein, or by way of negotiated settlement or conveyance in lieu of
condemnation; and Landlord and Tenant jointly and severally consent to any such
application by Lender. Notwithstanding the foregoing, Landlord and Lender agree
that any and all insurance or condemnation proceeds payable with respect to
Tenant's property or the interruption or relocation of Tenant's business (except
for rental loss insurance proceeds) will be paid to Tenant, so long as they do
not reduce the proceeds otherwise payable to Lender.
11. NOTICES. All notices, demands, and other communications that must or
may be given or made in connection with this Agreement must be in writing and,
unless receipt is expressly required, will be deemed delivered or made 5 days
after having been mailed by registered or certified mail, return receipt
requested, or by express mail, in any event with sufficient postage affixed, and
addressed to the parties as follows:
TO LENDER: c/o AMRESCO Services, L.P.
235 Peachtree Street, N.E., Suite 900
Atlanta, Georgia 30303
Attn.: Private Sector Servicing
TO LANDLORD:W9/TIB Real Estate Limited Partnership
c/o Archon Group, L.P.
1275 K Street NW, Suite 900
Washington, DC 20005
TO TENANT: Kronos Incorporated
400 Fifth Avenue
Waltham, MA 02151
Such addresses may be changed by notice pursuant to this Paragraph 11; but
notice of change of address is effective only upon receipt. Landlord and Tenant
jointly and severally agree that they will furnish Lender with copies of all
notices relating to the Lease. All communications to Lender shall reference
"AMRESCO Loan No.: __________ ".
12. SUCCESSORS AND ASSIGNS. As used in this Agreement, the word "Tenant"
shall mean Tenant and any subsequent holder or holders of an interest under the
Lease, as the text may require, provided that the interest of such holder is
acquired in accordance with the terms and provisions of the Lease and the word
"Lender" shall mean Lender or any other subsequent holder or holders of the
Mortgage or any party acquiring title to the Demised Premises by purchase at a
foreclosure sale, by deed of the Lender, or otherwise. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of Landlord, Tenant and
Lender, their legal representatives, successors and assigns. The terms Lease,
Mortgage and Lease Assignment shall include any and all amendments,
modifications, replacements, substitutions, extensions, renewals and supplements
thereto.
13. FURTHER ASSURANCES. Landlord and Tenant from time to time shall execute
and deliver at Lender's request all instruments that may be necessary or
appropriate to evidence their agreement hereunder provided such instrument
neither increases Tenant's obligations or decreases its rights under the Lease.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument.
15. SEVERABILITY. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision, and any determination that the application of any provision of
this Agreement to any person or to any person or to particular circumstances is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LENDER:
LASALLE NATIONAL BANK, as Trustee for GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series
1998-GSFL1
By: AMRESCO Services, L.P.,
its authorized agent
By: AMRESCO Mortgage Capital, Inc.,
its general partner
By:_____________________________
Name:___________________________
Title: Servicing Officer
LANDLORD:
W9/TIB REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership
By: W9/TIB Gen-Par, Inc., a Delaware
corporation, its general partner
By:
Name:
Title:
TENANT:
KRONOS INCORPORATED, a Massachusetts corporation
By:
Name:
Title:
STATE OF ____________ )
)
COUNTY OF __________ ) _____________ ___, 1999
Then personally appeared the above-named
_________________________________, __________________________________ of AMRESCO
Mortgage Capital, Inc., as general partner of AMRESCO Services, L.P., as
authorized agent for LaSalle National Bank, as Trustee for GS Mortgage
Securities Corporation II Commercial Mortgage Pass-Through Certificates, Series
1998-GSFL1, and acknowledged the foregoing instrument to be his/her free act and
deed and the free act and deed of Bankers Trust Company of California, N.A.,
before me,
------------------------------------
(Seal)
Notary Public
My commission expires:
STATE OF ____________ )
)
COUNTY OF __________ ) _____________ ___, 1999
Then personally appeared the above-named
_________________________________, __________________________________ of W9/TIB
Gen-Par, Inc., as General Partner of W9/TIB Real Estate Limited Partnership, and
acknowledged the foregoing instrument to be his/her free act and deed, the free
act and deed of W9/TIB Gen-Par, Inc., and the free act and deed of W9/TIB Real
Estate Limited Partnership, before me,
------------------------------------
(Seal)
Notary Public
My commission expires:
STATE OF ____________ )
)
COUNTY OF __________ ) _____________ ___, 1999
Then personally appeared the above-named
_________________________________, __________________________________ of Kronos
Incorporated, and acknowledged the foregoing instrument to be his/her free act
and deed and the free act and deed of Kronos Incorporated, before me,
------------------------------------
(Seal)
Notary Public
My commission expires:
K-3
EXHIBIT K
RIGHT OF FIRST OFFER RE 4 OMNI WAY
Subject to the rights of existing tenants to continue to occupy their
respective premises and to any now or hereafter arising extension or expansion
options of other tenants, provided no Event of Default then exists, and provided
Tenant has a net worth equal to or greater than ninety-five percent (95%) of
Tenant's net worth as of the date hereof, Landlord shall, after receiving a
formal request for proposal to which Landlord elects to respond (other than from
the then-current tenant therein), first offer to lease to Tenant the space
designated on page 2 of this Exhibit (the "4 Omni Way Offer Space"); such offer
shall be in writing and specify the market lease terms for the 4 Omni Way Offer
Space, including a lease term of at least five (5) years, the Fair Market Rental
Value (as determined in accordance with Exhibit G above) to be paid for the 4
Omni Way Offer Space and the date on which the 4 Omni Way Offer Space shall be
available for lease (the "4 Omni Way Offer Notice"). Tenant shall notify
Landlord in writing whether Tenant elects to lease the entire 4 Omni Way Offer
Space on the terms set forth in the 4 Omni Way Offer Notice, within seven (7)
business days after Landlord delivers to Tenant the 4 Omni Way Offer Notice. If
Tenant timely elects to lease the 4 Omni Way Offer Space, then Landlord and
Tenant shall, at Landlord's sole discretion, execute a new lease agreement for
the 4 Omni Way Offer Space or an amendment to this Lease within thirty (30) days
after Tenant's election, effective as of the date the 4 Omni Way Offer Space is
available for lease, on the terms set forth in the 4 Omni Way Offer Notice and,
to the extent not inconsistent with the 4 Omni Way Offer Notice terms, the terms
of this Lease.
