Exhibit 10.24
CONTENTS
1. REFERENCE DATA.................................................... 1
2. DESCRIPTION OF PREMISES........................................... 1
2.1 Demised Premises............................................ 1
2.2 Appurtenant Rights.......................................... 1
2.3 Exclusions and Reservations................................. 1
3. TERM OF LEASE..................................................... 1
3.1 Definitions................................................. 1
3.2 Habendum ................................................... 2
3.3 Declaration Fixing Term Commencement Date................... 2
4. READINESS FOR OCCUPANCY - ENTRY BY TENANT PRIOR TO TERM
COMMENCEMENT DATE................................................. 2
4.1 Completion Date - Delays.................................... 2
4.2 When Premises Deemed Ready.................................. 2
4.3 Intentionally Deleted....................................... 3
4.4 Preparation of Premises..................................... 3
4.5 Quality and Cost of Materials............................... 4
4.6 Tenant's Delay - Additional Costs........................... 4
4.7 Entry by Tenant Prior to Term Commencement Date............. 4
4.8 Conclusiveness of Landlord's Performance.................... 4
4.9 Tenant Payments of Construction Cost........................ 4
5. USE OF PREMISES................................................... 5
5.1 Permitted Use............................................... 5
5.2 Prohibited Uses............................................. 5
5.3 Licenses and Permits........................................ 5
6. RENT.............................................................. 5
7. RENTABLE AREA - ADJUSTMENT OF RENT................................ 6
8. SERVICES FURNISHED BY LANDLORD.................................... 6
8.1 Electric Current............................................ 8
8.2 Water....................................................... 8
8.3 Elevators, Heat, Cleaning................................... 8
8.4 Air Conditioning............................................ 8
8.5 Additional Heat, Cleaning and Air Conditioning Services..... 9
8.6 Additional Air Conditioning Equipment....................... 9
8.7 Repairs..................................................... 9
8.8 Interruption or Curtailment of Services..................... 9
8.9 Energy Conservation......................................... 9
8.10 Miscellaneous............................................... 10
9. ESCALATION........................................................ 10
9.1 Definitions................................................. 10
9.2 Tax Excess.................................................. 12
9.3 Operating Expense Excess.................................... 12
9.4 Part Years.................................................. 13
9.5 Effect of Taking............................................ 13
9.6 Disputes, etc............................................... 13
10. CHANGES OR ALTERATIONS BY LANDLORD................................ 13
11. FIXTURES, EQUIPMENT AND IMPROVEMENTS - REMOVAL BY TENANT.......... 14
12. ALTERATIONS AND IMPROVEMENTS BY TENANT............................ 14
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13. TENANT'S CONTRACTORS - MECHANIC'S AND OTHER LIENS - STANDARD OF
TENANT'S PERFORMANCE - COMPLIANCE WITH LAWS....................... 15
14. REPAIRS BY TENANT - FLOOR LOAD.................................... 15
14.1 Repairs by Tenant........................................... 15
14.2 Floor Load - Heavy Machinery................................ 16
15. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION........... 16
15.1 General Liability Insurance................................. 16
15.2 Certificates of Insurance................................... 16
15.3 General..................................................... 17
15.4 Property of Tenant.......................................... 17
15.5 Bursting of Pipes, etc...................................... 17
15.6 Repairs and Alterations - No Diminution of Rental Value..... 18
16. ASSIGNMENT, MORTGAGING AND SUBLETTING............................. 18
17. MISCELLANEOUS COVENANTS........................................... 19
17.1 Rules and Regulations....................................... 19
17.2 Access to Premises - Shoring................................ 19
17.3 Accidents to Sanitary and Other Systems..................... 20
17.4 Signs, Blinds and Drapes.................................... 20
17.5 Estoppel Certificate........................................ 20
17.6 Prohibited Materials and Property........................... 21
17.7 Requirements of Law - Fines and Penalties................... 21
17.8 Tenant's Acts - Effect on Insurance......................... 21
17.9 Miscellaneous............................................... 22
18. DAMAGE BY FIRE, ETC............................................... 22
19. WAIVER OF SUBROGATION............................................. 23
20. CONDEMNATION - EMINENT DOMAIN..................................... 24
21. DEFAULT........................................................... 24
21.1 Conditions of Limitation - Re-entry - Termination........... 24
21.2 Damages - Assignment for Benefit of Creditors............... 25
21.3 Damages - Termination....................................... 26
21.4 Fees and Expenses........................................... 27
21.5 Waiver of Redemption........................................ 27
21.6 Landlord's Remedies Not Exclusive........................... 27
21.7 Grace Period................................................ 27
22. END OF TERM - ABANDONED PROPERTY.................................. 28
23. SUBORDINATION..................................................... 29
24. QUIET ENJOYMENT................................................... 30
25. ENTIRE AGREEMENT - WAIVER - SURRENDER............................. 31
25.1 Entire Agreement............................................ 31
25.2 Waiver by Landlord.......................................... 31
25.3 Surrender................................................... 31
26. INABILITY TO PERFORM - EXCULPATORY CLAUSE......................... 31
27. BILLS AND NOTICES................................................. 32
28. PARTIES BOUND - SEIZIN OF TITLE................................... 33
29. MISCELLANEOUS..................................................... 33
29.1 Separability................................................ 33
29.2 Captions, etc............................................... 33
29.3 Broker...................................................... 33
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29.4 Intentionally Deleted....................................... 33
29.5 Arbitration................................................. 34
29.6 Governing Law............................................... 34
29.7 Assignment of Rents......................................... 34
29.8 Representation of Authority................................. 34
29.9 Expenses Incurred by Landlord Upon Tenant Requests.......... 34
29.10 Survival.................................................... 34
EXHIBITS
Exhibit 3 Building Standard Items................................. 36
Exhibit 4 Building Services....................................... 40
Exhibit 5 Rentable Area........................................... 43
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EXHIBIT 1, SHEET 1
Building No. 4, Wellesley Office Park
40 William Street, Wellesley, Massachusetts 02181
(the "Building")
Execution Date: June 19, 1995
Tenant: Silicon Valley Bank, a California-chartered bank, with its
principal place of business at 3000 Lakeside Drive, Santa
Clara, CA 95054 and with a loan production office located at
Wellesley Office Park, 45 William Street, Suite 370,
Wellesley, MA 02181, doing business under the name "Silicon
Valley East" (name)
Landlord: Wellesley Holding, L.P., a Delaware limited partnership (the
sole general partner of which is Beacon Properties, L.P., a
Delaware limited partnership, the sole general partner of
which is Beacon Properties Corporation, a Maryland
corporation.) Mailing Address: 50 Rowes Wharf, Boston,
Massachusetts 02110, Attention: General Partner
Building: The Building in Wellesley Office Park in the Town of
Wellesley, Norfolk County, Commonwealth of Massachusetts and
known as and numbered 40 William Street (Building Four), on
the lot shown on a plan of land in Wellesley dated January 31,
1969, prepared for Schoenfeld Associates, Inc. by Alphonse L.
Savignac, Registered Land Surveyor, recorded with the Norfolk
Registry of Deeds in Plan Book 226, as Plan 75 of 1969.
Art. 2 Premises: An area on the third (3rd) floor of the Building,
substantially as shown on Lease Plan, Exhibit 2, Sheet 1
Art. 3.1 Specified Commencement Date: September 1, 1995
Art. 3.2 Termination Date: Six (6) years after the Term Commencement Date
Art. 4.3 Final Plans Date: Not applicable
Art. 5 Use of Premises: General business offices
Art. 6 Yearly Rent:
Lease Year(1) Yearly Rent Monthly Payment
------------- ----------- ---------------
1 $200,976.00 $16,748.00
2 $209,349.96 $17,445.83
3-6 $217,724.04 $18,143.67
Art. 7 Total Rentable Area: 8,374 square feet
- -----------------
(1)For the purposes hereof, "Lease Year" shall be defined as any
twelve-(12)-month period commencing as of the Term Commencement
Date or as of any anniversary of the Term Commencement Date.
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EXHIBIT 1, SHEET 2
Building No. 4, Wellesley Office Park
40 William Street, Wellesley, Massachusetts 02181
(the "Building")
Art. 8. Electric current will be furnished by Landlord to Tenant and paid
for by Tenant in accordance with Article 8.1(b) of the Lease.
Electric Rate: $.091 per kilowatt hour.
Base Electric Cost: $.728 per square foot of Total Rentable Area
per year.
Initial Estimated Monthly Electric Payment: $508.02
Art. 9 Operating and Tax Escalation:
Operating Costs in the Base Year: The actual amount of
Operating Costs for
calendar year 1995
Tax Base: The actual amount of Taxes for fiscal/tax year 1995
(i.e., July 1, 1994 - June 30, 1995)
Tenant's Proportionate Share: 11.65%
Art. 29.3 Co-Brokers: Twigg Associates and Beacon Management Company
Art. 29.5 Arbitration: Massachusetts; Superior Court
Exhibit Dates: Lease Plan, Exhibit 2, Sheets 1 and 2 dated June 19,
1995
LANDLORD: TENANT:
WELLESLEY HOLDING, L.P. SILICON VALLEY BANK
By: Beacon Properties, L.P.,
General Partner
By: Beacon Properties Corporation,
General Partner
By: _____________________ By:_________________________
Lionel P. Fortin, (Name) (Title)
Senior Vice President Hereunto Duly Authorized
Date Signed: ___________________ Date Signed:_____________________
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THIS INDENTURE OF LEASE made and entered into on the Execution Date as
stated in Exhibit 1 and between the Landlord and the Tenant named in Exhibit 1.
Landlord does hereby demise and lease to Tenant, and Tenant does hereby hire
and take from Landlord, the premises hereinafter mentioned and described
(hereinafter referred to as "premises"), upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease for the term
hereinafter stated:
1. REFERENCE DATA
Each reference in this Lease to any of the terms and titles contained in
any Exhibit attached to this Lease shall be deemed and construed to incorporate
the data stated under that term or title in such Exhibit.
2. DESCRIPTION OF DEMISED PREMISES
2.1 DEMISED PREMISES. The premises are that portion of the Building as
described in Exhibit 1 (as the same may from time to time be constituted after
changes therein, additions thereto and eliminations therefrom pursuant to
rights of Landlord hereinafter reserved) and is hereinafter referred to as
"Building", substantially as shown hatched or outlined on the Lease Plan
(Exhibit 2) hereto attached and incorporated by reference as a part hereof.
Landlord reserves the right, at its own cost and expense, to require Tenant,
upon not less than thirty (30) days' notice, to relocate its premises elsewhere
in the Building or complex of which the Building is a part, to an area of
substantially equivalent size, construction and finish as designated by
Landlord. Notwithstanding anything to the contrary herein contained, Landlord
shall be responsible for all costs incurred by Tenant in relocating to such
substanitally equivalent area (including, without limitation, the costs of
relocating Tenant's personal property and recabling the premises and the costs
of replacing Tenant's stationery, if necessary. Any dispute between the parties
as to whether the area designated by Landlord is "substantially equivalent"
shall be submitted to arbitration pursuant to Article 29.5 hereof.
2.2 APPURTENANT RIGHTS. Tenant shall have, as appurtenant to the
premises, rights to use in common, with others entitled thereto, subject to
reasonable rules from time to time made by Landlord of which Tenant is given
notice; (a) the common lobbies, hallways, stairways and elevators of the
Building, serving the premises in common with others, (b) common walkways
necessary for access to the Building, and (c) if the premises include less than
the entire rentable area of any floor, the common toilets and other common
facilities of such floor; and no other appurtenant rights or easements.
2.3 EXCLUSIONS AND RESERVATIONS. All the perimeter walls of the premises
except the inner surfaces thereof, any balconies (except to the extent same are
shown as part of the premises on the Lease Plan (Exhibit 2)), terraces or roofs
adjacent to the premises, and any space in or adjacent to the premises used for
shafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms,
ducts, electric or other utilities, sinks or other Building facilities, and the
use thereof, as well as the right of access through the premises for the
purposes of operation, maintenance, decoration and repair, are expressly
excluded from the premises and reserved to Landlord.
3. TERM OF LEASE
3.1 DEFINITIONS. As used in this Lease the words and terms which follow
mean and include the following:
(a) "Specified Commencement Date" - The date (as stated in Exhibit 1)
on which it is estimated that the premises will be ready for Tenant's occupancy
for its use as stated in Exhibit 1.
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(b) "Term Commencement Date" - If the "Term Commencement Date" is a
date certain agreed upon by the parties at the time of the execution of this
Lease, such date shall be inserted in Exhibit 1; otherwise, the "Term
Commencement Date" is the date on which the premises are ready for Tenant's
occupancy (as defined in Article 4.2) for use as set forth in Exhibit 1. If the
premises are not ready for such occupancy but if, pursuant to permission
therefor duly given by Landlord, Tenant takes possession of the whole or any
part of the premises for use as set forth in Exhibit 1, "Term Commencement
Date" shall be the date on which Tenant takes such possession.
3.2 HABENDUM. TO HAVE AND TO HOLD the premises for a term of years
commencing on the Term Commencement Date and ending on the Termination Date as
stated in Exhibit 1 or on such earlier date upon which said term may expire or
be terminated pursuant to any of the conditions of limitation or other
provisions of this Lease or pursuant to law (which date for the termination of
the terms hereof will hereafter be called "Termination Date"). Notwithstanding
the foregoing, if the Termination Date as stated in Exhibit 1 shall fall on
other than the last day of a calendar month, said Termination Date shall be
deemed to be the last day of the calendar month in which said Termination Date
occurs.
3.3 DECLARATION FIXING TERM COMMENCEMENT DATE. As soon as may be after
the execution date hereof, each of the parties hereto agrees, upon demand of
the other party to join in the execution, in recordable form, of a statutory
notice, memorandum, etc. of lease and/or written declaration in which shall be
stated such Term Commencement Date and (if need be) the Termination Date. If
this Lease is terminated before the term expires, then upon Landlord's request
the parties shall execute, deliver and record an instrument acknowledging such
fact and the date of termination of this Lease, and Tenant hereby appoints
Landlord its attorney-in-fact in its name and behalf to execute such instrument
if Tenant shall fail to execute and deliver such instrument after Landlord's
request therefor within ten (10) days.
4. READINESS FOR OCCUPANCY - ENTRY BY TENANT PRIOR TO TERM COMMENCEMENT DATE
4.1 COMPLETION DATE - DELAYS. Subject to delay by causes beyond the
reasonable control of Landlord or caused by the action or inaction of Tenant,
Landlord shall use reasonable speed and diligence in the construction of the
Building and to have the premises ready for Tenant's occupancy on the Specified
Commencement Date. The failure to have the premises ready for Tenant's
occupancy on the Specified Commencement Date shall in no way affect the
validity of this Lease or the obligations of Tenant hereunder nor shall the
same be construed in any way to extend the term of this Lease. If the premises
are not ready for Tenant's occupancy within the meaning of Article 4.2 hereof
on the Specified Commencement Date, Tenant shall not have any claim against
Landlord, and Landlord shall have no liability to Tenant, by reason thereof.
4.2 WHEN PREMISES DEEMED READY.
A. The premises shall be conclusively deemed ready for Tenant's
occupancy as soon as Landlord's Work, as defined in Paragraph B of this Article
4.2, has been substantially completed by Landlord insofar as is practicable in
view of delays or defaults, if any, of Tenant or its contractors, as
hereinafter specified, and the elevator, plumbing, air conditioning and
electric facilities are initially substantially available to Tenant, in
accordance with the obligations assumed by Landlord hereunder. Such facilities
shall not be deemed to be unavailable if only minor or insubstantial details of
construction, decoration or mechanical adjustments remain to be done. The
premises shall not be deemed to be unready for Tenant's occupancy or incomplete
if only minor or insubstantial details of construction, decoration or
mechanical adjustments remain to be done in the premises or any part thereof,
or if the delay in the availability of the
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premises for occupancy is (i) due to special work, changes, alterations or
additions required or made by Tenant in the layout or finish of the premises or
any part thereof, (ii) caused in whole or in part by Tenant through the delay
of Tenant in submitting any plans and/or specifications, supplying information,
approving plans, specifications or estimates, giving authorizations or
otherwise or (iii) caused in whole or in part by delay and/or default on the
part of Tenant or its contractors including, without limitation, the utility
companies and other entities furnishing communications, data processing or
other service or equipment. If the premises are deemed ready for Tenant's
occupancy, pursuant to the foregoing, (and the term shall have commenced by
reason thereof), but the premises are not in fact actually ready for Tenant's
occupancy, Tenant shall not (except with Landlord's consent) be entitled to
take possession of the premises for use as set forth in Exhibit 1 until the
premises are in fact actually ready for such occupancy. Landlord's architect's
certificate of substantial completion, as hereinabove stated, given in good
faith, or of any other facts pertinent to this Article 4.2 shall be deemed
conclusive of the statements therein contained and binding upon Tenant. Any of
Landlord's work in the premises not fully completed on the Term Commencement
Date shall thereafter be so completed with reasonable diligence by Landlord.
B. Landlord shall, at Landlord's cost, construct the premises
substantially in accordance with the following plans dated June 16, 1995,
prepared by Beacon Design Corporation ("Landlord's Work"):
1. A-1 General Notes and Specifications;
2. A-2 Demolition Plan;
3. A-3 Construction Plan;
4. A-4 Finish Plan;
5. A-5 Details;
6. A-6 Elevations, Details;
7. A-7 Elevations, Details;
8. AE-1 Reflected Ceiling Plan;
9. AE-2 Electric/Telephone Plan;
10. M-1 HVAC Plan;
11. E-1 Electrical Notes, Details;
12. E-2 Power Plan;
13. E-3 Lighting Plan; and
14. P-1 Plumbing Plan.
C. Landlord shall, at Landlord's cost, engage movers to relocate
Tenant's furniture and personal property from Tenant's existing premises in 45
William Street, Wellesley Office Park to the premises, provided however, that
Tenant shall, at Tenant's cost, re-install Tenant's telephone and computer
systems in the premises.
4.3 INTENTIONALLY DELETED.
4.4 PREPARATION OF PREMISES.
(a) By Landlord. Except as is otherwise herein provided or as may
be otherwise approved by the Landlord, all work necessary to prepare the
premises for Tenant's occupancy, including work to be performed at Tenant's
expense, shall be performed by contractors employed by Landlord.
(b) By Tenant. Subject always to the provisions of Articles 4.2 and
4.3, if other than building standard categories of work are to be performed in
preparing the premises for Tenant's occupancy by contractors other than those
employed by Landlord, Landlord will give Tenant reasonable advance notice of
the date on which the premises will be ready for such other contractors and a
reasonable time will be allowed from such date for doing the work to be
performed by such other contractors.
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(c) If any work, including but not by way of limitation,
installation of built-in equipment by the manufacturer or distributor thereof,
shall be performed by contractors not employed by Landlord, Tenant shall take
necessary reasonable measures to the end that such contractor shall cooperate
in all ways with Landlord's contractors to avoid any delay to the work being
performed by Landlord's contractors or conflict in any other way with the
performance of such work.
4.5 QUALITY AND COST OF MATERIALS. Any construction or finish of
previously constructed premises, whether by Landlord or Tenant, shall equal or
exceed the specifications and quantities provided in Exhibit 3. Except for
Landlord's Work, Tenant shall bear all other costs of preparing the premises
for its occupancy in accordance with the final plans. Landlord shall have no
liability or responsibility for any claim, injury or damage alleged to have
been caused by the particular materials, whether building standard or
non-building standard, selected by Tenant in the construction or other
preparation of the premises for Tenant's occupancy including, without
limitation, furniture and carpeting.
4.6 TENANTS DELAY - ADDITIONAL COSTS. If Tenant fails or omits to make
timely submission to Landlord of pertinent information, or delays in submitting
any other plans or specifications, or in supplying information, or in approving
plans, specifications or estimates, or in giving authorizations or fails to
comply with Section 4.4(c) hereof, or otherwise fails to honor or perform its
obligations under this Lease, any additional cost to Landlord in connection
with the completion of the premises in accordance with the terms of this Lease
and Exhibit 3 shall be promptly paid by Tenant to Landlord if such additional
cost is in whole or in part the result of such failure, omission or delay of
Tenant. For the purposes of the next preceding sentence, the expression
"additional cost to Landlord" shall mean the cost over and above such cost as
would have been the aggregate cost to Landlord of completing the premises in
accordance with the terms of this Lease and Exhibit 3 had there been no such
failure, omission or delay. Nothing contained in this Article 4.6 shall limit
or qualify or prejudice any other covenants, agreements, terms, provisions and
conditions contained in this Lease, including, but not limited to Article 4.2.
4.7 ENTRY BY TENANT PRIOR TO TERM COMMENCEMENT DATE. With Landlord's
prior written consent, which shall not be unreasonably withheld, Tenant shall
have the right to enter the premises prior to the Term Commencement Date,
during normal business hours and without payment of rent, to perform such work
or decoration as is to be performed by, or under the direction or control of,
Tenant and as is otherwise in compliance with the terms of this Lease. Such
right of entry shall be deemed a license from Landlord to Tenant, and any entry
thereunder shall be at the risk of Tenant.
4.8 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Tenant shall be
conclusively deemed to have agreed that Landlord has performed all of its
obligations under this Article 4 unless not later than the end of the second
calendar month next beginning after the Term Commencement Date Tenant shall
give Landlord written notice specifying the respects in which Landlord has not
performed any such obligation.
4.9 TENANT PAYMENTS OF CONSTRUCTION COST. Landlord shall have the same
rights and remedies which Landlord has upon the nonpayment of Yearly Rent and
other charges due under this Lease for nonpayment of any amounts which Tenant
is required to pay to Landlord or Landlord's contractor in connection with the
construction and initial preparation of the premises (including, without
limitation, any amounts which Tenant is required to pay in accordance with
Articles 4.5 and 4.6 hereof) or in connection with any construction in the
premises performed for Tenant by Landlord, Landlord's contractor or any other
person, firm or entity after the Term Commencement Date.
5. USE OF PREMISES
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5.1 PERMITTED USE. Tenant shall continuously during the term hereof
occupy and use the premises only for the purposes as stated in Exhibit 1 and
for no other purposes. Service and utility areas (whether or not a part of the
premises) shall be used only for the particular purpose for which they were
designed. Without limiting the generality of the foregoing, Tenant agrees that
it shall not use the premises or any part thereof, or permit the premises or
any part thereof to be used for the preparation or dispensing of food, whether
by vending machines or otherwise. Notwithstanding the foregoing, but subject to
the other terms and provisions of this Lease, Tenant may, with Landlord's prior
written consent, which consent shall not be unreasonably withheld, install at
its own cost and expense so-called hot-cold water fountains, coffee makers and
so-called Dwyer refrigerator-sink-stove combinations for the preparation of
beverages and foods, provided that no cooking, frying, etc., are carried on in
the premises to such extent as requires special exhaust venting, Tenant hereby
acknowledging that the Building is not engineered to provide any such special
venting.
5.2 PROHIBITED USES. Notwithstanding any other provision of this Lease,
Tenant shall not use, or suffer or permit the use or occupancy of, or suffer or
permit anything to be done in or anything to be brought into or kept in or
about the premises or the Building or any part thereof (including, without
limitation, any materials used in the construction or other preparation of the
premises and furniture and carpeting): (i) which would violate any of the
covenants, agreements, terms, provisions and conditions of this Lease or
otherwise applicable to or binding upon the premises; (ii) for any unlawful
purposes or in any unlawful manner; (iii) which, in the reasonable judgment of
Landlord shall in any way (a) impair the appearance or reputation of the
Building; or (b) impair, interfere with or otherwise diminish the quality of
any of the Building services or the proper and economic heating, cleaning, air
conditioning or other servicing of the Building; or premises, or with the use
or occupancy of any of the other areas of the Building, or occasion discomfort,
inconvenience or annoyance, or injury or damage to any occupants of the
premises or other tenants or occupants of the Building; or (iv) which is
inconsistent with the maintenance of the Building as an office building of the
first class in the quality of its maintenance, use, or occupancy. Tenant shall
not install or use any electrical or other equipment of any kind which, in the
reasonable judgment of Landlord, might cause any such impairment, interference,
discomfort, inconvenience or annoyance.
5.3 LICENSES AND PERMITS. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, and if the
failure to secure such license or permit would in any way affect Landlord, the
premises, the Building or Tenant's ability to perform any of its obligations
under this Lease, Tenant, at Tenant's expense, shall duly procure and
thereafter maintain such license and submit the same to inspection by Landlord.
Tenant, at Tenant's expense, shall at all times comply with the terms and
conditions of each such license or permit. Tenant shall furnish all data and
information to governmental authorities and Landlord as required in accordance
with legal, regulatory, licensing or other similar requirements as they relate
to Tenant's use or occupancy of the premises or the Building.
6. RENT
During the term of this Lease the Yearly Rent and other charges, at the
rate stated in Exhibit 1, shall be payable by Tenant to Landlord by monthly
payments, as stated in Exhibit 1, in advance and without demand on the first
day of each month for and in respect of such month. The rent and other charges
reserved and covenanted to be paid under this Lease shall commence on the Term
Commencement Date. Notwithstanding the provisions of the next preceding
sentence, Tenant shall pay the first monthly installment of rent on the
execution of this Lease. If, by reason of any provisions of this Lease, the
rent reserved hereunder shall commence or terminate on any day other than
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the first day of a calendar month, the rent for such calendar month shall be
prorated. The rent shall be payable to Landlord or, if Landlord shall so direct
in writing, to Landlord's agent or nominee, in lawful money of the United
States which shall be legal tender for payment of all debts and dues, public
and private, at the time of payment, at the office of the Landlord or such
place as Landlord may designate, and the rent and other charges in all
circumstances shall be payable without any setoff or deduction whatsoever.
Rental and any other sums due hereunder not paid within ten (10) days after the
date due shall bear interest for each month or fraction thereof from the due
date until paid computed at the annual rate of two percentage points over the
so-called prime rate then currently from time to time charged to its most
favored corporate customers by the largest national bank (N.A.) located in the
city in which the Building is located, or at any applicable lesser maximum
legally permissible rate for debts of this nature.
7. RENTABLE AREA - ADJUSTMENT OF RENT
Total Rentable Area and Net Rentable Area of the premises shall be
determined in accordance with Exhibit 5.
8. SERVICES FURNISHED BY LANDLORD
8.1 ELECTRIC CURRENT.
(a) As stated in Exhibit 1, Landlord will furnish to Tenant, as an
incident of this Lease, electric current for the operation of lighting
fixtures, the 120-volt electrical outlets initially installed in the premises
and such other installations and facilities as stated in Exhibit 3. The term
"Base Electric Cost" as used in this Lease, shall be defined as the composite,
effective cost per annum, as of the Execution Date, of electric current per
square foot of Building Total Rentable Area for those portions of the Building
as to which Landlord is providing electric current. "Electric Rate," as used in
this Lease, shall be defined as the composite effective rate per kilowatt-hour
taking into account the base utility rate, fuel adjustment factor, premium
charges or credits for hours of use, and any other charges which Landlord is
required to pay in connection with furnishing electricity to the Building.
(b) The parties acknowledge that the consumption of electricity in
the premises (other than electricity consumed for the purposes of providing the
services which Landlord is required to provide hereunder) will be measured by a
separate submeter. Tenant shall reimburse Landlord for the entire cost of such
electric current as follows:
1. Commencing as of the Term Commencement Date and continuing
until the procedures set forth in Paragraph 2 of this
Article 8.1(b) are effected, Tenant shall pay to Landlord at
the same time and in the same manner that Tenant pays its
monthly payments of Yearly Rent hereunder, estimated monthly
payments on account of Tenant's obligation to reimburse
Landlord for electricity consumed in the premises. Said
estimated monthly payments are based upon the Base Electric
Cost and Electric Rate set forth on Exhibit 1. The Initial
Estimated Monthly Electric Payment is set forth on Exhibit 1.
2. Periodically (i.e. monthly) after the Term Commencement
Date, Landlord shall determine the actual cost of
electricity consumed by Tenant in the premises (i.e. by
reading Tenant's sub-meter and by applying the actual
Electric Rate(s) applicable to the preceding period). If the
total of Tenant's estimated monthly payments on account of
such period
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is less than the actual cost of electricity consumed in the
premises during such period, Tenant shall pay the difference
to Landlord when billed therefor. If the total of Tenant's
estimated monthly payments on account of such period is
greater than the actual cost of electricity consumed in the
premises during such period, Tenant may credit the difference
against its next installment of rental or other charges due
hereunder.
3. After such adjustment, as set forth in Paragraph 2 above,
the amount of Tenant's obligation to reimburse Landlord for
electricity in the premises shall be adjusted based upon the
actual cost of electricity consumed during the immediately
preceding period.
(c) If Landlord is furnishing Tenant electric current hereunder,
Landlord, at any time, at its option and upon not less than thirty (30) days'
prior written notice to Tenant, may discontinue such furnishing of electric
current to the premises; and in such case Tenant shall contract with the
company supplying electric current for the purchase and obtaining by Tenant of
electric current directly from such company. In the event Tenant itself
contracts for electricity with the supplier, either initially or pursuant to
Landlord's option as above stated, Landlord shall (i) permit its risers,
conduits and feeders to the extent available, suitable and safely capable, to
be used for the purpose of enabling Tenant to purchase and obtain electric
current directly from such company, (ii) without cost or charge to Tenant, make
such alterations and additions to the electrical equipment and/or appliances in
the Building as such company shall specify for the purpose of enabling Tenant
to purchase and obtain electric current directly from such company, and (iii)
at Landlord's expense, furnish and install in or near the premises any
necessary metering equipment used in connection with measuring Tenant's
consumption of electric current and Tenant, at Tenant's expense, shall maintain
and keep in repair such metering equipment.
(d) Whether or not Landlord is furnishing electric current to
Tenant, if Tenant shall require electric current for use in the premises in
excess of such reasonable quantity to be furnished for such use as hereinabove
provided and if (i) in Landlord's reasonable judgment, Landlord's facilities
are inadequate for such excess requirements or (ii) such excess use shall
result in an additional burden on the Building air conditioning system and
additional cost to Landlord on account thereof then, as the case may be, (x)
Landlord upon written request and at the sole cost and expense of Tenant, will
furnish and install such additional wire, conduits, feeders, switchboards and
appurtenances as reasonably may be required to supply such additional
requirements of Tenant if current therefor be available to Landlord, provided
that the same shall be permitted by applicable laws and insurance regulations
and shall not cause damage to the Building or the premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations or repairs or interfere with or disturb other tenants or occupants
of the Building or (y) Tenant shall reimburse Landlord for such additional
cost, as aforesaid.
(e) Landlord, at Tenant's expense and upon Tenant's request, shall
purchase and install all replacement lamps of types generally commercially
available (including, but not limited to, incandescent and fluorescent) used in
the premises.
(f) Landlord shall not in any way be liable or responsible to Tenant
for any loss, damage or expense which Tenant may sustain or incur if the
quantity, character, or supply of electrical energy is changed or is no longer
available or suitable for Tenant's requirements.
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(g) Tenant agrees that it will not make any material alteration or
material addition to the electrical equipment and/or appliances in the premises
without the prior written consent of Landlord in each instance first obtained,
which consent will not be unreasonably withheld, and will promptly advise
Landlord of any other alteration or addition to such electrical equipment
and/or appliances.
8.2 WATER. Landlord shall furnish hot and cold water for ordinary
premises, cleaning, toilet, lavatory and drinking purposes. If Tenant requires,
uses or consumes water for any purpose other than for the aforementioned
purposes, Landlord may (i) assess a reasonable charge for the additional water
so used or consumed by Tenant or (ii) install a water meter and thereby measure
Tenant's water consumption for all purposes. In the latter event, Landlord
shall pay the cost of the meter and the cost of installation thereof and shall
keep said meter and installation equipment in good working order and repair.
Tenant agrees to pay for water consumed, as shown on said meter, together with
the sewer charge based on said meter charges, as and when bills are rendered,
and on default in making such payment Landlord may pay such charges and collect
the same from Tenant. All piping and other equipment and facilities for use of
water outside the building core will be installed and maintained by Landlord at
Tenant's sole cost and expense.
8.3 ELEVATORS, HEAT, CLEANING.
(a) Landlord at its expense shall: (i) provide necessary elevator
facilities (which may be manually or automatically operated, either or both, as
Landlord may from time to time elect) on Mondays through Fridays, excepting
legal holidays, from 8:00 a.m. to 6:00 p.m. and on Saturdays, excepting legal
holidays, from 8:00 a.m. to 1:00 p.m. (called "business days") and have one
elevator in operation available for Tenant's use, non-exclusively, together
with others having business in the Building, at all other times; (ii) furnish
heat (substantially equivalent to that being furnished in comparably aged
similarly equipped office buildings in the same city) to the premises during
the normal heating season on business days; and (iii) cause the office areas of
the premises to be cleaned on business days (except on Saturdays) provided the
same are kept in order by Tenant. Either Exhibit 4 (if annexed hereto) or,
otherwise, the cleaning standards generally prevailing in first-class office
buildings in the city or town where the Building is located, shall represent
substantially the extent and scope of the cleaning by Landlord referred to in
this Article 8.3.
(b) The parties agree and acknowledge that, despite reasonable
precautions in selecting cleaning and maintenance contractors and personnel,
any property or equipment in the premises of a delicate, fragile or vulnerable
nature may nevertheless be damaged in the course of cleaning and maintenance
services being performed. Accordingly, Tenant shall take reasonable protective
precautions with such property and equipment.
8.4 AIR CONDITIONING. Landlord shall through the air conditioning
equipment of the Building furnish to and distribute in the premises air
conditioning as normal seasonal changes may require on business days during the
hours as aforesaid in Article 8.3 when air conditioning may reasonably be
required for the comfortable occupancy of the premises by Tenant. Tenant agrees
to lower and close the blinds or drapes when necessary because of the sun's
position, whenever the air conditioning system is in operation, and to
cooperate fully with Landlord with regard to, and to abide by all the
reasonable regulations and requirements which Landlord may prescribe for the
proper functioning and protection of the air conditioning system. The air
conditioning system referred to in this Article 8.4 shall be capable of
providing 780 F dry bulb and 50% relative humidity with outside conditions of
920 F dry bulb and 740 F wet bulb. The foregoing design conditions shall be
based upon an occupancy within each separately partitioned area in the premises
of not more than one person per 100 square feet of Net Rentable Area
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and upon a combined lighting and standard electrical load not to exceed 2 1/2
watts per square foot of Net Rentable Area.
8.5 ADDITIONAL HEAT, CLEANING AND AIR CONDITIONING SERVICES.
(a) Landlord will use reasonable efforts upon reasonable advance
written notice from Tenant of its requirements in that regard, to furnish
additional heat, cleaning or air conditioning services to the premises on days
and at times other than as above provided.
(b) Tenant will pay to Landlord a reasonable charge (i) for any such
additional heat, cleaning or air conditioning service required by Tenant, (ii)
for any extra cleaning of the premises required because of the carelessness or
indifference of Tenant or because of the nature of Tenant's business, and (iii)
for any cleaning done at the request of Tenant of any portions of the premises
which may be used for storage, shipping room or other non-office purposes.
Landlord represents to Tenant that, as of the Execution Date of the Lease, the
charge for such after-hours HVAC services to Tenant is Forty and 00/100 Dollars
($40.00) per hour. Landlord reserves the right to charge such charges from time
to time during the term of the Lease. If the cost to Landlord for cleaning the
premises shall be increased due to the installation in the premises, at
Tenant's request, of any materials or finish other than those which are
building standard, Tenant shall pay to Landlord an amount equal to such
increase in cost.
8.6 ADDITIONAL AIR CONDITIONING EQUIPMENT. In the event Tenant requires
additional air conditioning for business machines, meeting rooms or other
special purposes, or because of occupancy or excess electrical loads, any
additional air conditioning units, chillers, condensers, compressors, ducts,
piping and other equipment, such additional air conditioning equipment will be
installed and maintained by Landlord at Tenant's sole cost and expense, but
only if, in Landlord's reasonable judgment, the same will not cause damage or
injury to the Building or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants; and Tenant shall reimburse Landlord in such an amount as
will compensate it for the cost incurred by it in operating such additional air
conditioning equipment.
8.7 REPAIRS. Except as otherwise provided in Articles 18 and 20, and
subject to Tenant's obligations in Article 14, Landlord shall keep and maintain
the roof, exterior walls, structural floor slabs, columns, elevators, public
stairways and corridors, lavatories, equipment (including, without limitation,
sanitary, electrical, heating, air conditioning, or other systems) and other
common facilities of the Building in good condition and repair.
8.8 INTERRUPTION OR CURTAILMENT OF SERVICES. When necessary by reason of
accident or emergency, or for repairs, alterations, replacements or
improvements which in the reasonable judgment of Landlord are desirable or
necessary to be made, or of difficulty or inability in securing supplies or
labor, or of strikes, or of any other cause beyond the reasonable control of
Landlord, whether such other cause be similar or dissimilar to those
hereinabove specifically mentioned until said cause has been removed, Landlord
reserves the right to interrupt, curtail, stop or suspend (i) the furnishing of
heating, elevator, air conditioning, and cleaning services and (ii) the
operation of the plumbing and electric systems. Landlord shall exercise
reasonable diligence to eliminate the cause of any such interruption,
curtailment, stoppage or suspension, but there shall be no diminution or
abatement of rent or other compensation due from Landlord to Tenant hereunder,
nor shall this Lease be affected or any of the Tenant's obligations hereunder
reduced, and the Landlord shall have no responsibility or liability for any
such interruption, curtailment, stoppage, or suspension of services or systems.
14
8.9 ENERGY CONSERVATION. Notwithstanding anything to the contrary in
this Article 8 or in this Lease contained, Landlord may institute, and Tenant
shall comply with, such policies, programs and measures as may be necessary,
required, or expedient for the conservation and/or preservation of energy or
energy services, or as may be necessary or required to comply with applicable
codes, rules regulations or standards.
8.10 MISCELLANEOUS. Other than air conditioning, all services provided
by Landlord to Tenant are based upon an assumed maximum premises population of
one person per two hundred (200) square feet of Total Rentable Area, which
limit Tenant shall in no event exceed.
9. ESCALATION
9.1 DEFINITIONS. As used in this Article 9, the words and terms which
follow mean and include the following:
(a) "Operating Year" shall mean a calendar year in which occurs any
part of the term of this Lease.
(b) "Operating Costs in the Base Year" shall be the amount as stated
in Exhibit 1.
(c) "Tenant's Proportionate Share" shall be the figure as stated in
Exhibit 1.
(d) "Taxes" shall mean the real estate taxes and other taxes, levies
and assessments imposed upon the Building and the land on which it stands and
upon any personal property of Landlord used in the operation thereof, or
Landlord's interest in the Building or such personal property; charges, fees
and assessments for transit, housing, police, fire or other governmental
services or purported benefits to the Building; service or user payments in
lieu of taxes; and any and all other taxes, levies, betterments, assessments
and charges arising from the ownership, leasing, operating, use or occupancy of
the Building or based upon rentals derived therefrom, which are or shall be
imposed by National, State, Municipal or other authorities. As of the Execution
Date, "Taxes" shall not include any franchise, rental, income or profit tax,
capital levy or excise, provided, however, that any of the same and any other
tax, excise, fee, levy, charge or assessment, however described, that may in
the future be levied or assessed as a substitute for or an addition to, in
whole or in part, any tax, levy or assessment which would otherwise constitute
"Taxes," whether or not now customary or in the contemplation of the parties on
the Execution Date of this Lease, shall constitute "Taxes," but only to the
extent calculated as if the Building and the land upon which it stands is the
only real estate owned by Landlord. "Taxes" shall also include expenses of tax
abatement or other proceedings contesting assessments or levies.