If Tenant fails or is unable to timely exercise its right hereunder,
then such right shall lapse, time being of the essence with respect to the
exercise thereof, and Landlord may lease all or a portion of the 4 Omni Way
Offer Space to third parties on such terms as Landlord may elect.
Notwithstanding the foregoing, if Landlord leases less than one-half of the 4
Omni Way Offer Space to a third party, Tenant's right of first offer granted
under this Exhibit shall continue with respect to the remainder of the 4 Omni
Way Offer Space not leased to such third party; provided, however, if Tenant
fails or is unable to timely exercise its rights hereunder with respect to the
remainder of the 4 Omni Way Offer Space, then such right to lease the remainder
of the 4 Omni Way Offer Space shall lapse, time being of the essence with
respect to the exercise thereof, and Landlord may lease all or a portion of the
remainder of the 4 Omni Way Offer Space to third parties on such terms as
Landlord may elect. Further, but subject to the provisions of the preceding
sentence, Tenant's right of first offer granted under this Exhibit with respect
to the 4 Omni Way Offer Space shall continue during the initial Term on the same
terms and conditions set forth herein to the extent the 4 Omni Way Offer Space
again becomes available during the initial Term.
Tenant may not exercise its rights under this Exhibit if an Event of
Default exists, if Tenant is not then occupying at least seventy-five percent
(75%) of the Premises, or if Tenant has a net worth that is less than
ninety-five percent (95%) of Tenant's net worth as of the date hereof. For
purposes hereof, if a 4 Omni Way Offer Notice is delivered for less than all of
the 4 Omni Way Offer Space but such notice provides for an expansion, right of
first refusal, or other preferential right to lease some of the remaining
portion of the 4 Omni Way Offer Space, then such remaining portion of the 4 Omni
Way Offer Space shall thereafter be excluded from the provisions of this
Exhibit.
Tenant's rights under this Exhibit shall terminate if (a) this Lease or
Tenant's right to possession of the Premises is terminated, (b) Tenant assigns
any of its interest in this Lease or sublets more than twenty-five percent (25%)
of the Premises, or (c) the initial Term expires.
Notwithstanding any provisions of this Lease to the contrary, if the
fee title to the 4 Omni Way Offer Space is held by an entity other than Landlord
or any Affiliate of Landlord and such entity fails to comply with the provisions
of this Exhibit K, Tenant shall have no recourse, rights or remedies against
Landlord if such entity fails to comply with the provisions of this Exhibit K
and Tenant shall continue to comply with the provisions of this Lease.
DEPICTION OF 4 OMNI WAY OFFER SPACE
(4 Omni Way, Chelmsford, MA)
Lot 2B as shown on that certain plan entitled "Plan of Land of Billerica Road
Site, Chelmsford, MA", which plan is recorded with the Middlesex North District
Registry of Deeds in Plan Book 143 as Plan 143.
vi
LIST OF DEFINED TERMS
Page
Additional Rent.............................................................2
Affiliate 25
Affiliate of Tenant.........................................................13
Affiliated Buildings........................................................19
AS-IS D-1
Base Building Electrical Capacity............................................8
Basic Rent 1
Building 1
Building Holidays 7
Building's Structure.........................................................8
Casualty 17
Commencement Date 1
Construction Allowance.....................................................D-2
Damage Notice 17
Environmental Reports...................................................26, 30
Event of Default 18
Fair Market Rental Value...................................................G-1
GAAP 2
Hazardous Materials.........................................................25
including 25
Interest Rate 5
Landlord 1
Landlord's Mortgagee........................................................15
Law 25
Laws 25
Lease 1
Lease Year 1
Letter of Credit 5
Loss 14
Mortgage 15
Offer Notice K-1
Offer Space K-1
Operating Costs 2
Operating Costs and Tax Statement............................................4
Parking Area E-1
Permitted Use 12
Premises 1
Rent 2
Rooftop Equipment 27
Security Deposit 5
Taking......................................................................16
Taxes 3
Tenant 1, 19
Tenant Party 25
Term 1
Total Construction Costs...................................................D-2
Transfer 12
Work D-1
Working Drawings D-1