(e) "Tax Base" shall be the amount stated in Exhibit 1 and shall
apply to a Tax Period of twelve (12) months. Tax Base shall be reduced pro rata
if and to the extent that the Tax Period contains fewer than twelve (12) months.
(f) "Tax Period" shall be any fiscal/tax period in respect of which
Taxes are due and payable to the appropriate governmental taxing authority, any
portion of which period occurs during the term of this Lease, the first such
Period being the one in which the Term Commencement Date occurs.
(g) "Operating Costs" shall mean all costs incurred and expenditures
of whatever nature made by Landlord in the operation and management, for repair
and replacements, cleaning and maintenance of the Building and grounds
including, without limitation, vehicular and pedestrian passageways related to
the Building (but excluding those areas, if any,
15
outside the Building and for which operating expenses are chargeable to
non-office (i.e. commercial) tenants), related equipment, facilities and
appurtenances, elevators, cooling and heating equipment (not including,
however: (i) mortgage charges, (ii) brokerage commissions, (iii) salaries of
executives and owners not directly employed in the management/operation of the
Building, (iv) the cost of work done by Landlord for a particular tenant for
which Landlord has the right to be reimbursed by such tenant, (v) if the
Building is not, as of the Execution Date, in compliance with any laws, rules,
orders or regulations in effect as of the Execution Date of this Lease, the
costs, if any, incurred by Landlord in bringing the Building into such
compliance, and (vi) such portion of expenditures as are not properly
chargeable against income), provided, however, that (i) if, during the term of
this Lease, Landlord shall replace any capital items or make any capital
expenditures (collectively called "capital expenditures") the total amount of
which is not properly includible in Operating Costs for the Operating Year in
which they were made, there shall nevertheless be included in such Operating
Costs and in Operating Costs for each succeeding Operating Year the amount, if
any, by which the annual charge-off (determined as hereinafter provided) of
such capital expenditure (less insurance proceeds, if any, collected by
Landlord by reason of damage to, or destruction of the capital item being
replaced) exceeds the annual charge-off of the capital expenditure for the item
being replaced; and (ii) if a new capital item is acquired which does not
replace another capital item which was worn out, has become obsolete, etc.,
then there shall be included in Operating Costs for each Operating Year in
which and after such capital expenditure is made the annual charge-off of such
capital expenditure. (Annual charge-off shall be determined by (i) dividing the
original cost of the capital expenditure by the number of years of useful life
thereof [The useful life shall be reasonably determined by Landlord in
accordance with generally accepted accounting principles and practices in effect
at the time of acquisition of the capital item.]; and (ii) adding to such
quotient an interest factor computed on the unamortized balance of such capital
expenditure at an annual rate of either one percentage point over the AA Bond
rate [Standard & Poor's corporate composite or, if unavailable, its equivalent]
as reported in the financial press at the time the capital expenditure is made
or, if the capital item is acquired through third-party financing, then the
actual [including fluctuating] rate paid by Landlord in financing the
acquisition of such capital item.) Provided, further, that if Landlord
reasonably concludes on the basis of engineering estimates that a particular
capital expenditure will effect savings in Building operating expenses
including, without limitation, energy-related costs, and that such annual
projected savings will exceed the annual charge-off of capital expenditures
computed as aforesaid, then and in such events, the annual charge-off shall be
determined by dividing the amount of such capital expenditure by the number of
years over which the projected amount of such savings shall fully amortize the
cost of such capital item or the amount of such capital expenditure; and by
adding the interest factor, as aforesaid.
Operating Costs shall include, but not be limited to, the following:
TAXES (OTHER THAN REAL ESTATE TAXES): Sales, Federal Social Security,
Unemployment and Old Age Taxes and contributions and State Unemployment taxes
and contributions accruing to and paid by the Landlord on account of all
employees of Landlord who are employed in, about or on account of the Building,
except that taxes levied upon the net income of the Landlord and taxes withheld
from employees, and "Taxes" as defined in Article 9.1(d) shall not be included
herein.
WATER: All charges and rates connected with water supplied to the Building and
related sewer use charges.
HEAT AND AIR CONDITIONING: All charges connected with heat and air conditioning
supplied to the Building.
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WAGES: Wages and cost of all employee benefits of all employees of the Landlord
who are employed in, about or on account of the Building.
CLEANING: The cost of labor and material for cleaning the Building, surrounding
areaways and windows in the Building.
ELEVATOR MAINTENANCE: All expenses for or on account of the upkeep and
maintenance of all elevators in the Building.
ELECTRICITY: The cost of all electric current for the operation of any machine,
appliance or device used for the operation of the premises and the Building,
including the cost of electric current for the elevators, lights, air
conditioning and heating, but not including electric current which is paid for
directly to the utility by the user/tenant in the Building. (If and so long as
Tenant is billed directly by the electric utility for its own consumption as
determined by its separate meter, then Operating Costs shall include only
Building and public area electric current consumption and not any demised
premises electric current consumption. Wherever separate metering is unlawful,
prohibited by utility company regulation or tariff or is otherwise
impracticable, relevant consumption figures for the purposes of this Article 9
shall be determined by fair and reasonable allocations and engineering
estimates made by Landlord. Furthermore, if and to the extent that the
Operating-Costs-in-the-Base-Year figure shall include any component
representing the cost to the Landlord of electric current supplied to any
tenant's premises under so-called "rent-inclusion" lease arrangements, then if
such cost is eliminated from Operating Costs in an Operating Year in accordance
with the foregoing provisions, the figure for Operating Costs in the Base Year
for the purposes of this Article 9 shall likewise be reduced by the amount for
such cost component.)
INSURANCE, ETC.: Fire, casualty, liability and such other insurance as may from
time to time be required by lending institutions on first-class office
buildings in the City or Town wherein the Building is located and all other
expenses customarily incurred in connection with the operation and maintenance
of first-class office buildings in the City or Town wherein the Building is
located including, without limitation, rental costs associated with the
Building's management office.
9.2 TAX EXCESS. If in any Tax Period the Taxes exceed the Tax Base,
Tenant shall pay to Landlord Tenant's Proportionate Share of such excess, such
amount being hereinafter referred to as "Tax Excess". Tax Excess shall be due
when billed by Landlord. In implementation and not in limitation of the
foregoing, Tenant shall remit to Landlord pro rata monthly installments on
account of projected Tax Excess, calculated by Landlord on the basis of the
most recent Tax data available. If the total of such monthly remittances on
account of any Tax Period is greater than the actual Tax Excess for such Tax
Period, Tenant may credit the difference against the next installment of rental
or other charges due to Landlord hereunder. If the total of such remittances is
less than the actual Tax Excess for such Tax Period, Tenant shall pay the
difference to Landlord when billed therefor.
Appropriate credit against Tax Excess shall be given for any refund
obtained by reason of a reduction in any Taxes by the Assessors or the
administrative, judicial or other governmental agency responsible therefor. The
original computations, as well as reimbursement or payments of additional
charges, if any, or allowances, if any, under the provisions of this Article
9.2 shall be based on the original assessed valuations with adjustments to be
made at a later date when the tax refund, if any, shall be paid to Landlord by
the taxing authorities. Expenditures for legal fees and for other similar or
dissimilar expenses incurred in obtaining the tax refund may be charged against
the tax refund before the adjustments are made for the Tax Period.
9.3 OPERATING EXPENSE EXCESS. If the Operating Costs in any Operating
Year exceed the Operating Costs in the Base Year, Tenant shall pay to Landlord
17
Tenant's Proportionate Share of such excess, such amount being hereinafter
referred to as "Operating Expense Excess." Operating Expense Excess shall be
due when billed by Landlord. In implementation and not in limitation of the
foregoing, Tenant shall remit to Landlord pro rata monthly installments on
account of projected Operating Expense Excess, calculated by Landlord on the
basis of the most recent Operating Costs data or budget available. If the total
of such monthly remittances on account of any Operating Year is greater than
the actual Operating Expense Excess for such Operating Year, Tenant may credit
the difference against the next installment of rent or other charges due to
Landlord hereunder. If the total of such remittances is less than actual
Operating Expense Excess for such Operating Year, Tenant shall pay the
difference to Landlord when billed therefor.
9.4 PART YEARS. If the Term Commencement Date or the Termination Date
occurs in the middle of an Operating Year or Tax Period, Tenant shall be liable
for only that portion of the Operating Expense or Tax Excess, as the case may
be, in respect of such Operating Year or Tax Period represented by a fraction
the numerator of which is the number of days of the herein term which falls
within the Operating Year or Tax Period and the denominator of which is three
hundred sixty-five (365), or the number of days in said Tax Period, as the case
may be.
9.5 EFFECT OF TAKING. In the event of any taking of the Building or the
land upon which it stands under circumstances whereby this Lease shall not
terminate under the provisions of Article 20 then, for the purposes of
determining Tax Excess, there shall be substituted for the Tax Base originally
provided for herein a fraction of such Tax Base, the numerator of which
fraction shall be the Taxes for the first Tax Period subsequent to the
condemnation or taking which takes into account such condemnation or taking,
and the denominator of which shall be the Taxes for the last Tax Period prior
to the condemnation or taking, which did not take into account such
condemnation or taking. Tenant's Proportionate Share shall be adjusted
appropriately to reflect the proportion of the premises and/or the Building
remaining after such taking.
9.6 DISPUTES, ETC. Any disputes arising under this Article 9 may, at the
election of either party, be submitted to arbitration as hereinafter provided.
Any obligations under this Article 9 which shall not have been paid at the
expiration or sooner termination of the term of this Lease shall survive such
expiration and shall be paid when and as the amount of same shall be determined
to be due.
10. CHANGES OR ALTERATIONS BY LANDLORD
Landlord reserves the right, exercisable by itself or its nominee, at any
time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor or
otherwise affecting Tenant's obligations under this Lease, to make such
changes, alterations, additions, improvements, repairs or replacements in or to
the Building (including the premises) and the fixtures and equipment thereof,
as well as in or to the street entrances, halls, passages, elevators,
escalators, and stairways thereof, as it may deem necessary or desirable, and
to change the arrangement and/or location of entrances or passageways, doors
and doorways, and corridors, elevators, stairs, toilets, or other public parts
of the Building, provided, however, that there be no unreasonable obstruction
of the right of access to, or unreasonable interference with the use and
enjoyment of, the premises by Tenant. Nothing contained in this Article 10
shall be deemed to relieve Tenant of any duty, obligation or liability of
Tenant with respect to making any repair, replacement or improvement or
complying with any law, order or requirement of any governmental or other
authority. Landlord reserves the right to adopt and at any time and from time
to time to change the name or address of the Building. Neither this Lease nor
any use by Tenant shall give Tenant any right or easement for the use of any
door or any passage or any concourse connecting with any other building or to
18
any public convenience, and the use of such doors, passages and concourses and
of such conveniences may be regulated or discontinued at any time and from time
to time by Landlord without notice to Tenant and without affecting the
obligation of Tenant hereunder or incurring any liability to Tenant therefor,
provided, however, that there be no unreasonable obstruction of the right of
access to, or unreasonable interference with the use of the premises by Tenant.
If at any time any windows of the premises are temporarily closed or
darkened for any reason whatsoever including but not limited to, Landlord's own
acts, Landlord shall not be liable for any damage Tenant may sustain thereby
and Tenant shall not be entitled to any compensation therefor nor abatements of
rent nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction.
11. FIXTURES, EQUIPMENT AND IMPROVEMENTS--REMOVAL BY TENANT
All fixtures, equipment, improvements and appurtenances attached to or
built into the premises prior to or during the term, whether by Landlord at its
expense or at the expense of Tenant (either or both) or by Tenant shall be and
remain part of the premises and shall not be removed by Tenant during or at the
end of the term unless Landlord otherwise elects to require Tenant to remove
such fixtures, equipment, improvements and appurtenances, in accordance with
Articles 12 and/or 22 of the Lease. All electric, telephone, telegraph,
communication, radio, plumbing, heating and sprinkling systems, fixtures and
outlets, vaults, paneling, molding, shelving, radiator enclosures, cork,
rubber, linoleum and composition floors, ventilating, silencing, air
conditioning and cooling equipment, shall be deemed to be included in such
fixtures, equipment, improvements and appurtenances, whether or not attached to
or built into the premises. Where not built into the premises, all removable
electric fixtures, carpets, drinking or tap water facilities, furniture, or
trade fixtures or business equipment or Tenant's inventory or stock in trade
shall not be deemed to be included in such fixtures, equipment, improvements
and appurtenances and may be, and upon the request of Landlord will be, removed
by Tenant upon the condition that such removal shall not materially damage the
premises or the Building and that the cost of repairing any damage to the
premises or the Building arising from installation or such removal shall be
paid by Tenant. If this Lease shall be terminated by reason of Tenant's breach
or default, then, notwithstanding anything to the contrary in this Lease
contained, Landlord shall have a lien against all Tenant's property in the
premises or elsewhere in the Building at the time of such termination to secure
Landlord's rights under Article 21 hereof. Tenant shall, within ten (10) days
of Landlord's written request, from time to time, execute and deliver to
Landlord such documentation (e.g., UCC statements) as may be necessary to
enable Landlord to perfect such lien.
12. ALTERATIONS AND IMPROVEMENTS BY TENANT
Tenant shall make no alterations, decorations, installations, removals,
additions or improvements in or to the premises without Landlord's prior
written consent and then only those (i) which equal or exceed the
specifications and quantities provided in Exhibit 3, and (ii) made by
contractors or mechanics approved by Landlord. No installations or work shall
be undertaken or begun by Tenant until: (i) Landlord has approved written plans
and specifications and a time schedule for such work; (ii) Tenant has made
provision for either written waivers of liens from all contractors, laborers
and suppliers of materials for such installations or work, the filing of lien
bonds on behalf of such contractors, laborers and suppliers, or other
appropriate protective measures approved by Landlord; and (iii) Tenant has
procured appropriate surety payment and performance bonds. No amendments or
additions to such plans and specifications shall be made without the prior
written consent of Landlord. Landlord's consent and approval required under
this Article 12 shall not be unreasonably withheld. Landlord's approval is
solely given for the benefit of Landlord and neither Tenant nor any third
19
party shall have the right to rely upon Landlord's approval of Tenant's plans
for any purpose whatsoever. Without limiting the foregoing, Tenant shall be
responsible for all elements of the design of Tenant's plans (including,
without limitation, compliance with law, functionality of design, and the
structural integrity of the design), and Landlord's approval of Tenant's plans
shall in no event relieve Tenant of the responsibility for such design. Any
such work, alterations, decorations, installations, removals, additions and
improvements shall be done at Tenant's sole expense and at such times and in
such manner as Landlord may from time to time designate. If Tenant shall make
any alterations, decorations, installations, removals, additions or
improvements then Landlord may elect to require the Tenant at the expiration or
sooner termination of the term of this Lease to restore the premises to
substantially the same condition as existed at the Term Commencement Date.
Tenant shall pay, as an additional charge, the entire increase in real estate
taxes on the Building which shall, at any time prior to or after the Term
Commencement Date, result from or be attributable to any alteration, addition
or improvement to the premises made by or for the account of Tenant in excess
of the specifications and quantities provided in Exhibit 3.
13. TENANT'S CONTRACTORS--MECHANICS' AND OTHER LIENS--STANDARD OF TENANT'S
PERFORMANCE--COMPLIANCE WITH LAWS
Whenever Tenant shall make any alterations, decorations, installations,
removals, additions or improvements in or to the premises--whether such work be
done prior to or after the Term Commencement Date--Tenant will strictly observe
the following covenants and agreements:
(a) Tenant agrees that it will not, either directly or indirectly,
use any contractors and/or materials if their use will create any difficulty,
whether in the nature of a labor dispute or otherwise, with other contractors
and/or labor engaged by Tenant or Landlord or others in the construction,
maintenance and/or operation of the Building or any part thereof.
(b) In no event shall any material or equipment be incorporated in
or added to the premises, so as to become a fixture or otherwise a part of the
Building, in connection with any such alteration, decoration, installation,
addition or improvement which is subject to any lien, charge, mortgage or other
encumbrance of any kind whatsoever or is subject to any security interest or
any form of title retention agreement. No installations or work shall be
undertaken or begun by Tenant until (i) Tenant has made provision for written
waiver of liens from all contractors, laborers and suppliers of materials for
such installations or work, and taken other appropriate protective measures
approved by Landlord; and (ii) Tenant has procured appropriate surety payment
and performance bonds which shall name Landlord as an additional obligee and
has filed lien bond(s) (in jurisdictions where available) on behalf of such
contractors, laborers and suppliers. Any mechanic's lien filed against the
premises or the Building for work claimed to have been done for, or materials
claimed to have been furnished to, Tenant shall be discharged by Tenant within
ten (10) days thereafter, at Tenant's expense by filing the bond required by
law or otherwise. If Tenant fails so to discharge any lien, Landlord may do so
at Tenant's expense and Tenant shall reimburse Landlord for any expense or cost
incurred by Landlord in so doing within fifteen (15) days after rendition of a
bill therefor.
(c) All installations or work done by Tenant shall be at its own
expense and shall at all times comply with (i) laws, rules, orders and
regulations of governmental authorities having jurisdiction thereof; (ii)
orders, rules and regulations of any Board of Fire Underwriters, or any other
body hereafter constituted exercising similar functions, and governing
insurance rating bureaus; (iii) Rules and Regulations of Landlord; and (iv)
plans and specifications prepared by and at the expense of Tenant theretofore
submitted to and approved by Landlord.
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(d) Tenant shall procure all necessary permits before undertaking
any work in the premises; do all of such work in a good and workmanlike manner,
employing materials of good quality and complying with all governmental
requirements; and defend, save harmless, exonerate and indemnify Landlord from
all injury, loss or damage to any person or property occasioned by or growing
out of such work. Tenant shall cause contractors employed by Tenant to carry
Worker's Compensation Insurance in accordance with statutory requirements,
Automobile Liability Insurance and, naming Landlord as an additional insured,
Commercial General Liability Insurance covering such contractors on or about
the premises in the amounts stated in Article 15 hereof or in such other
reasonable amounts as Landlord shall require and to submit certificates
evidencing such coverage to Landlord prior to the commencement of such work.
14. REPAIRS BY TENANT--FLOOR LOAD
14.1 REPAIRS BY TENANT. Tenant shall keep all and singular the premises
neat and clean (including periodic rug shampoo and waxing of tiled floors and
cleaning of blinds and drapes) and in such repair, order and condition as the
same are in on the Term Commencement Date or may be put in during the term
hereof, reasonable use and wearing thereof and damage by fire or by other
casualty excepted. Tenant shall make, as and when needed as a result of misuse
by, or neglect or improper conduct of, Tenant or Tenant's servants, employees,
agents, contractors, invitees, or licensees or otherwise, all repairs in and
about the premises necessary to preserve them in such repair, order and
condition, which repairs shall be in quality and class equal to the original
work. Landlord may elect, at the expense of Tenant, to make any such repairs or
to repair any damage or injury to the Building or the premises caused by moving
property of Tenant in or out of the Building, or by installation or removal of
furniture or other property, or by misuse by, or neglect, or improper conduct
of, Tenant or Tenant's servants, employees, agents, contractors, or licensees.
14.2 FLOOR LOAD--HEAVY MACHINERY. Tenant shall not place a load upon any
floor of the premises exceeding the floor load per square foot of area which
such floor was designed to carry and which is allowed by law. Landlord reserves
the right to prescribe the weight and position of all business machines and
mechanical equipment, including safes, which shall be placed so as to
distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient in
Landlord's judgment to absorb and prevent vibration, noise and annoyance.
Tenant shall not move any safe, heavy machinery, heavy equipment, freight,
bulky matter, or fixtures into or out of the Building without Landlord's prior
written consent. If such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons
holding a Master Rigger's License to do said work, and that all work in
connection therewith shall comply with applicable laws and regulations. Any
such moving shall be at the sole risk and hazard of Tenant and Tenant will
defend, indemnify and save Landlord harmless against and from any liability,
loss, injury, claim or suit resulting directly or indirectly from such moving.
Proper placement of all such business machines, etc., in the premises shall be
Tenant's responsibility.
15. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION
15.1 GENERAL LIABILITY INSURANCE. Tenant shall procure, and keep in
force and pay for Commercial General Liability Insurance insuring Tenant on an
occurrence basis against all claims and demands for personal injury liability
(including, without limitation, bodily injury, sickness, disease, and death) or
damage to property which may be claimed to have occurred from and after the
time Tenant and/or its contractors enter the premises in accordance with
Article 4 of this Lease, of not less than Two Million ($2,000,000) Dollars in
the event of personal injury to any number of persons or damage to property,
arising out of any one occurrence, and from time to time thereafter shall be
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not less than such higher amounts, if procurable, as may be reasonably required
by Landlord and are customarily carried by responsible similar tenants in the
City or Town wherein the Building is located.
15.2 CERTIFICATES OF INSURANCE. Such insurance shall be effected with
insurers approved by Landlord, authorized to do business in the State wherein
the Building is situated under valid and enforceable policies wherein Tenant
names Landlord and Landlord's managing agent as additional insureds. Such
insurance shall provide that it shall not be cancelled or modified without at
least thirty (30) days' prior written notice to each insured named therein. On
or before the time Tenant and/or its contractors enter the premises in
accordance with Articles 4 and 14 of this Lease and thereafter not less than
fifteen (15) days prior to the expiration date of each expiring policy,
original copies of the policies provided for in Article 15.1 issued by the
respective insurers, or certificates of such policies setting forth in full the
provisions thereof and issued by such insurers together with evidence
satisfactory to Landlord of the payment of all premiums for such policies,
shall be delivered by Tenant to Landlord and certificates as aforesaid of such
policies shall upon request of Landlord, be delivered by Tenant to the holder
of any mortgage affecting the premises.
15.3 GENERAL. Tenant will save Landlord, its agents and employees,
harmless and will exonerate, defend and indemnify Landlord, its agents and
employees, from and against any and all claims, liabilities or penalties
asserted by or on behalf of any person, firm, corporation or public authority
arising from the Tenant's breach of the Lease or:
(a) On account of or based upon any injury to person, or loss of or
damage to property, sustained or occurring on the premises on account of or
based upon the act, omission, fault, negligence or misconduct of any person
whomsoever (other than Landlord, its agents, contractors or employees);
(b) On account of or based upon any injury to person, or loss of or
damage to property, sustained or occurring elsewhere (other than on the
premises) in or about the Building (and, in particular, without limiting the
generality of the foregoing, on or about the elevators, stairways, public
corridors, sidewalks, concourses, arcades, malls, galleries, vehicular tunnels,
approaches, areaways, roof, or other appurtenances and facilities used in
connection with the Building or premises) arising out of the use or occupancy
of the Building or premises by the Tenant, or by any person claiming by,
through or under Tenant, or on account of or based upon the act, omission,
fault, negligence or misconduct of Tenant, its agents, employees or
contractors; and
(c) On account of or based upon (including monies due on account of)
any work or thing whatsoever done (other than by Landlord or its contractors,
or agents or employees of either) on the premises during the term of this Lease
and during the period of time, if any, prior to the Term Commencement Date that
Tenant may have been given access to the premises.
(d) Tenant's obligations under this Article 15.3 shall be insured
either under the Commercial General Liability Insurance required under Article
15.1, above, or by a contractual insurance rider or other coverage; and
certificates of insurance in respect thereof shall be provided by Tenant to
Landlord upon request.
15.4 PROPERTY OF TENANT. In addition to and not in limitation of the
foregoing, Tenant covenants and agrees that, to the maximum extent permitted by
law, all merchandise, furniture, fixtures and property of every kind, nature
and description related or arising out of Tenant's leasehold estate hereunder,
which may be in or upon the premises or Building, in the public corridors, or
on the sidewalks, areaways and approaches adjacent thereto, shall be at the
sole risk and hazard of Tenant, and that if the whole or any part thereof shall
be damaged, destroyed, stolen or removed from any cause or
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reason whatsoever no part of said damage or loss shall be charged to, or borne
by, Landlord.
15.5 BURSTING OF PIPES, ETC. Landlord shall not be liable for any injury
or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, electrical or electronic emanations or
disturbance, water, rain or snow or leaks from any part of the Building or from
the pipes, appliances, equipment or plumbing works or from the roof, street or
sub-surface or from any other place or caused by dampness, vandalism, malicious
mischief or by any other cause of whatever nature, unless caused by or due to
the negligence of Landlord, its agents, servants or employees, and then only
after (i) notice to Landlord of the condition claimed to constitute negligence
and (ii) the expiration of a reasonable time after such notice has been
received by Landlord without Landlord having taken all reasonable and
practicable means to cure or correct such condition; and pending such cure or
correction by Landlord, Tenant shall take all reasonably prudent temporary
measures and safeguards to prevent any injury, loss or damage to persons or
property. In no event shall Landlord be liable for any loss, the risk of which
is covered by Tenant's insurance or is required to be so covered by this Lease;
nor shall Landlord or its agents be liable for any such damage caused by other
tenants or persons in the Building or caused by operations in construction of
any private, public, or quasi-public work; nor shall Landlord be liable for any
latent defect in the premises or in the Building; provided, however, that the
foregoing shall not relieve Landlord of its obligation to perform maintenance
and repairs pursuant to Article 8.7.
15.6 REPAIRS AND ALTERATIONS--NO DIMINUTION OF RENTAL VALUE. Except as
otherwise provided in Article 18, there shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Landlord by reason
of inconvenience, annoyance or injury to Tenant arising from any repairs,
alterations, additions, replacements or improvements made by Landlord, or any
related work, Tenant or others in or to any portion of the Building or premises
or any property adjoining the Building, or in or to fixtures, appurtenances, or
equipment thereof, or for failure of Landlord or others to make any repairs,
alterations, additions or improvements in or to any portion of the Building, or
of the premises, or in or to the fixtures, appurtenances or equipment thereof.
16. ASSIGNMENT, MORTGAGING AND SUBLETTING
A. Tenant covenants and agrees that neither this Lease nor the term and
estate hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred, voluntarily, by
operation of law or otherwise, and that neither the premises, nor any part
thereof will be encumbered in any manner by reason of any act or omission on
the part of Tenant, or used or occupied, or permitted to be used or occupied,
or utilized for desk space or for mailing privileges, by anyone other than
Tenant, or for any use or purpose other than as stated in Exhibit 1, or be
sublet, or offered or advertised for subletting. Notwithstanding the foregoing,
it is hereby expressly understood and agreed however, if Tenant is a
corporation, that the assignment or transfer of this Lease, and the term and
estate hereby granted, to any corporation into which Tenant is merged or with
which Tenant is consolidated which corporation shall have a net worth at least
equal to that of Tenant immediately prior to such merger or consolidation (such
corporation being hereinafter called "Assignee"), shall not be deemed to be
prohibited hereby if, and upon the express condition that Assignee and Tenant
shall promptly execute, acknowledge and deliver to Landlord an agreement in
form and substance satisfactory to Landlord whereby Assignee shall agree to be
independently bound by and upon all the covenants, agreements, terms,
provisions and conditions set forth in this Lease on the part of Tenant to be
performed, and whereby Assignee shall expressly agree that the provisions of
this Article 16 shall, notwithstanding such assignment
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or transfer, continue to be binding upon it with respect to all future
assignments and transfers.
B. Notwithstanding anything to the contrary in the Lease contained:
A. Tenant shall, prior to offering or advertising the premises, or
any portion thereof for sublease or assignment give Landlord a
Recapture Offer, as hereinafter defined.
B. For the purposes hereof a "Recapture Offer" shall be defined as
a notice in writing from Tenant to Landlord which:
1. States that Tenant desires to sublet the premises, or a
portion thereof, or to assign its interest in this Lease.
2. Identifies the affected portion of the premises ("Recapture
Premises").
3. Identifies the period of time ("Recapture Period") during
which Tenant proposes to sublet the Recapture Premises or
to assign its interest in the Lease.
4. Offers to Landlord to terminate the Lease in respect of the
Recapture Premises (in the case of a proposed assignment of
Tenant's interest in the Lease or a subletting for the
remainder of the term of the Lease) or to suspend the term
of the Lease PRO TANTO in respect of the Recapture Period
(i.e. the term of the Lease in respect of the Recapture
Premises shall be terminated during the Recapture Period
and Tenant's rental obligations shall be reduced in
proportion to the ratio of the Total Rentable Area of the
Recapture Premises to the Total Rentable Area of the
premises then demised to Tenant).
C. Landlord shall have sixty (60) days to accept a Recapture
Offer. If Landlord does not timely give written notice to
Tenant accepting a Recapture Offer, then Landlord agrees that
it will not unreasonably withhold or delay its consent to a
sublease of the Recapture Premises for the Recapture Period, or
an assignment of Tenant's interest in the Lease, as the case
may be, to a Qualified Transferee, as hereinafter defined.
D. For the purposes hereof, a "Qualified Transferee" shall be
defined as a person, firm or corporation which, in Landlord's
reasonable opinion:
1. is financially responsible and of good reputation;
2. is engaged in a business, the functional aspects of which,
with respect to the premises, are similar to the use of
other premises made by other office space tenants in
Wellesley Office Park; and
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3. is not a tenant or subtenant of premises in Wellesley
Office Park.
E. Notwithstanding anything to the contrary in this Paragraph B
contained:
1. If Tenant is in default of its obligations under the Lease
at the time that it makes the aforesaid offer to Landlord,
such default shall be deemed to be a "reasonable" reason
for Landlord withholding its consent to any proposed
subletting or assignment; and
2. If Tenant does not enter into a sublease with a subtenant
(or an assignment to an assignee, as the case may be)
approved by Landlord, as aforesaid, on or before the date
which is one hundred fifty (150) days after the earlier of:
(x) the expiration of said sixty (60) day period, or (y)
the date that Landlord notifies Tenant that Landlord will
not accept Tenant's offer to terminate or suspend the
Lease, then Landlord shall have the right arbitrarily to
withhold its consent to any subletting or assignment
proposed to be entered into by Tenant after the expiration
of said one hundred fifty (150) day period unless Tenant
again offers, in accordance with this Paragraph B, either
to terminate or to suspend the Lease in respect of the
portion of the premises proposed to be sublet (or in
respect of the entirety of the premises in the event of a
proposed assignment, as the case may be). If Tenant shall
make any subsequent offers to terminate or suspend the
Lease pursuant to this Paragraph B, any such subsequent
offers shall be treated in all respects as if it is
Tenant's first offer to suspend or terminate the Lease
pursuant to this Paragraph B, provided that the period of
time Landlord shall have in which to accept or reject such
subsequent offer shall be thirty (30) days.
F. No subletting or assignment shall relieve Tenant of its
primary obligation as party-Tenant hereunder, nor shall it
reduce or increase Landlord's obligations under the Lease.
C. If Tenant is an individual who uses and/or occupies the premises with
partners, or if Tenant is a partnership, then:
(i) Each present and future partner shall be personally bound by and
upon all of the covenants, agreements, terms, provisions and conditions set
forth in this Lease on the part of Tenant to be performed; and
(ii) In confirmation of the foregoing, Landlord may (but without being
required to do so) request (and Tenant shall duly comply) that Tenant, at the
time that Tenant admits any new partner to its partnership, shall require each
such new partner to execute an agreement in form and substance satisfactory to
Landlord whereby such new partner shall agree to be personally bound by and
upon all of the covenants, agreements, terms, provisions and conditions of this
Lease on the part of Tenant to be performed, without regard to the time when
such new partner is admitted to partnership or when any obligations under any
such covenants, etc., accrue.
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D. The listing of any name other than that of Tenant, whether on the
doors of the premises or on the Building directory, or otherwise, shall not
operate to vest in any such other person, firm or corporation any right or
interest in this Lease or in the premises or be deemed to effect or evidence
any consent of Landlord, it being expressly understood that any such listing is
a privilege extended by Landlord revocable at will by written notice to Tenant.
E. If this Lease be assigned, or if the premises or any part thereof be
sublet or occupied by anybody other than Tenant, Landlord may, at any time and
from time to time, collect rent and other charges from the assignee, subtenant
or occupant, and apply the net amount collected to the rent and other charges
herein reserved then due and thereafter becoming due, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, subtenant or occupant as a tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. Any consent by Landlord to a particular
assignment or subletting shall not in any way diminish the prohibition stated
in the first sentence of this Article 16 or the continuing liability of the
Tenant named on Exhibit 1 as the party Tenant under this Lease. No assignment
or subletting or use of the premises by an affiliate of Tenant shall affect the
purpose for which the premises may be used as stated in Exhibit 1.
17. MISCELLANEOUS COVENANTS
Tenant covenants and agrees as follows:
17.1 RULES AND REGULATIONS. Tenant will faithfully observe and comply
with the Rules and Regulations, if any, annexed hereto and such other and
further reasonable Rules and Regulations as Landlord hereafter at any time or
from time to time may make and may communicate in writing to Tenant, which in
the reasonable judgment of Landlord shall be necessary for the reputation,
safety, care or appearance of the Building, or the preservation of good order
therein, or the operation or maintenance of the Building, or the equipment
thereof, or the comfort of tenants or others in the Building, provided,
however, that in the case of any conflict between the provisions of this Lease
and any such regulations, the provisions of this Lease shall control, and
provided further that nothing contained in this Lease shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and
Regulations or the terms, covenants or conditions in any other lease as against
any other tenant and Landlord shall not be liable to Tenant for violation of
the same by any other tenant, its servants, employees, agents, contractors,
visitors, invitees or licensees.
17.2 ACCESS TO PREMISES--SHORING. Tenant shall: (i) permit Landlord to
erect, use and maintain pipes, ducts and conduits in and through the premises,
provided the same do not materially reduce the floor area or materially
adversely affect the appearance thereof; (ii) upon prior oral notice (except
that no notice shall be required in emergency situations), permit Landlord and
any mortgagee of the Building or the Building and land or of the interest of
Landlord therein, and any lessor under any ground or underlying lease, and
their representatives, to have free and unrestricted access to and to enter
upon the premises at all reasonable hours for the purposes of inspection or of
making repairs, replacements or improvements in or to the premises or the
Building or equipment (including, without limitation, sanitary, electrical,
heating, air conditioning or other systems) or of complying with all laws,
orders and requirements of governmental or other authority or of exercising any
right reserved to Landlord by this Lease (including the right during the
progress of any such repairs, replacements or improvements or while performing
work and furnishing materials in connection with compliance with any such laws,
orders or requirements to take upon or through, or to keep and store within,
the premises all necessary materials,
26
tools and equipment); and (iii) permit Landlord, at reasonable times, to show
the premises during ordinary business hours to any existing or prospective
mortgagee, ground lessor, space lessee, purchaser, or assignee of any mortgage,
of the Building or of the Building and the land or of the interest of Landlord
therein, and during the period of 12 months next preceding the Termination Date
to any person contemplating the leasing of the premises or any part thereof.
If, during the last month of the term, Tenant shall have removed all or
substantially all of Tenant's property therefrom, Landlord may immediately
enter and alter, renovate and redecorate the premises, without elimination or
abatement of rent, or incurring liability to Tenant for any compensation, and
such acts shall have no effect upon this Lease. If Tenant shall not be
personally present to open and permit an entry into the premises at any time
when for any reason an entry therein shall be necessary or permissible,
Landlord or Landlord's agents may enter the same by a master key, or may
forcibly enter the same, without rendering Landlord or such agents liable
therefor (if during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property), and without in any manner affecting the
obligations and covenants of this Lease. Provided that Landlord shall incur no
additional expense thereby, Landlord shall exercise its rights of access to the
premises permitted under any of the terms and provisions of this Lease in such
manner as to minimize to the extent practicable interference with Tenant's use
and occupation of the premises. If an excavation shall be made upon land
adjacent to the premises or shall be authorized to be made, Tenant shall afford
to the person causing or authorized to cause such excavation, license to enter
upon the premises for the purpose of doing such work as said person shall deem
necessary to preserve the Building from injury or damage and to support the
same by proper foundations without any claims for damages or indemnity against
Landlord, or diminution or abatement of rent.
17.3 ACCIDENTS TO SANITARY AND OTHER SYSTEMS. Tenant shall give to
Landlord prompt notice of any fire or accident in the premises or in the
Building and of any damage to, or defective condition in, any part or
appurtenance of the Building including, without limitation, sanitary,
electrical, heating and air conditioning or other systems located in, or
passing through, the premises. Except as otherwise provided in Articles 18 and
20, and subject to Tenant's obligations in Article 14, such damage or defective
condition shall be remedied by Landlord with reasonable diligence, but if such
damage or defective condition was caused by Tenant or by the employees,
licensees, contractors or invitees of Tenant, the cost to remedy the same shall
be paid by Tenant. Tenant shall not be entitled to claim any eviction from the
premises or any damages arising from any such damage or defect unless the same
(i) shall have been occasioned by the negligence of the Landlord, its agents,
servants or employees and (ii) shall not, after notice to Landlord of the
condition claimed to constitute negligence, have been cured or corrected within
a reasonable time after such notice has been received by Landlord; and in case
of a claim of eviction unless such damage or defective condition shall have
rendered the premises untenantable and they shall not have been made tenantable
by Landlord within a reasonable time.
17.4 SIGNS, BLINDS AND DRAPES. Tenant shall put no signs in any part of
the Building. No signs or blinds may be put on or in any window or elsewhere if
visible from the exterior of the Building, nor may the building standard drapes
or blinds be removed by Tenant. Tenant may hang its own drapes, provided that
they shall not in any way interfere with the building standard drapery or
blinds or be visible from the exterior of the Building and that such drapes are
so hung and installed that when drawn, the building standard drapery or blinds
are automatically also drawn. Any signs or lettering in the public corridors or
on the doors shall conform to Landlord's building standard design. Neither
Landlord's name, nor the name of the Building or any Center, Office Park or
other complex of which the Building is a part, or the name of any other
structure erected therein shall be used without Landlord's consent in any
advertising material (except on business stationery or as an address in
advertising matter), nor shall any such name,
27
as aforesaid, be used in any undignified, confusing, detrimental or misleading
manner.
17.5 ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to
time upon not less than ten (10) days' prior notice by Landlord to Tenant,
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), and the dates to which the Yearly Rent and other
charges have been paid in advance, if any, stating whether or not Landlord is
in default in performance of any covenant, agreement, term, provision or
condition contained in this Lease and, if so, specifying each such default and
such other facts as Landlord may reasonably request, it being intended that any
such statement delivered pursuant hereto may be relied upon by any prospective
purchaser of the Building or of the Building and the land or of any interest of
Landlord therein, any mortgagee or prospective mortgagee thereof, any lessor or
prospective lessor thereof, any lessee or prospective lessee thereof, or any
prospective assignee of any mortgage thereof. Time is of the essence in respect
of any such requested certificate, Tenant hereby acknowledging the importance
of such certificates in mortgage financing arrangements, prospective sale and
the like. Tenant hereby appoints Landlord Tenant's attorney-in-fact in its name
and behalf to execute such statement if Tenant shall fail to execute such
statement within such ten-(10)-day period.
17.6 PROHIBITED MATERIALS AND PROPERTY. Tenant shall not bring or permit
to be brought or kept in or on the premises or elsewhere in the Building (i)
any inflammable, combustible or explosive fluid, material, chemical or
substance including, without limitation, any hazardous substances as defined
under Massachusetts General Laws chapter 21E, the Federal Comprehensive
Environmental Response Compensation and Liability Act (CERCLA), 42 USC 9601 ET
SEQ., as amended, under Section 3001 of the Federal Resource Conservation and
Recovery Act of 1976, as amended, or under any regulation of any governmental
authority regulating environmental or health matters (except for standard
office supplies stored in proper containers), (ii) any material (including,
without limitation, materials selected by Tenant for the construction or other
preparation of the premises and furniture and carpeting) which pose any danger
to life, safety or health or may cause damage, injury or death; (iii) any
unique, unusually valuable, rare or exotic property, work of art or the like
unless the same is fully insured under all-risk coverage, or (iv) any data
processing, electronic, optical or other equipment or property of a delicate,
fragile or vulnerable nature unless the same are housed, shielded and protected
against harm and damage, whether by cleaning or maintenance personnel,
radiations or emanations from other equipment now or hereafter installed in the
Building, or otherwise. Nor shall Tenant cause or permit any odors of cooking
or other processes, or any unusual or other objectionable odors to emanate from
or permeate the premises.
17.7 REQUIREMENTS OF LAW--FINES AND PENALTIES. Tenant at its sole
expense shall comply with all laws, rules, orders and regulations, including,
without limitation, all energy-related requirements, of Federal, State, County
and Municipal Authorities and with any direction of any public officer or
officers, pursuant to law, which shall impose any duty upon Landlord or Tenant
with respect to or arising out of Tenant's use or occupancy of the premises.
Tenant shall reimburse and compensate Landlord for all expenditures made by, or
damages or fines sustained or incurred by, Landlord due to nonperformance or
noncompliance with or breach or failure to observe any item, covenant, or
condition of this Lease upon Tenant's part to be kept, observed, performed or
complied with. If Tenant receives notice of any violation of law, ordinance,
order or regulation applicable to the premises, it shall give prompt notice
thereof to Landlord.
17.8 TENANT'S ACTS--EFFECT ON INSURANCE. Tenant shall not do or permit
to be done any act or thing upon the premises or elsewhere in the Building
which will invalidate or be in conflict with any insurance policies covering
28
the Building and the fixtures and property therein; and shall not do, or permit
to be done, any act or thing upon the premises which shall subject Landlord to
any liability or responsibility for injury to any person or persons or to
property by reason of any business or operation being carried on upon said
premises or for any other reason. Tenant at its own expense shall comply with
all rules, orders, regulations and requirements of the Board of Fire
Underwriters, or any other similar body having jurisdiction, and shall not (i)
do, or permit anything to be done, in or upon the premises, or bring or keep
anything therein, except as now or hereafter permitted by the Fire Department,
Board of Underwriters, Fire Insurance Rating Organization, or other authority
having jurisdiction, and then only in such quantity and manner of storage as
will not increase the rate for any insurance applicable to the Building, or
(ii) use the premises in a manner which shall increase such insurance rates on
the Building, or on property located therein, over that applicable when Tenant
first took occupancy of the premises hereunder. If by reason of the failure of
Tenant to comply with the provisions hereof the insurance rate applicable to
any policy of insurance shall at any time thereafter be higher than it
otherwise would be, the Tenant shall reimburse Landlord for that part of any
insurance premiums thereafter paid by Landlord, which shall have been charged
because of such failure by Tenant. Landlord represents and warrants to Tenant
that, to the best of Landlord's knowledge, the Building complies with all
applicable laws, rules, orders, regulations, energy requirements, etc., in
effect as of the Execution Date of this Lease.
17.9 Miscellaneous. Tenant shall not suffer or permit the premises or
any fixtures, equipment or utilities therein or serving the same, to be
overloaded, damaged or defaced, nor permit any hole to be drilled or made in
any part thereof. Tenant shall not suffer or permit any employee, contractor,
business invitee or visitor to violate any covenant, agreement or obligations
of the Tenant under this Lease.
18. DAMAGE BY FIRE, ETC.
A. During the entire term of this Lease, and adjusting insurance
coverages to reflect current values from time to time:--(i) Landlord shall keep
the Building (excluding work, installations, improvements and betterments in
the premises which exceed the specifications provided in Exhibit 3,
[called "Over-Building-Standard Property"] and any other property installed by
or at the expense of Tenant) insured against loss or damage caused by any peril
covered under fire, extended coverage and all risk insurance in an amount equal
to at least eighty percent (80%) of the full insurable value thereof above
foundation walls; and (ii) Tenant shall keep its personal property in and about
the premises and the Over-Building-Standard Property insured against loss or
damage caused by any peril covered under fire, extended coverage and all risk
insurance in an amount equal to at least eighty percent (80%) of the full
insurable value thereof. Such Tenant's insurance shall insure the interests of
both Landlord and Tenant as their respective interests may appear from time to
time and shall name Landlord as an additional insured; and the proceeds thereof
shall be used only for the replacement or restoration of such personal property
and the Over-Building-Standard Property.
B. If any portion of the premises required to be insured by Landlord
under the preceding paragraph shall be damaged by fire or other insured
casualty, Landlord shall proceed with diligence, subject to the then applicable
statutes, building codes, zoning ordinances, and regulations of any
governmental authority, and at the expense of Landlord (but only to the extent
of insurance proceeds made available to Landlord by any mortgagee and/or ground
lessor of the real property of which the premises are a part) to repair or
cause to be repaired such damage, provided, however, in respect of any
over-Building Standard Property as shall have been damaged by such fire or
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other casualty and which (in the judgment of Landlord) can more effectively be
repaired as an integral part of Landlord's repair work on the premises, that
such repairs to such Tenant's alterations, decorations, additions and
improvements shall be performed by Landlord but at Tenant's expense; in all
other respects, all repairs to and replacements of Tenant's property and
Over-Building-Standard Property shall be made by and at the expense of Tenant.
If the premises or any part thereof shall have been rendered unfit for use and
occupation hereunder by reason of such damage the Yearly Rent or a just and
proportionate part thereof, according to the nature and extent to which the
premises shall have been so rendered unfit, shall be suspended or abated until
the premises (except as to the property which is to be repaired by or at the
expense of Tenant) shall have been restored as nearly as practicably may be to
the condition in which they were immediately prior to such fire or other
casualty, provided, however, that if Landlord or any mortgagee of the Building
or of the Building and the land shall be unable to collect the insurance
proceeds (including rent insurance proceeds) applicable to such damage because
of some action or inaction on the part of Tenant, or the employees, licensees
or invitees of Tenant, the cost of repairing such damage shall be paid by
Tenant and there shall be no abatement of rent. Landlord shall not be liable
for delays in the making of any such repairs which are due to government
regulation, casualties and strikes, unavailability of labor and materials, and
other causes beyond the reasonable control of Landlord, nor shall Landlord be
liable for any inconvenience or annoyance to Tenant or injury to the business
of Tenant resulting from delays in repairing such damage. If (i) the premises
are so damaged by fire or other casualty (whether or not insured) at any time
during the last thirty months of the term hereof that the cost to repair such
damage is reasonably estimated to exceed one third of the total Yearly Rent
payable hereunder for the period from the estimated date of restoration until
the Termination Date, or (ii) the Building (whether or not including any
portion of the premises) is so damaged by fire or other casualty (whether or
not insured) that substantial alteration or reconstruction or demolition of the
Building shall in Landlord's judgment be required, then and in either of such
events, this Lease and the term hereof may be terminated at the election of
Landlord by a notice in writing of its election so to terminate which shall be
given by Landlord to Tenant within sixty (60) days following such fire or other
casualty, the effective termination date of which shall be not less than thirty
(30) days after the day on which such termination notice is received by Tenant.
In the event of any termination, this Lease and the term hereof shall expire as
of such effective termination date as though that were the Termination Date as
stated in Exhibit 1 and the Yearly Rent shall be apportioned as of such date;
and if the premises or any part thereof shall have been rendered unfit for use
and occupation by reason of such damage the Yearly Rent for the period from the
date of the fire or other casualty to the effective termination date, or a just
and proportionate part thereof, according to the nature and extent to which the
premises shall have been so rendered unfit, shall be abated.
C. In the event that the premises or the Building are damaged by fire or
other casualty to such an extent so as to render the premises untenantable, and
if Landlord shall fail to substantially complete said repairs or restoration
within one hundred fifty (150) days after the date of such fire or other
casualty for any reason other than Tenant's fault, Tenant may terminate this
Lease by giving Landlord written notice as follows:
(a) Said notice shall be given after said one hundred fifty (150)
day period.
(b) Said notice shall set forth an effective date which is not
earlier than thirty (30) days after Landlord receives said
notice.
(c) If said repairs or restoration are substantially complete on or
before the date thirty (30) days (which thirty-(30)-day period
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shall be extended by the length of any delays caused by Tenant
or Tenant's contractors) after Landlord receives such notice,
said notice shall have no further force and effect.
(d) If said repairs or restoration are not substantially complete on
or before the date thirty (30) days (which thirty-(30)-day period
shall be extended by the length of any delays caused by Tenant
or Tenant's contractors) after Landlord receives such notice,
the Lease shall terminate as of said effective date.
19. WAIVER OF SUBROGATION
In any case in which Tenant shall be obligated to pay to Landlord any
loss, cost, damage, liability, or expense suffered or incurred by Landlord,
Landlord shall allow to Tenant as an offset against the amount thereof (i) the
net proceeds of any insurance collected by Landlord for or on account of such
loss, cost, damage, liability or expense, provided that the allowance of such
offset does not invalidate or prejudice the policy or policies under which such
proceeds were payable, and (ii) if such loss, cost, damage, liability or
expense shall have been caused by a peril against which Landlord has agreed to
procure insurance coverage under the terms of this Lease, the amount of such
insurance coverage, whether or not actually procured by Landlord.
In any case in which Landlord or Landlord's managing agent shall be
obligated to pay to Tenant any loss, cost, damage, liability or expense
suffered or incurred by Tenant, Tenant shall allow to Landlord or Landlord's
managing agent, as the case may be, as an offset against the amount thereof (i)
the net proceeds of any insurance collected by Tenant for or on account of such
loss, cost, damage, liability, or expense, provided that the allowance of such
offset does not invalidate the policy or policies under which such proceeds
were payable and (ii) the amount of any loss, cost, damage, liability or
expense caused by a peril covered by fire insurance with the broadest form of
property insurance generally available on property in buildings of the type of
the Building, whether or not actually procured by Tenant.
The parties hereto shall each procure an appropriate clause in, or
endorsement on, any property insurance policy covering the premises and the
Building and personal property, fixtures and equipment located thereon and
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery in favor of either party, its respective
agents or employees. Having obtained such clauses and/or endorsements, each
party hereby agrees that it will not make any claim against or seek to recover
from the other or its agents or employees for any loss or damage to its
property or the property of others resulting from fire or other perils covered
by such property insurance.
20. CONDEMNATION - EMINENT DOMAIN
In the event that the premises or any part thereof, or the whole or any
part of the Building, shall be taken or appropriated by eminent domain or shall
be condemned for any public or quasi-public use, or (by virtue of any such
taking, appropriation or condemnation) shall suffer any damage (direct,
indirect or consequential) for which Landlord or Tenant shall be entitled to
compensation, then (and in any such event) this Lease and the term hereof may
be terminated at the election of Landlord by a notice in writing of its
election so to terminate which shall be given by Landlord to Tenant within
sixty (60) days following the date on which Landlord shall have received notice
of such taking, appropriation or condemnation. In the event that a substantial
part of the premises or of the means of access thereto shall be so taken,
appropriated or condemned, then (and in any such event) this Lease and the term
hereof may be terminated at the election of Tenant by a notice in
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writing of its election so to terminate which shall be given by Tenant to
Landlord within sixty (60) days following the date on which Tenant shall have
received notice of such taking, appropriation or condemnation.
Upon the giving of any such notice of termination (either by Landlord or
Tenant) this Lease and the term hereof shall terminate on or retroactively as
of the date on which Tenant shall be required to vacate any part of the
premises or shall be deprived of a substantial part of the means of access
thereto, provided, however, that Landlord may in Landlord's notice elect to
terminate this Lease and the term hereof retroactively as of the date on which
such taking, appropriation or condemnation became legally effective. In the
event of any such termination, this Lease and the term hereof shall expire as
of such effective termination date as though that were the Termination Date as
stated in Exhibit 1, and the Yearly Rent shall be apportioned as of such date.
If neither party (having the right so to do) elects to terminate Landlord will,
with reasonable diligence and at Landlord's expense, restore the remainder of
the premises, or the remainder of the means of access, as nearly as practicably
may be to the same condition as obtained prior to such taking, appropriation or
condemnation in which event (i) the Total Rentable Area shall be adjusted as in
Exhibit 5 provided, (ii) a just proportion of the Yearly Rent, according to the
nature and extent of the taking, appropriation or condemnation and the
resulting permanent injury to the premises and the means of access thereto,
shall be permanently abated, and (iii) a just proportion of the remainder of
the Yearly Rent, according to the nature and extent of the taking,
appropriation or condemnation and the resultant injury sustained by the
premises and the means of access thereto, shall be abated until what remains of
the premises and the means of access thereto shall have been restored as fully
as may be for permanent use and occupation by Tenant hereunder. Except for any
award specifically reimbursing Tenant for moving or relocation expenses, there
are expressly reserved to Landlord all rights to compensation and damages
created, accrued or accruing by reason of any such taking, appropriation or
condemnation, in implementation and in confirmation of which Tenant does hereby
acknowledge that Landlord shall be entitled to receive all such compensation
and damages, grant to Landlord all and whatever rights (if any) Tenant may have
to such compensation and damages, and agree to execute and deliver all and
whatever further instruments of assignment as Landlord may from time to time
request. In the event of any taking of the premises or any part thereof for
temporary use, (i) this Lease shall be and remain unaffected thereby, and (ii)
Tenant shall be entitled to receive for itself any award made for such use,
provided, that if any taking is for a period extending beyond the term of this
Lease, such award shall be apportioned between Landlord and Tenant as of the
Termination Date or earlier termination of this Lease.
21. DEFAULT
21.1 CONDITIONS OF LIMITATION - RE-ENTRY - TERMINATION. This Lease and
the herein term and estate are, upon the condition that if (a) subject to
Article 21.7, Tenant shall neglect or fail to perform or observe any of the
Tenant's covenants or agreements herein, including (without limitation) the
covenants or agreements with regard to the payment when due of rent, additional
charges, reimbursement for increase in Landlord's costs, or any other charge
payable by Tenant to Landlord (all of which shall be considered as part of
Yearly Rent for the purposes of invoking Landlord's statutory or other rights
and remedies in respect of payment defaults); or (b) Tenant shall desert or
abandon the premises or the same shall become, or shall appear to have become,
vacant (whether or not the keys shall have been surrendered or the rent shall
have been paid); or (c) Tenant shall be involved in financial difficulties as
evidenced by an admission in writing by Tenant of Tenant's inability to pay its
debts generally as they become due, or by the making or offering to make a
composition of its debts with its creditors; or (d) Tenant shall make an
assignment or trust mortgage, or other conveyance or transfer of like nature,
of all or a substantial part of its property for the benefit of its creditors,
or (e) an attachment on mesne process, on execution or
32
otherwise, or other legal process shall issue against Tenant or its property
and a sale of any of its assets shall be held thereunder; or (f) any judgment,
final beyond appeal or any lien, attachment or the like shall be entered,
recorded or filed against Tenant in any court, registry, etc. and Tenant shall
fail to pay such judgment within thirty (30) days after the judgment shall have
become final beyond appeal or to discharge or secure by surety bond such lien,
attachment, etc. within thirty (30) days of such entry, recording or filing, as
the case may be; or (g) the leasehold hereby created shall be taken on
execution or by other process of law and shall not be revested in Tenant within
thirty (30) days thereafter; or (h) a receiver, sequesterer, trustee or similar
officer shall be appointed by a court of competent jurisdiction to take charge
of all or any part of Tenant's property and such appointment shall not be
vacated within thirty (30) days; or (i) any proceeding shall be instituted by
or against Tenant pursuant to any of the provisions of any Act of Congress or
State law relating to bankruptcy, reorganizations, arrangements, compositions
or other relief from creditors, and, in the case of any proceeding instituted
against it, if Tenant shall fail to have such proceedings dismissed within
thirty (30) days or if Tenant is adjudged bankrupt or insolvent as a result of
any such proceeding, or (j) any event shall occur or any contingency shall
arise whereby this Lease, or the term and estate thereby created, would (by
operation of law or otherwise) devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted under Article 16
hereof - then, and in any such event (except as hereinafter in Article 21.2
otherwise provided) Landlord may, by notice to Tenant, elect to terminate this
Lease; and thereupon (and without prejudice to any remedies which might
otherwise be available for arrears of rent or other charges due hereunder or
preceding breach of covenant or agreement and without prejudice to Tenant's
liability for damages as hereinafter stated), upon the giving of such notice,
this Lease shall terminate as of the date specified therein as though that were
the Termination Date as stated in Exhibit 1. Without being taken or deemed to
be guilty of any manner of trespass or conversion, and without being liable to
indictment, prosecution or damages therefor, Landlord may, forcibly if
necessary, enter into and upon the premises (or any part thereof in the name of
the whole); repossess the same as of its former estate; and expel Tenant and
those claiming under Tenant. Wherever "Tenant " is used in subdivisions (c),
(d), (e), (f), (g), (h) and (i) of this Article 21.1, it shall be deemed to
include any one of (i) any corporation of which Tenant is a controlled
subsidiary and (ii) any guarantor of any of Tenant's obligations under this
Lease. The words "re-entry" and "re-enter" as used in this Lease are not
restricted to their technical legal meanings.
21.2 DAMAGES - ASSIGNMENT FOR BENEFIT OF CREDITORS. For the more
effectual securing to Landlord of the rent and other charges and payments
reserved hereunder, it is agreed as a further condition of this Lease that if
at any time Tenant shall make any transfer similar to or in the nature of an
assignment of its property for the benefit of its creditors, the term and
estate hereby created shall terminate ipso facto, without entry or other action
by Landlord; and notwithstanding any other provisions of this Lease, Landlord
shall forthwith upon such termination, without prejudice to any remedies which
might otherwise be available for arrears of rent or other charges due hereunder
or preceding breach of this Lease, be ipso facto entitled to recover as
liquidated damages the sum of (a) the amount described in clause (x) of Article
21.3 and (b) (in view of the uncertainty of prompt re-letting and the expense
entailed in re-letting the premises) an amount equal to the rent and other
charges payable for and in respect of the twelve-(12)-month period next
preceding the date of termination, as aforesaid.
21.3 DAMAGES - TERMINATION. Upon the termination of this Lease under the
provisions of this Article 21, then except as hereinabove in Article 21.2
otherwise provided, Tenant shall pay to Landlord the rent and other charges
payable by Tenant to Landlord up to the time of such termination, shall
continue to be liable for any preceding breach of covenant, and in addition,
shall pay to Landlord as damages, at the election of Landlord
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either:
(x) the amount by which, at the time of the termination of this
Lease (or at any time thereafter if Landlord shall have initially elected
damages under subparagraph (y), below), (i) the aggregate of the rent and other
charges projected over the period commencing with such termination and ending
on the Termination Date as stated in Exhibit 1 exceeds (ii) the aggregate
projected rental value of the premises for such period;
or:
(y) amounts equal to the rent and other charges which would have
been payable by Tenant had this Lease not been so terminated, payable upon the
due dates therefor specified herein following such termination and until the
Termination Date as specified in Exhibit 1, provided, however, if Landlord
shall re-let the premises during such period, that Landlord shall credit Tenant
with the net rents received by Landlord from such re-letting, such net rents to
be determined by first deducting from the gross rents as and when received by
Landlord from such re-letting the expenses incurred or paid by Landlord in
terminating this Lease, as well as the expenses of re-letting, including
altering and preparing the premises for new tenants, brokers' commissions, and
all other similar and dissimilar expenses properly chargeable against the
premises and the rental therefrom, it being understood that any such re-letting
may be for a period equal to or shorter or longer than the remaining term of
this Lease; and provided, further, that (i) in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable by
Tenant to Landlord hereunder and (ii) in no event shall Tenant be entitled in
any suit for the collection of damages pursuant to this Subparagraph (y) to a
credit in respect of any net rents from a re-letting except to the extent that
such net rents are actually received by Landlord prior to the commencement of
such suit. If the premises or any part thereof should be re-let in combination
with other space, then proper apportionment on a square foot area basis shall
be made of the rent received from such re-letting and of the expenses of
re-letting.
In calculating the rent and other charges under Subparagraph (x), above,
there shall be included, in addition to the Yearly Rent, Tax Excess and
Operating Expense Excess and all other considerations agreed to be paid or
performed by Tenant, on the assumption that all such amounts and considerations
would have remained constant (except as herein otherwise provided) for the
balance of the full term hereby granted.
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not
been terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant.
21.4 FEES AND EXPENSES.
(a) If Tenant shall default in the performance of any covenant on
Tenant's part to be performed as in this Lease contained, Landlord may
immediately, or at any time thereafter, without notice, perform the same for
the account of Tenant. If Landlord at any time is compelled to pay or elects to
pay any sum of money, or do any act which will require the payment of any sum
of money, by reason of the failure of Tenant to comply with any provision
hereof, or if Landlord is compelled to or does incur any expense, including
34
reasonable attorneys' fees, in instituting, prosecuting, and/or defending any
action or proceeding instituted by reason of any default of Tenant hereunder,
Tenant shall on demand pay to Landlord by way of reimbursement the sum or sums
so paid by Landlord with all costs and damages, plus interest computed as
provided in Article 6 hereof.
(b) Tenant shall pay Landlord's cost and expense, including
reasonable attorneys' fees, incurred (i) in enforcing any obligation of Tenant
under this Lease or (ii) as a result of Landlord, without its fault, being made
party to any litigation pending by or against Tenant or any persons claiming
through or under Tenant.
21.5 WAIVER OF REDEMPTION. Tenant does hereby waive and surrender all
rights and privileges which it might have under or by reason of any present or
future law to redeem the premises or to have a continuance of this Lease for
the term hereby demised after being dispossessed or ejected therefrom by
process of law or under the terms of this Lease or after the termination of
this Lease as herein provided.
21.6 LANDLORD'S REMEDIES NOT EXCLUSIVE. The specified remedies to which
Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any remedies or means of redress to which Landlord may at any time
be lawfully entitled, and Landlord may invoke any remedy (including the remedy
of specific performance) allowed at law or in equity as if specific remedies
were not herein provided for.
21.7 GRACE PERIOD. Notwithstanding anything to the contrary in this
Article contained, Landlord agrees not to take any action to terminate this
Lease (a) for default by Tenant in the payment when due of any sum of money, if
Tenant shall cure such default within ten (10) days after written notice
thereof is given by Landlord to Tenant, provided, however, that no such notice
need be given and no such default in the payment of money shall be curable if
on two (2) prior occasions there had been a default in the payment of money
which had been cured after notice thereof had been given by Landlord to Tenant
as herein provided or (b) for default by Tenant in the performance of any
covenant other than a covenant to pay a sum of money, if Tenant shall cure such
default within a period of thirty (30) days after written notice thereof given
by Landlord to Tenant (except where the nature of the default is such that
remedial action should appropriately take place sooner, as indicated in such
written notice), or within such additional period as may reasonably be required
to cure such default if (because of governmental restrictions or any other
cause beyond the reasonable control of Tenant) the default is of such a nature
that it cannot be cured within such thirty-(30)-day period, provided, however,
(1) that there shall be no extension of time beyond such thirty-(30)-day period
for the curing of any such default unless, not more than ten (10) days after
the receipt of the notice of default, Tenant in writing (i) shall specify the
cause on account of which the default cannot be cured during such period and
shall advise Landlord of its intention duly to institute all steps necessary to
cure the default and (ii) shall, as soon as reasonably practicable, duly
institute and thereafter diligently prosecute to completion all steps necessary
to cure such default and, (2) that no notice of the opportunity to cure a
default need be given, and no grace period whatsoever shall be allowed to
Tenant, if the default is incurable or if the covenant or condition the breach
of which gave rise to default had, by reason of a breach on a prior occasion,
been the subject of a notice hereunder to cure such default.
Notwithstanding anything to the contrary in this Article 21.7 contained,
except to the extent prohibited by applicable law, any statutory notice and
grace periods provided to Tenant by law are hereby expressly waived by Tenant.
22. END OF TERM - ABANDONED PROPERTY
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Upon the expiration or other termination of the term of this Lease, Tenant
shall peaceably quit and surrender to Landlord the premises and all alterations
and additions thereto, broom clean, in good order, repair and condition (except
as provided herein and in Articles 8.7, 18 and 20) excepting only ordinary wear
and use and damage by fire or other casualty for which, under other provisions
of this Lease, Tenant has no responsibility of repair or restoration. Tenant
shall remove all of its property and, to the extent specified by Landlord, all
alterations and additions made by Tenant and all partitions wholly within the
premises, and shall repair any damages to the premises or the Building caused
by their installation or by such removal. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of this Lease.
Tenant will remove any personal property from the Building and the
premises upon or prior to the expiration or termination of this Lease and any
such property which shall remain in the Building or the premises thereafter
shall be conclusively deemed to have been abandoned, and may either be retained
by Landlord as its property or sold or otherwise disposed of in such manner as
Landlord may see fit. If any part thereof shall be sold, that Landlord may
receive and retain the proceeds of such sale and apply the same, at its option,
against the expenses of the sale, the cost of moving and storage, any arrears
of Yearly Rent, additional or other charges payable hereunder by Tenant to
Landlord and any damages to which Landlord may be entitled under Article 21
hereof or pursuant to law.
If Tenant or anyone claiming under Tenant shall remain in possession of
the premises or any part thereof after the expiration or prior termination of
the term of this Lease without any agreement in writing between Landlord and
Tenant with respect thereto, then, prior to the acceptance of any payments for
rent or use and occupancy by Landlord, the person remaining in possession shall
be deemed a tenant-at-sufferance. Whereas the parties hereby acknowledge that
Landlord may need the premises after the expiration or prior termination of the
term of the Lease for other tenants and that the damages which Landlord may
suffer as the result of Tenant's holding-over cannot be determined as of the
Execution Date hereof, in the event that Tenant so holds over, Tenant shall pay
to Landlord in addition to all rental and other charges due and accrued under
the Lease prior to the date of termination, charges (based upon fair market
rental value of the premises) for use and occupation of the premises thereafter
and, in addition to such sums and any and all other rights and remedies which
Landlord may have at law or in equity, an additional use and occupancy charge
in the amount of fifty percent (50%) of either the Yearly Rent and other
charges calculated (on a daily basis) at the highest rate payable under the
terms of this Lease, but measured from the day on which Tenant's hold-over
commenced and terminating on the day on which Tenant vacates the premises or
the fair market value of the premises for such period, whichever is greater.
Notwithstanding the foregoing, Landlord shall have the right to elect to
recover any other damages which Landlord is permitted to recover under this
Lease in lieu of said liquidated damages by giving Tenant written notice of
such election. From and after the date on which Landlord gives Tenant such
notice, said liquidated damages shall cease to accrue and Tenant shall be
liable to Landlord for any damages recoverable under this Lease which accrue
thereafter.
23. SUBORDINATION
(a) Subject to any mortgagee's or ground lessor's election, as hereinafter
provided for, this Lease is subject and subordinate in all respects to all
matters of record (including, without limitation, deeds and land disposition
agreements), ground leases and/or underlying leases, and all mortgages, any of
which may now or hereafter be placed on or affect such leases and/or the real
property of which the premises are a part, or any part of such real property,
and/or Landlord's interest or estate therein, and to each advance made and/or
hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions
36
thereof and all substitutions therefor. This Article 23 shall be self-operative
and no further instrument or subordination shall be required. In confirmation
of such subordination, Tenant shall execute, acknowledge and deliver promptly
any certificate or instrument that Landlord and/or any mortgagee and/or lessor
under any ground or underlying lease and/or their respective successors in
interest may request, subject to Landlord's, mortgagee's and ground lessor's
right to do so for, on behalf and in the name of Tenant under certain
circumstances, as hereinafter provided. Tenant acknowledges that, where
applicable, any consent or approval hereafter given by Landlord may be subject
to the further consent or approval of such mortgagee and/or ground lessor; and
the failure or refusal of such mortgagee and/or ground lessor to give such
consent or approval shall, notwithstanding anything to the contrary in this
Lease contained, constitute reasonable justification for Landlord's withholding
its consent or approval. Notwithstanding anything to the contrary in this
Article 23 contained, as to any future mortgages, ground leases, and/or
underlying lease or deeds of trust, the herein provided subordination and
attornment shall be effective only if the mortgagee, ground lessor or trustee
therein, as the case may be, agrees, by a written instrument in recordable form
and in the customary form of such mortgagee, ground lessor, or trustee that, as
long as Tenant shall not be in terminable default of the obligations on its
part to be kept and performed under the terms of this Lease, this Lease will
not be affected and Tenant's possession hereunder will not be disturbed by any
default in, termination, and/or foreclosure of, such mortgage, ground lease,
and/or underlying lease or deed of trust, as the case may be.
(b) Any such mortgagee or ground lessor may from time to time subordinate
or revoke any such subordination of the mortgage or ground lease held by it to
this Lease. Such subordination or revocation, as the case may be, shall be
effected by written notice to Tenant and by recording an instrument of
subordination or of such revocation, as the case may be, with the appropriate
registry of deeds or land records and to be effective without any further act
or deed on the part of Tenant. In confirmation of such subordination or of such
revocation, as the case may be, Tenant shall execute, acknowledge and promptly
deliver any certificate or instrument that Landlord, any mortgagee or ground
lessor may request, subject to Landlord's, mortgagee's and ground lessor's
right to do so for, on behalf and in the name of Tenant under certain
circumstances, as hereinafter provided.
(c) Without limitation of any of the provisions of this Lease, if any
ground lessor or mortgagee shall succeed to the interest of Landlord by reason
of the exercise of its rights under such ground lease or mortgage (or the
acceptance of voluntary conveyance in lieu thereof) or any third party
(including, without limitation, any foreclosure purchaser or mortgage receiver)
shall succeed to such interest by reason of any such exercise or the expiration
or sooner termination of such ground lease, however caused, then such successor
may, upon notice and request to Tenant (which, in the case of a ground lease,
shall be within thirty (30) days after such expiration or sooner termination),
succeed to the interest of Landlord under this Lease, provided, however, that
such successor shall not: (i) be liable for any previous act or omission of
Landlord under this Lease; (ii) be subject to any offset, defense, or
counterclaim which shall theretofore have accrued to Tenant against Landlord;
(iii) have any obligation with respect to any security deposit unless it shall
have been paid over or physically delivered to such successor; or (iv) be bound
by any previous modification of this Lease or by any previous payment of Yearly
Rent for a period greater than one (1) month, made without such ground lessor's
or mortgagee's consent where such consent is required by applicable ground
lease or mortgage documents. In the event of such succession to the interest of
the Landlord --and notwithstanding that any such mortgage or ground lease may
antedate this Lease -- the Tenant shall attorn to such successor and shall ipso
facto be and become bound directly to such successor in interest to Landlord to
perform and observe all the Tenant's obligations under this Lease without the
necessity of the execution of any
37
further instrument. Nevertheless, Tenant agrees at any time and from time to
time during the term hereof to execute a suitable instrument in confirmation of
Tenant's agreement to attorn, as aforesaid, subject to Landlord's, mortgagee's
and ground lessor's right to do so for, on behalf and in the name of Tenant
under certain circumstances, as hereinafter provided.
(d) The term "mortgage(s)" as used in this Lease shall include any
mortgage or deed of trust. The term "mortgagee(s)" as used in this Lease shall
include any mortgagee or any trustee and beneficiary under a deed of trust or
receiver appointed under a mortgage or deed of trust. The term "mortgagor(s)"
as used in this Lease shall include any mortgagor or any grantor under a deed
of trust.
(e) Tenant hereby irrevocably constitutes and appoints Landlord or any
such mortgagee or ground lessor, and their respective successors in interest,
acting singly, Tenant's attorney-in-fact to execute and deliver any such
certificate or instrument for, on behalf and in the name of Tenant, but only if
Tenant fails to execute, acknowledge and deliver any such certificate or
instrument within ten (10) days after Landlord or such mortgagee or such ground
lessor has made written request therefor.
(f) Notwithstanding anything to the contrary contained in this Article
23, if all or part of Landlord's estate and interest in the real property of
which the premises are a part shall be a leasehold estate held under a ground
lease, then: (i) the foregoing subordination provisions of this Article 23
shall not apply to any mortgages of the fee interest in said real property to
which Landlord's leasehold estate is not otherwise subject and subordinate; and
(ii) the provisions of this Article 23 shall in no way waive, abrogate or
otherwise affect any agreement by any ground lessor (x) not to terminate this
Lease incident to any termination of such ground lease prior to its term
expiring or (y) not to name or join Tenant in any action or proceeding by such
ground lessor to recover possession of such real property or for any other
relief.
(g) In the event of any failure by Landlord to perform, fulfill or
observe any agreement by Landlord herein, in no event will the Landlord be
deemed to be in default under this Lease permitting Tenant to exercise any or
all rights or remedies under this Lease until the Tenant shall have given
written notice of such failure to any mortgagee (ground lessor and/or trustee)
of which Tenant shall have been advised and until a reasonable period of time
shall have elapsed following the giving of such notice, during which such
mortgagee (ground lessor and/or trustee) shall have the right, but shall not be
obligated, to remedy such failure.
24. QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant keeps and performs each
and every covenant, agreement, term, provision and condition herein contained
on the part and on behalf of Tenant to be kept and performed, Tenant shall
quietly enjoy the premises from and against the claims of all persons claiming
by, through or under Landlord subject, nevertheless, to the covenants,
agreements, terms, provisions and conditions of this Lease and to the
mortgages, ground leases and/or underlying leases to which this Lease is
subject and subordinate, as hereinabove set forth.
Without incurring any liability to Tenant, Landlord may permit access to
the premises and open the same, whether or not Tenant shall be present, upon
any demand of any receiver, trustee, assignee for the benefit of creditors,
sheriff, marshal or court officer entitled to, or reasonable purporting to be
entitled to, such access for the purpose of taking possession of, or removing,
Tenant's property or for any other lawful purpose (but this provision and any
action by Landlord hereunder shall not be deemed a recognition by Landlord that
the person or official making such demand has any right or interest in or
38
to this Lease, or in or to the premises), or upon demand of any representative
of the fire, police, building, sanitation or other department of the city,
state or federal governments.
25. ENTIRE AGREEMENT -- WAIVER -- SURRENDER
25.1 ENTIRE AGREEMENT. This Lease and the Exhibits made a part hereof
contain the entire and only agreement between the parties and any and all
statements and representations, written and oral, including previous
correspondence and agreements between the parties hereto, are merged herein.
Tenant acknowledges that all representations and statements upon which it
relied in executing this Lease are contained herein and that the Tenant in no
way relied upon any other statements or representations, written or oral. Any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or in part unless
such executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
25.2 WAIVER BY LANDLORD. The failure of Landlord to seek redress for
violation, or to insist upon the strict performance, of any covenant or
condition of this Lease, or any of the Rules and Regulations promulgated
hereunder, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. The failure
of Landlord to enforce any of such Rules and Regulations against Tenant and/or
any other tenant in the Building shall not be deemed a waiver of any such Rules
and Regulations. No provisions of this Lease shall be deemed to have been
waived by Landlord unless such waiver be in writing signed by Landlord. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on account of the
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy in this Lease provided.
25.3 SURRENDER. No act or thing done by Landlord during the term hereby
demised shall be deemed an acceptance of a surrender of the premises, and no
agreement to accept such surrender shall be valid, unless in writing signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys of the premises prior to the termination of this Lease. The
delivery of keys to any employee of Landlord or of Landlord's agents shall not
operate as a termination of the Lease or a surrender of the premises. In the
event that Tenant at any time desires to have Landlord underlet the premises
for Tenant's account, Landlord or Landlord's agents are authorized to receive
the keys for such purposes without releasing Tenant from any of the obligations
under this Lease, and Tenant hereby relieves Landlord of any liability for loss
of or damage to any of Tenant's effects in connection with such underletting.
26. INABILITY TO PERFORM - EXCULPATORY CLAUSE
Except as provided in Article 4.1 and 4.2 hereof, this Lease and the
obligations of Tenant to pay rent hereunder and perform all the other
covenants, agreements, terms, provisions and conditions hereunder on the part
of Tenant to be performed shall in no way be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease
or is unable to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make or is delayed in making any
repairs, replacements, additions, alterations, improvements or decorations or
is unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of strikes or labor
39
troubles or any other similar or dissimilar cause whatsoever beyond Landlord's
reasonable control, including but not limited to, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any governmental agency
or by reason of the conditions of supply and demand which have been or are
affected by war, hostilities or other similar or dissimilar emergency. In each
such instance of inability of Landlord to perform, Landlord shall exercise
reasonable diligence to eliminate the cause of such inability to perform.
Tenant shall neither assert nor seek to enforce any claim against
Landlord, or Landlord's agents or employees, or the assets of Landlord or of
Landlord's agents or employees, for breach of this Lease or otherwise, other
than against Landlord's interest in the Building of which the premises are a
part and in the uncollected rents, issues and profits thereof, and Tenant
agrees to look solely to such interest for the satisfaction of any liability of
Landlord under this Lease, it being specifically agreed that in no event shall
Landlord or Landlord's agents or employees (or any of the officers, trustees,
directors, partners, beneficiaries, joint venturers, members, stockholders or
other principals or representatives, and the like, disclosed or undisclosed,
thereof) ever be personally liable for any such liability. This paragraph shall
not limit any right that Tenant might otherwise have to obtain injunctive
relief against Landlord or to take any other action which shall not involve the
personal liability of Landlord to respond in monetary damages from Landlord's
assets other than the Landlord's interest in said real estate, as aforesaid. In
no event shall Landlord or Landlord's agents or employees (or any of the
officers, trustees, directors, partners, beneficiaries, joint venturers,
members, stockholders or other principals or representatives and the like,
disclosed or undisclosed, thereof) ever be liable for consequential or
incidental damages. If by reason of Landlord's failure to acquire title to the
real property of which the premises are a part or to complete construction of
the Building or premises, Landlord shall be held to be in breach of this Lease,
Tenant's sole and exclusive remedy shall be a right to terminate this Lease.
27. BILLS AND NOTICES
Any notice, consent, request, bill, demand or statement hereunder by
either party to the other party shall be in writing and, if received at
Landlord's or Tenant's address, shall be deemed to have been duly given when
either delivered or served personally or mailed in a postpaid envelope,
deposited in the United States mail addressed to Landlord at its address as
stated in Exhibit 1 and to Tenant at the premises (or at Tenant's address as
stated in Exhibit 1, if mailed prior to Tenant's occupancy of the premises), or
if any address for notices shall have been duly changed as hereinafter
provided, if mailed as aforesaid to the party at such changed address. Either
party may at any time change the address or specify an additional address for
such notices, consents, requests, bills, demands or statements by delivering or
mailing, as aforesaid, to the other party a notice stating the change and
setting forth the changed or additional address, provided such changed or
additional address is within the United States.
If Tenant is a partnership, Tenant, for itself, and on behalf of all of
its partners, hereby appoints Tenant's Service Partner, as identified on
Exhibit 1, to accept service of any notice, consent, request, bill, demand or
statement hereunder by Landlord and any service of process in any judicial
proceeding with respect to this Lease on behalf of Tenant and as agent and
attorney-in-fact for each partner of Tenant.
All bills and statements for reimbursement or other payments or charges
due from Tenant to Landlord hereunder shall be due and payable in full ten (10)
days, unless herein otherwise provided, after submission thereof by Landlord to
Tenant. Tenant's failure to make timely payment of any amounts indicated by
such bills and statements, whether for work done by Landlord at
40
Tenant's request, reimbursement provided for by this Lease or for any other
sums properly owing by Tenant to Landlord, shall be treated as a default in the
payment of rent, in which event Landlord shall have all rights and remedies
provided in this Lease for the nonpayment of rent.
28. PARTIES BOUND -- SEIZIN OF TITLE
The covenants, agreements, terms, provisions and conditions of this Lease
shall bind and benefit the successors and assigns of the parties hereto with
the same effect as if mentioned in each instance where a party hereto is named
or referred to, except that no violation of the provisions of Article 16 hereof
shall operate to vest any rights in any successor or assignee of Tenant and
that the provisions of this Article 28 shall not be construed as modifying the
conditions of limitation contained in Article 21 hereof.
If, in connection with or as a consequence of the sale, transfer or other
disposition of the real estate (land and/or Building, either or both, as the
case may be) of which the premises are a part, Landlord ceases to be the owner
of the reversionary interest in the premises, Landlord shall be entirely freed
and relieved from the performance and observance thereafter of all covenants
and obligations hereunder on the part of Landlord to be performed and observed,
it being understood and agreed in such event (and it shall be deemed and
construed as a covenant running with the land) that, subject to subparagraph
(c) of Article 23 of this Lease, the person succeeding to Landlord's ownership
of said reversionary interest shall thereupon and thereafter assume, and
perform and observe, any and all of such covenants and obligations of Landlord,
except that in the event of a transfer of Landlord's interest in the premises
by reason of a foreclosure of a mortgage affecting the premises or a deed in
lieu of foreclosure of such a mortgage, Landlord shall not be relieved of any
covenants or obligations of Landlord which arise prior to such foreclosure or
deed in lieu of foreclosure.
29. MISCELLANEOUS
29.1 SEPARABILITY. If any provision of this Lease or portion of such
provision or the application thereof to any person or circumstance is for any
reason held invalid or unenforceable, the remainder of the Lease (or the
remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
29.2 CAPTIONS, ETC. The captions are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the
scope of this Lease nor the intent of any provisions thereof. References to
"State" shall mean, where appropriate, the District of Columbia and other
Federal territories, possessions, as well as a state of the United States.
29.3 BROKER. Tenant represents and warrants that it has not directly or
indirectly dealt, with respect to the leasing of office space in the Building
or any Center, Office Park or other complex of which it is a part (called
"Building, etc." in this Article 29.3) with any broker or had its attention
called to the premises or other space to let in the Building, etc. by anyone
other than the broker, person or firm, if any, designated in Exhibit 1. Tenant
agrees to defend, exonerate and save harmless and indemnify Landlord and anyone
claiming by, through or under Landlord against any claims for a commission
arising out of the execution and delivery of this Lease or out of negotiations
between Landlord and Tenant with respect to the leasing of other space in the
Building, etc., provided that Landlord shall be solely responsible for the
payment of brokerage commissions to the broker, person or firm, if any,
designated in Exhibit 1.
29.4 INTENTIONALLY DELETED
29.5 ARBITRATION. Any disputes relating to provisions or obligations in
this Lease as to which a specific provision for a reference to arbitration
41
is made herein shall be submitted to arbitration in accordance with the
provisions of applicable state law (as identified on Exhibit 1), as from time
to time amended. Arbitration proceedings, including the selection of an
arbitrator, shall be conducted pursuant to the rules, regulations and
procedures from time to time in effect as promulgated by the American
Arbitration Association. Prior written notice of application by either party
for arbitration shall be given to the other at least ten (10) days before
submission of the application to the said Association's office in the City
wherein the Building is situated (or the nearest other city having an
Association office). The arbitrator shall hear the parties and their evidence.
The decision of the arbitrator shall be binding and conclusive, and judgment
upon the award or decision of the arbitrator may be entered in the appropriate
court of law (as identified on Exhibit 1); and the parties consent to the
jurisdiction of such court and further agree that any process or notice of
motion or other application to the Court or a Judge thereof may be served
outside the State wherein the Building is situated by registered mail or by
personal service, provided a reasonable time for appearance is allowed. The
costs and expenses of each arbitration hereunder and their apportionment
between the parties shall be determined by the arbitrator in his award or
decision. No arbitrable dispute shall be deemed to have arisen under this Lease
prior to (i) the expiration of the period of twenty (20) days after the date of
the giving of written notice by the party asserting the existence of the
dispute together with a description thereof sufficient for an understanding
thereof; and (ii) where a Tenant payment (e.g., Tax Excess or Operating Expense
Excess under Article 9 hereof) is in issue, the amount billed by Landlord
having been paid by Tenant.
29.6 GOVERNING LAW. This Lease is made pursuant to, and shall be
governed by, and construed in accordance with, the laws of the State wherein
the Building is situated and any applicable local municipal rules, regulations,
by-laws, ordinances and the like.
29.7 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord
of its interest in this Lease, or the rents payable hereunder, conditional in
nature or otherwise, which assignment is made to or held by a bank, trust
company, insurance company or other institutional lender holding a mortgage or
ground lease on the Building, Tenant agrees:
(a) that the execution thereof by Landlord and the acceptance
thereof by such mortgagee and/or ground lessor shall never be deemed an
assumption by such mortgagee and/or ground lessor of any of the obligations of
the Landlord thereunder, unless such mortgagee and/or ground lessor shall, by
written notice sent to the Tenant, specifically otherwise elect; and
(b) that, except as aforesaid, such mortgagee and/or ground lessor
shall be treated as having assumed the Landlord's obligations thereunder only
upon foreclosure of such mortgagee's mortgage or deed of trust or termination
of such ground lessor's ground lease and the taking of possession of the
demised premises after having given notice of its exercise of the option stated
in Article 23 hereof to succeed to the interest of the Landlord under this
Lease.
29.8 REPRESENTATION OF AUTHORITY. By his execution hereof each of the
signatories on behalf of the respective parties hereby warrants and represents
to the other that he is duly authorized to execute this Lease on behalf of such
party. If Tenant is a corporation, Tenant hereby appoints the signatory whose
name appears below on behalf of Tenant as Tenant's attorney-in-fact for the
purpose of executing this Lease for and on behalf of Tenant.
29.9 EXPENSES INCURRED BY LANDLORD UPON TENANT REQUESTS. Tenant shall,
upon demand, reimburse Landlord for all reasonable expenses, including, without
limitation, legal fees, incurred by Landlord in connection with all requests by
Tenant for consents, approvals or execution of collateral documentation related
to this Lease, including, without limitation, costs
42
incurred by Landlord in the review and approval of Tenant's plans and
specifications in connection with proposed alterations to be made by Tenant to
the premises, requests by Tenant to sublet the premises or assign its interest
in the Lease, the execution by Landlord of estoppel certificates requested by
Tenant, and requests by Tenant for Landlord to execute waivers of Landlord's
interest in Tenant's property in connection with third party financing by
Tenant. Such costs shall be deemed to be additional rent under the Lease.
29.10 SURVIVAL. Without limiting any other obligation of the Tenant
which may survive the expiration or prior termination of the term of the Lease,
all obligations on the part of Tenant to indemnify, defend, or hold Landlord
harmless, as set forth in this Lease (including, without limitation, Tenant's
obligations under Articles 13(d), 15.3, and 29.3) shall survive the expiration
or prior termination of the term of the Lease.
IN WITNESS WHEREOF the parties hereto have executed this Indenture of
Lease in multiple copies, each to be considered an original hereof, as a sealed
instrument on the day and year noted in Exhibit 1 as the Execution Date.
LANDLORD: TENANT:
WELLESLEY HOLDING, L.P. SILICON VALLEY BANK
By: Beacon Properties, L.P.,
General Partner By:_____________________
(Name) (Title)
By: Beacon Properties Hereunto Duly Authorized
Corporation,
General Partner
By:_____________________
Lionel P. Fortin,
Senior Vice President
IF TENANT IS A CORPORATION, A SECRETARY'S OR CLERK'S CERTIFICATE OF THE
AUTHORITY AND THE INCUMBENCY OF THE PERSON SIGNING ON BEHALF OF TENANT SHOULD
BE ATTACHED.
43
COMMONWEALTH, DISTRICT OR
STATE OF
COUNTY OF
On the Execution Date stated in Exhibit 1, the person above signing this
Lease for and on behalf of the Tenant, to me personally known, did sign and
execute this Lease and, being by me duly sworn, did depose and say that he is
the officer of the above named Tenant, as noted, and that he signed his name
hereto by order of the Board of Directors of said Tenant.
_____________________________________
Notary Public
My Commission Expires:_______________
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On the Execution Date stated in Exhibit 1, the person above signing this
Lease for and on behalf of Landlord to me personally known, did sign and
execute this Lease and, being by me duly sworn, did depose and say that he is
the duly authorized representative of Landlord.
_____________________________________
Notary Public
My Commission Expires:_______________
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EXHIBIT 3
BUILDING STANDARD ITEMS
The following exhibit sets forth the Building standard level of leasehold
improvements and does not, notwithstanding anything to the contrary in this
Exhibit 3 contained, impose any obligation on Landlord to provide any such
items in the premises.
A. EXTERIOR WALLS, LOBBY WALLS AND CORE WALLS
1. FINISH
The exposed surfaces are to receive a drywall finish. The toilet room
walls are to be finished with ceramic tile and drywall, or equal.
2. DOORS-FRAMES
Flush hollow metal doors or solid core wood doors 1-3/4" in thickness
will be installed in pressed metal door frames.
3. HARDWARE
Each swing door shall be provided with one and one-half pairs of butts,
a latch set, or lockset where required, and a door stop where required.
A surface mounted door closer will be provided at such additional
locations as may be required by the local code. All hardware shall be
Sargent, Schlage, Yale and Towne or equal.
B. PARTITIONS AND DOORS
1. PARTITIONS SEPARATING PREMISES (DEMISING)
A. PARTITIONS
Partitions separating premises shall be constructed of metal studs
with two layers of 5/8" wallboard on each side extending above the
ceiling, with one layer of wallboard on each side extended to the
underside of the floor construction above, or equal.
B. DOORS
All doors shall have pressed metal door frames or wood door frames
and casings, as Landlord may elect. The doors shall be solid core
wood doors and shall be provided with two pairs of butts, a
lockset, and doorstop where required. A door closer will be
provided for the principal entrance to the premises and at such
additional locations as may be required by the local code. The
locksets which are provided at the entrance will be master-keyed to
building standard and shall be Sargent, Yale and Towne, Schlage or
equal.
2. PARTITIONS SEPARATING OFFICES WITHIN SINGLE PREMISES
A. PARTITIONS
The partitions shall be constructed of metal studs with one layer
of 5/8" wallboard on each side or equal.
B. DOORS
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The swing doors shall have pressed metal door frames or wood frames
and casings, as Landlord may elect. The doors shall be solid core
and shall be provided with two pairs of butts, latch sets, and
doorstop where required. The number of doors shall not exceed one
door for each 25 lineal feet of allowed partitions. All hardware
shall be Sargent, Yale and Towne, Schlage or equal.
3. STANDARD QUALITY OF PARTITIONS
The total lineal footage of partitions shall not exceed one lineal foot
for each 15 square feet of (i) Net Rentable Area(1) for multi-tenant
floors or (ii) Gross Area(1), not including building core area, for
single-tenant floors.
C. CEILINGS
1. Mechanically suspended, 24" x 24" exposed slotted tee system with
fissured acoustic ceiling tiles, Class "A" (incombustible), 24" x 24",
square edged.
2. The mechanical suspension system shall be of the concealed type.
D. LIGHTING
1. At Landlord's election, either: (i) recessed 18 cell parabolic lighting
fixtures (2' x 4') with three (3) 35-watt rapid start tubes to the
extent of one such fixture per 85 square feet (average) of (x) New
Rentable Area for multi-tenant floors or (y) Gross Area, excluding core
area, for single-tenant floor, or (ii) a (1' x 4') recessed fluorescent
lighting fixture with two (2) 35-watt rapid start tubes to the extent
of one such fixture per seventy (70) square feet (average) of (x) New
Rentable Area for multi-tenant floors or (y) Gross Area, excluding core
area, for single-tenant floors, shall be installed by Landlord. Where
required by design conditions, smaller recessed florescent fixtures may
be substituted at Landlord's option.
2. Miscellaneous fixtures, fluorescent and/or incandescent, shall be
installed in mechanical spaces, toilet areas, stairwell and utility
areas to conform to building operation requirements and existing codes.
3. Wall switches of the single pole, quiet type to the extent of one
switch for each ten lighting fixtures averaged shall be installed by
Landlord. Each private office shall have at least one wall switch
(which will be counted in the allowance).
E. ELECTRICAL AND TELEPHONE
1. Duplex wall base and floor receptacles (not to exceed one per 125
square feet of (i) Net Rentable Area for multi-tenant floors or (ii)
Gross Area, not including building core area, for single-tenant floors)
shall be installed by Landlord. It is understood that not more than 10%
of the total number of such receptacles may be located in the floor.
2. Landlord will make the necessary provisions for wall and baseboard
telephone outlets (not to exceed one per 200 square feet of (i)
_______________________________
(1)The terms "Gross Area" and "Net Rentable Area" used in computing allowances
under this Exhibit 3 refer to definitions appearing in Article 7 of the Lease.
46
Net Rentable Area for multi-tenant floors or (ii) Gross Area, not
including building core area, for single-tenant floors). Installation
of the wiring by the telephone company is the responsibility of Tenant.
It is understood that not more than 10% of the total number of such
outlets may be located in the floor.
3. Power wiring circuits, including terminal device (208 Volt, 3 Phase,
grounded) shall be made available to Tenant as may be agreed between
the parties in connection with Tenant equipment at the rate of one per
6,000 square feet of (i) Net Rentable Area for multi-tenant floors or
(ii) Gross Area, not including building core area, for single tenant
floors.
F. PLUMBING
1. Wet stacks will be available on the typical office floor containing
cold water, waste, and vents. Tenant equipment can be connected at
these points by the Landlord at the Tenant's expense.
G. PAINTING AND WALL COVERING
1. All wall surface shall receive a finish coat of building standard
Polomyx paint over one prime coat, or equal, as Landlord may elect.
Doors and frames shall receive one coat of enamel over one prime coat
or shall have a natural finish of one coat of sealer and one coat of
varnish.
2. Paint colors shall be selected from the building standard color chart
with not more than one accent color (flat paint) on one wall in each
individual office.
3. Where Tenant desires wall covering, Landlord shall initially prepare
walls to receive wall covering as designated by Tenant. Such wall
covering shall be furnished and installed at Tenant's expense. Wall
covering shall be subject to Landlord's approval prior to installation.
4. Public areas, corridors and lobbies shall be finished in accordance
with the Landlord's Architect's schedule of room finish.
H. SUN-CONTROL BLINDS
Landlord shall furnish and install sun-control blinds or drapes, including
the tracks therefor, in colors selected by Landlord.
I. MECHANICAL
1. Landlord will install one thermostat for every four perimeter units in
premises served by the Building perimeter system.
2. Landlord will install one supply diffuser with 6 feet of flexible hose
for every 200 square feet of (i) Net Rentable Area for multi-tenant
floors or (ii) Gross Area, not including core area, for single-tenant
floors in any premises served by the Building central air distribution
system.
3. Landlord will install a sprinkler system for the public areas and
tenant premises to the extent of one head per 225 square feet of (i)
Net Rentable Area for multi-tenant floors or (ii) Gross Area, not
including building core area, for single-tenant floors.
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Such head shall be a chrome pendant head. Heads will be installed in
accordance with approved Tenant's final plans and all other governing
agencies and regulations.
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EXHIBIT 4
BUILDING SERVICES
A. GENERAL CLEANING (MONDAY THROUGH FRIDAY)
1. All stone, ceramic, tile, marble, terrazzo and other unwaxed flooring
to be swept nightly, using approved dust-down preparation.
2. All wood, linoleum, vinyl-asbestos, vinyl and other similar types of
floors to be swept or dry mopped nightly, using dust-down preparation;
all carpeting and rugs in the main traffic areas (corridors, reception
areas, etc.) to be vacuumed nightly and all other carpeted areas to be
vacuumed at least once each week.
3. Wax all public areas monthly.
4. Hand dust all furniture, files and fixtures nightly.
5. Empty all waste receptacles nightly and remove waste paper and waste
materials, including folded paper boxes and cartons, to a designated
area.
6. Empty and clean all ash trays and screen all sand urns nightly.
7. Wash and clean all water fountains and coolers nightly. Sinks and
floors adjacent to sinks to be washed nightly.
8. Hand dust all door and other ventilating louvers within reach, as
necessary, but not less often than monthly.
9. Dust all telephones as necessary.
10. Keep lockers and janitor sink rooms in a neat, orderly condition at all
times.
11. Wipe clean all bright metal work as necessary.
12. Check all stairwells throughout entire building nightly and keep in
clean condition.
13. Metal doors and trim of all public elevator cars to be properly
maintained and kept clean.
B. COMMON AREA LAVATORIES
1. Sweep and wash all lavatory floors nightly, using proper non-scented
disinfectants.
2. Clean all mirrors, powder shelves, bright work and enameled surfaces in
all lavatories nightly. Scour, wash and disinfect all basins, bowls and
urinals using non-scented disinfectants.
3. Police lavatories during the day with matron or porter to pick up waste
and replenish materials.
4. Wash all toilet seats nightly.
5. Fill toilet tissue holders nightly.
6. Empty paper towel receptacles nightly.
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7. Empty sanitary disposal receptacles nightly.
8. Thoroughly clean all wall tile and stall surfaces as necessary.
C. HIGH DUSTING
Do all high dusting (not reached in nightly cleaning) quarterly which
includes the following:
1. Dust all pictures, frames, charts, graphs, and similar wall hangings.
2. Dust exposed pipes, ventilation and air conditioning louvers, ducts and
high moldings.
D. WINDOW CLEANING
1. All exterior windows (except for any retail/commercial areas) from the
second floor and above will be cleaned inside and outside except when
cleaning is rendered impracticable by inclement weather.
2. Entrance doors and elevator lobby glass to be cleaned daily and kept in
a clean condition at all times during the day.
3. Wipe down all metal window frames as necessary but not less often than
monthly.
E. BUILDING LOBBIES
1. Floors to be swept and washed or vacuumed nightly, and machine scrubbed
according to Building Standard frequency.
2. Carpeting in passenger elevator cabs to be vacuum cleaned nightly.
3. Lobby walls to be dusted as often as necessary, but not less than
weekly.
4. Screen and clean sand urns nightly.
5. Clean all unpainted metal work in a manner appropriate to original
finish.
F. PORTERS
Necessary number of day porters under supervision will be assigned for the
following services:
1. Service all public and building operating space throughout the Building.
2. Keep elevator cars clean and neat during the day.
3. Maintain lobbies clean and, during wet weather, mopped dry to the
extent practicable.
4. Dust and rub down all elevator doors, frames, telephone booths and
directories daily.
5. Sweep sidewalks, ramps, etc. daily.
6. Clean roofs and setbacks as often as necessary.
7. Maintain firehose and equipment clean.
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8. Lay and remove lobby runners as necessary.
9. Replenish toilet tissue, towels and other supplies in lavatories.
10. Maintain fan rooms, motor rooms and air conditioning rooms in clean
condition.
11. Check stairways and keep same neat and clean during the day.
12. Clean exterior columns, exterior signs and metal work, standpipe and
sprinkler system, walkways and stairs as necessary.
13. If directed by superintendent, fill towel and soap dispensers and
perform any emergency cleaning required.
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EXHIBIT 5
RENTABLE AREA
(1) MEASUREMENT STANDARDS - SINGLE TENANCY FLOORS
Three steps, in sequence, are to be followed to determine the Total
Rentable Area: (i) compute gross area; (ii) deduct certain areas; and
(iii) add applicable share of areas to be apportioned. (See below
paragraph (c), below).
(a) GROSS AREA: The gross area of a floor shall be the entire area within
the exterior walls. If the exterior or demising wall consists in
whole or part of windows, fixed clear glass or other transparent
material, the measurement along the entire such wall shall be taken
to a line established by the horizontal place of the inside of the
glass or other transparent material. If it consists solely of a
non-transparent material, the measurement shall be taken to the
inside surface of the outer building wall. If a floor has no exterior
wall within the property line, measurements shall be taken to the
property line. If a floor has no full-height enclosing wall,
measurements shall be taken to the edge of the floor slab.
(b) DEDUCTIONS FROM GROSS AREA: The following non-rentable building areas
with one-half of their enclosing walls are to be deducted.
1. Public elevator shafts and associated elevator machine rooms.
2. Required egress stairways.
3. Areas within the gross area which are to be apportioned pursuant
to paragraph (c) below.
(c) AREAS TO BE APPORTIONED ("ATTRIBUTABLE AREA"):
1. Common facilities including without limitation, all heating,
ventilating, air conditioning, mechanical, electrical, cooling
tower, telephone and other service floors, rooms or areas,
containing equipment or supplies (exclusive of any tenant's
special air conditioning or mechanical area or facilities) and
all public lobbies (including monumental stair and/or escalator),
loading, and other common service areas, throughout and within
the Building including one-half of their enclosing walls, are to
be apportioned based upon the relative areas of the tenants'
premises served by such facilities.
2. Whenever the height of any room or space used for a heating,
ventilation, air conditioning, mechanical, or electrical facility
above the ground floor shall exceed the average story height in
the Building by more than 25%, then the floor area of such room
or space shall be determined by multiplying the actual floor area
by the percentage that the height of the room or space exceeds
the average story height, and adding the area so determined to
the actual floor area of such room or space; however, if any such
rooms or spaces penetrate the next higher floor, then the entire
area of such room or space on both floors shall be apportioned
under this paragraph (c) based upon the relative area of the
tenants' premises served by such facility, room or space.
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(2) MEASUREMENT STANDARDS - MULTIPLE OCCUPANCY FLOORS
The sum of the Total Rentable Area for two or more tenants in a floor
shall be the Total Rentable Area for that floor as computed in the manner
for single tenancy floors.
Three steps are to be followed to determine the Total Rentable Area for
each tenant on a multiple occupancy floor: (i) compute the Net Rentable
Area for such floor pursuant to (a) below; (ii) compute the Net Rentable
Area for each tenant pursuant to (b) below; and (iii) multiply the Total
Rentable Area of such floor by a fraction whose numerator is the Net
Rentable Area for such tenant and whose denominator is the Net Rentable
Area for such floor.
(a) NET RENTABLE AREA FOR ANY FLOOR: The Net Rentable Area shall be the
gross area as described for single tenancy floors less the entire
core area (measured to the finished enclosing walls thereof, but
excluding any part of the core rented to a tenant) and public
corridors measured to the corridor side of the enclosing walls
thereof.
(b) NET RENTABLE AREA FOR EACH TENANT: Exterior walls are to be measured
as described in the procedure for gross area. Demising walls between
tenants are to be equally divided. Corridor walls to the finished
corridor side are to be included in the Net Rentable Area of each
tenant.
(c) RETAIL AREA: The Total Rentable Area of a store or other retail
facility in the Building shall be computed in accordance with the
foregoing measurement standards for multiple occupancy floors.
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RIDER TO LEASE
LANDLORD: Wellesley Holding, L.P.
TENANT: Silicon Valley Bank
The subject Lease is hereby amended as follows:
1. TENANT'S OPTIONS TO EXTEND THE TERM OF LEASE
A. On the conditions, which conditions Landlord may waive, at its
election, by written notice to Tenant at any time, that Tenant is not in
default of its covenants and obligations under the Lease, and that Silicon
Valley Bank, itself, is occupying the entirety of the premises then demised to
Tenant, both as of the time of option exercise and as of the commencement of
the hereinafter described additional terms, Tenant shall have the option to
extend the term of this Lease for two (2) additional one (1) year terms, the
first such additional term commencing as of the day after the expiration of the
initial term of the Lease, and the second such additional term commencing as of
the day after the expiration of the first additional term. Tenant may exercise
each such option to extend by giving Landlord written notice on or before the
date nine (9) months prior to the expiration of the then current term of the
Lease. Upon the timely giving of such notice, the term of this Lease shall be
deemed extended upon all of the terms and conditions of this Lease, except that
Landlord shall have no obligation to construct or renovate the premises and
that the Yearly Rent, Operating Costs in the Base Year, and Tax Base during
each such additional term shall be as hereinafter set forth. If Tenant fails to
give timely notice, as aforesaid, Tenant shall have no further right to extend
the term of this Lease, time being of the essence of this Paragraph 1.
B. Notwithstanding anything to the contrary herein contained, in the
event that Tenant exercises its option to extend the term for the first
additional term, Landlord shall, at Landlord's cost repaint the premises using
Building standard paint and shampoo the carpeting throughout the premises.
C. YEARLY RENT
The Yearly Rent during each such additional term shall be based upon the
Fair Market Rental Value, as defined in Paragraph 3 of this Rider, as of the
54
commencement of each such additional term, of the premises then demised to
Tenant; provided however, that in no event shall the sum of Yearly Rent,
Operating Expense Excess and Tax Excess payable by Tenant for any
twelve-(12)-month period during each such additional term be less than the sum
of Yearly Rent, Operating Expense Excess and Tax Excess payable by Tenant in
respect of the twelve-(12)-month period immediately preceding the commencement
of each such additional term.
D. Tenant shall have no further option to extend the term of the Lease
other than the two (2) additional one (1) year terms herein provided.
E. Notwithstanding the fact that upon Tenant's exercise of the herein
options to extend the term of the Lease such extensions shall be
self-executing, as aforesaid, the parties shall promptly execute a lease
amendment reflecting each such additional term after Tenant exercises the
herein options. The execution of such lease amendment shall not be deemed to
waive any of the conditions to Tenant's exercise of its rights under this
Paragraph 1, unless otherwise specifically provided in such lease amendment.
2. TENANT'S EXPANSION OPTIONS
On the conditions (which conditions Landlord may waive, at its election, by
written notice to Tenant at any time) that Tenant is not in default of its
covenants and obligations under the Lease and that only Silicon Valley Bank,
itself is occupying the entirety of the premises then demised to Tenant, both
as of the time of option exercise and at the Term Commencement Date in respect
of each Expansion Area, as hereinafter defined, Tenant shall have the option to
lease the Expansion Areas, as hereinafter defined.
A. For the purposes hereof, the Expansion Areas shall be defined as
follows:
Expansion Area Location
-------------- --------
First Expansion Area: An area on the third (3rd) floor of the
Building, contiguous to the premises
initially demised by Tenant,
containing 1,243 square feet of Total
Rentable Area, substantially as shown
cross-hatched on Lease Plan, Exhibit
2, Sheet 2 dated June 19, 1995.
55
Second Expansion Area: An area on the third (3rd) floor of the
Building, containing all or a portion
of 5,075 square feet of Total Rentable
Area, substantially as shown hatched
on Lease Plan, Exhibit 2, Sheet 2
dated June 19, 1995.
B. EXERCISE OF RIGHTS TO EXPANSION AREA
(i) Tenant may exercise its option to lease each of the Expansion Areas by
giving written notice ("Expansion Notice") to Landlord on or before the
respective Notice Date, as hereinafter defined, in respect of such Expansion
Area. If Tenant fails timely to give such notice, Tenant shall have no further
right to lease such Expansion Area, time being of the essence of this Paragraph
2. Upon the timely giving of such notice, Landlord shall lease and demise to
Tenant, and Tenant shall hire and take from Landlord, such Expansion Area,
without the need for further act or deed by either party, for the term and upon
all of the same terms and conditions of this Lease, except as hereinafter set
forth.
(ii) If Tenant exercises its right to lease the First Expansion Area,
Tenant shall be required to demise the entirety of the First Expansion Area. If
Tenant leases the Second Expansion Area, Tenant shall have the right to lease
either the entirety of the Second Expansion Area or a portion of the Second
Expansion Area, at Tenant's election, subject to the following:
1. Tenant shall make such election in the Expansion Area Notice in
respect of the Second Expansion Area.
2. If Tenant fails to make such election in the Expansion Area Notice,
Tenant shall be deemed to have elected to lease the entirety of the
Second Expansion Area.
3. Tenant shall designate the proposed location of the Second Expansion
Area in the Expansion Area Notice, which location shall be subject to
Landlord's approval.
4. Landlord shall base its approval on Landlord's determination as to
whether the Second Expansion Area designated by Tenant and the balance
(i.e., the balance of
56
the Second Expansion Area not leased by Tenant) of the Second Expansion
Area are of marketable configuration.
5. If Landlord determines that either the Second Expansion Area
designated by Tenant or the balance of the Second Expansion Area is
not of marketable configuration, Landlord shall have the right to make
such adjustment to the location of the Second Expansion Area as
necessary to create areas of marketable configuration.
C. CONDITION OF TENANT'S EXERCISE
Notwithstanding anything to the contrary herein contained, in the
event that Tenant exercises its right to lease the Second Expansion Area
pursuant to this Paragraph 2, then the term of the Lease is respect of the
premises initially demised to Tenant under the Lease ("Original Premises"), and
the First Expansion Area, if Tenant timely and properly exercises its right to
lease the First Expansion Area, shall be automatically extended for an
additional period commencing as of the Termination Date set forth in Exhibit 1
and expiring as of the date ("Extended Termination Date") four (4) years after
the date of expiration of the initial term of the Lease. Said additional term
shall be on all of the same terms and conditions applicable to the Original
Premises, and to the First Expansion Area, as the case may be, during the
original term except that the Yearly Rent during such additional term shall be
based upon the Fair Market Rental Value, as defined in Paragraph of this Rider,
as of the commencement of such additional term, of the premises then demised to
Tenant; provided however that in no event shall the sum of Yearly Rent,
Operating Expense Excess and Tax Excess payable by Tenant for any
twelve-(12)-month period during such additional term be less than the sum of
Yearly Rent, Operating Expense Excess and Tax Excess payable by Tenant in
respect of the twelve-(12)-month period immediately preceding the commencement
of such additional term. In addition, in such event, Tenant's right to extend
the term of the Lease for two (1) additional one (1) year terms, pursuant to
Paragraph 1 of this Rider, shall be applicable after the expiration of the
Extended Termination Date.
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D. EXPIRATION DATES OF OTHER LEASES IN EXPANSION AREAS
(1) Landlord hereby agrees that if an Expansion Area is occupied by a
tenant ("Expansion Area Tenant") during the applicable Expiration Period, as
hereinafter defined, in respect of such Expansion Area, the expiration date of
the lease of such Expansion Area Tenant shall either (a) occur during the
applicable Expiration Period or (b) Landlord shall use its best efforts to
relocate the Expansion Area Tenant of the Expansion Area, or obtain an early
termination of the lease of such Expansion Area, to the end that the Expansion
Area shall be vacant, with respect to the First Expansion Area, during the
Expiration Period in respect of the First Expansion Area, or, with respect to
the Second Expansion Area, as of the last day of the Expiration Period in
respect of the Second Expansion Area:
Expansion Area Expiration Period
-------------- -----------------
First Expansion Area: Third (3rd) anniversary of the initial Term
Commencement Date through the date three years
and four (4) months after the initial Term
Commencement Date.
Second Expansion Area: On or before the fourth (4th) anniversary of the
initial Term Commencement Date.
E. NOTICE DATES
(1) The Notice Date in respect of the First Expansion Area shall be on
or after the date two (2) years and three (3) months after the initial Term
Commencement Date and on or before the date two (2) years and seven (7) months
after the initial Term Commencement Date.
(2) The Notice Date in respect of the Second Expansion Area shall be
the date four (4) years and three (3) months after the initial Term
Commencement Date.
F. LEASE PROVISIONS APPLYING TO EXPANSION AREAS
The leasing to Tenant of an Expansion Area shall be upon all the same
terms and conditions of the Lease except as follows:
(1) TERM COMMENCEMENT DATE
(a) The Term Commencement Date in respect of the First Expansion
Area shall be later of (x) the date nine (9) months after
58
Landlord receives Tenant's Expansion Notice in respect of the First Expansion
Area and (4) the date that the Expansion Area Tenant of the First Expansion
Area vacates the First Expansion Area.
(b) The Term Commencement Date in respect of the Second Expansion
Area shall be the later of (x) the fourth (4th) anniversary of the initial Term
Commencement Date and (y) the date that the Expansion Area Tenant of the Second
Expansion Area vacates the Second Expansion Area.
(2) TERMINATION DATE
(a) The Termination Date in respect of the First Expansion Area
shall be the Termination Date in respect of the premises initially demised to
Tenant, subject to extension in accordance with Paragraph 2(C) of this Rider.
(b) The Termination Date in respect of the Second Expansion Area
shall be the Extended Termination Date.
(3) YEARLY RENT
(a) The Yearly Rent payable in respect of the First Expansion Area
shall be equal to the same Yearly Rent rental rate applicable, from time to
time, to the premises initially demised to Tenant.
(b) The Yearly Rent payable in respect of the Second Expansion Area
shall be based upon the Fair Market Rental Value, as defined in Paragraph 3 of
this Rider, of the Second Expansion Area, as of the Term Commencement Date in
respect of the Second Expansion Area, provided however, that in no event shall
the Yearly Rent rental rate plus the rate per square foot of Total Rentable
Area of Tax Excess and Operating Expense Excess payable in respect of each the
Second Expansion Area be less than the sum, from time to time, of the Yearly
Rent rental rate plus the rate per square foot of Total Rentable Area of Tax
Excess and Operating Expense Excess applicable to the premises initially
demised to Tenant.
(3) CONDITION OF EXPANSION AREAS
Each Expansion Area shall be delivered by Landlord and accepted by
Tenant "as is", in its then (i.e. as of the Term Commencement Date in respect
of such Expansion Area), state of construction, finish and
59
decoration, without any obligation for preparation or construction of such
premises by Landlord for Tenant's occupancy and without any representation or
warranty as to the condition of the premises or the Building. In implementation
of the foregoing, Article 4 of the Lease shall have no force and effect in
respect of the Expansion Areas. Notwithstanding anything to the contrary herein
contained, in the event that Tenant exercises its right to lease both the First
Expansion Area and the Second Expansion Area, then Landlord shall, at
Landlord's cost, prior to the Term Commencement Date in respect of the Second
Expansion Area, create an internal connection through the firewall between the
First Expansion Area and the Second Expansion Area. In the event that Tenant
elects to lease less than the entirety of the Second Expansion Area, pursuant
to Paragraph 2(B)(ii) of the Rider, then Landlord shall, at Landlord's cost,
prior to the Term Commencement Date in respect of the Second Expansion Area,
construct a demising wall between the Second Expansion Area designated by
Tenant and the balance of the Second Expansion Area.
D. EXECUTION OF LEASE AMENDMENTS
Notwithstanding the fact that Tenant's exercise of the above-described
expansion options shall be self-executing, as aforesaid, the parties hereby
agree promptly to execute a lease amendment reflecting the addition of each
such Expansion Area, except that the Yearly Rent payable in respect of such
Expansion Area, the Operating Costs in the Base Year in respect of such
Expansion Area and the Tax Base in respect of such Expansion Area may not be as
set forth in such Amendment. Subsequently, after such Yearly Rent, Operating
Costs in the Base Year and Tax Base are determined, the parties shall execute a
written agreement confirming the same. The execution of such lease amendment
shall not be deemed to waive any of the conditions to Tenant's exercise of the
herein expansion options, unless otherwise specifically provided in such lease
amendment.
3. DEFINITION OF FAIR MARKET RENTAL VALUE
For the purposes of this Rider:
60
A. "Fair Market Rental Value" shall be computed as of the date in question
at the then current annual rental charge (i.e., the sum of Yearly Rent plus
escalation and other charges), including provisions for subsequent increases
and other adjustments for leases or agreements to lease then currently being
negotiated, or executed in comparable space located in the Building, or if no
leases or agreements to lease are then currently being negotiated or executed
in the Building, the Fair Market Rental Value shall be determined by reference
to new leases then currently being negotiated or executed for comparable space
located in Wellesley Office Park. In determining Fair Market Rental Value, the
following factors, among others, shall be taken into account and given effect:
size, location of premises, lease term, condition of building, and services
provided by the landlord.
B. Notwithstanding anything to the contrary herein contained, the parties
hereby agree that upon the determination of the Fair Market Rental Value,
Landlord shall have the right, exercisable by written notice to Tenant on or
before the time that Landlord gives Tenant its initial designation of Fair
Market Rental Value:
(1) to change Operating Costs in the Base Year as stated on Exhibit 1
from the amount stated on Exhibit 1 to an amount equal to the
actual amount of Operating Costs for the immediately preceding
Operating Year; and
(2) to change the Tax Base as stated on Exhibit 1 from the amount
stated on Exhibit 1 to an amount equal to the actual amount of
Taxes for the immediately preceding fiscal/tax year for which
Landlord has actual tax data.
If Landlord shall exercise such right, the amount of Yearly Rent payable
hereunder shall be commensurately adjusted to reflect such change in Operating
Costs in the Base Year and in Tax Base.
C. DISPUTE AS TO FAIR MARKET RENTAL VALUE
Landlord shall initially designate Fair Market Rental Value and
Landlord shall furnish data in support of such designation. If Tenant disagrees
with Landlord's designation of a Fair Market Rental Value, Tenant
61
shall have the right, by written notice given within thirty (30) days after
Tenant has been notified of Landlord's designation, to submit such Fair Market
Rental Value to arbitration. Fair Market Rental Value shall be submitted to
arbitration as follows: Fair Market Rental Value shall be determined by
impartial arbitrators, one to be chosen by the Landlord, one to be chosen by
Tenant, and a third to be selected, if necessary, as below provided. The
unanimous written decision of the two first chosen, without selection and
participation of a third arbitrator, or otherwise, the written decision of a
majority of three arbitrators chosen and selected as aforesaid, shall be
conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each
notify the other of its chosen arbitrator within ten (10) days following the
call for arbitration and, unless such two arbitrators shall have reached a
unanimous decision within thirty (30) days after their designation, they shall
so notify the President of the Boston Bar Association (or such organization as
may succeed to said Boston Bar Association) and request him to select an
impartial third arbitrator, who shall be an office building owner, a real
estate counsellor or a broker dealing with like types of properties, to
determine Fair Market Rental Value as herein defined. Such third arbitrator and
the first two chosen shall, subject to commercial arbitration rules of the
American Arbitration Association, hear the parties and their evidence and
render their decision within thirty (30) days following the conclusion of such
hearing and notify Landlord and Tenant thereof. Landlord and Tenant shall bear
the expense of the third arbitrator (if any) equally. The fifth (5th)
grammatical sentence of Article 29.5 of the Lease is hereby incorporated by
reference in this Subparagraph C. If the dispute between the parties as to a
Fair Market Rental Value has not been resolved before the commencement of
Tenant's obligation to pay rent based upon such Fair Market Rental Value, then
Tenant shall pay Yearly Rent and other charges under the Lease in respect of
the premises in question based upon the Fair Market Rental Value designated by
Landlord until either the agreement of the parties as to the Fair Market Rental
Value, or the decision of the arbitrators, as the case may be, at which
62
time Tenant shall pay any underpayment of rent and other charges to Landlord,
or Landlord shall refund any overpayment of rent and other charges to Tenant.