LEASE AGREEMENT
This Lease Agreement (the "Lease") is entered into as of the 3rd day
of October, 1998 by and between WAYNE REALTY TRUST, ("Landlord") established
under Declaration of Trust, dated October 3, 1968, as Document No. 33672 in
Book 4547, Page 146 ("Landlord") with principal place of business at 34
Washington Street, Suite DEC 7, Wellesley Hills, Massachusetts, 02481-1909,
and DIRECT HIT TECHNOLOGIES, INC. ("Tenant") with a current address at 386
Washington Street, Playhouse Square, Wellesley Hills, Massachusetts
02481-6218 and after the commencement of the Lease term, with a business
address at the Demised Premises (as defined below).
WHEREAS, Landlord owns the office building located at 888 WORCESTER
STREET, WELLESLEY, MASSACHUSETTS 02482 (the "Building"); and
WHEREAS, Tenant, which is duly authorized to conduct business in the
Commonwealth of Massachusetts, desires to lease the portion of the Building
identified generally approximately 8,805 RENTABLE SQUARE FEET on the third floor
(the common area factor within the Building is 15% rendering the suite 7,500
usable square feet), Suite 340, of the Building and outlined in red on the floor
plan marked Exhibit "A" and attached hereto and made a part hereof.
NOW THEREFORE, in consideration of the Premises and the mutual
covenants set forth herein, Landlord hereby leases the portion of the Building
(hereinafter referred to as the "Demised Premises") together with rights to
certain common areas of the Building and of the land on which the Building is
located (hereinafter the combination of the "Demised Premises" and common area
will be referred to as the "Premises") pursuant to the following terms and
conditions:
I. TERM
This Lease shall be for a term of Three (3) Years commencing on the 1st
day of January, 1999 and ending on the 31st day of December, 2001.
II. RENTAL
Beginning on January 1, 1999, Tenant agrees to pay, without notice, offset,
demand or deduction, rent according to the schedule below payable in advance in
equal monthly installments on or before the first day of each and every calendar
month during the term hereof, and at the same rate for any fraction of a month
occurring at the beginning or end of the term hereof, at Landlord's address as
set forth above, or to such other place as Landlord may designate in writing.
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PERIOD ANNUAL MONTHLY
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January 1, 1999- March 31, 2000 $145,282.50 $12,106.88
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April 1, 2000 - December 31, 2001 $202,515.00 $16,876.25
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Upon execution of this Lease Tenant agrees to pay to Landlord,
$12,106.88, representing rent for the period January 1, 1999 through January 31,
1999.
SUBLEASE AGREEMENT
AGREEMENT made as of the ____ day of March, 1999, by and between Direct Hit
Technologies, Inc. ("Sublessor") and Capella, Inc. ("Sublessee")
WITNESSETH:
WHEREAS, Sublessor has leased from Wellplay Associated Limited Partnership
("Major Lessor") office space known as Suite 1, Second Floor, 386 Washington
Street in Wellesley, Massachusetts (the "Premises"), under an indenture of lease
dated April 30, 1998 (hereinafter referred to as the "the Major Lease"), copies
of said indenture being attached hereto as Exhibit "A" and made a part hereof;
and
WHEREAS, Sublessee is desirous of subleasing the entire Premises demised
under the Major Lease at a base rent of $18.00 per square foot from April 1,
1999 through March 31, 2000; $20.00 per square foot from April 1, 2000 through
September 30, 2000; and $22.00 per square foot from October 1, 2000 through
October 31, 2001 and otherwise on substantially the same terms and conditions as
the major Lease; and
WHEREAS, Sublessor is willing to sublet said area on that basis;
NOW, THEREFORE, for good and valuable consideration the parties agree as
follows:
1. Sublessor hereby sublets to Sublessee Suite 1 of the Second floor of the
building numbered 386 on Washington Street in Wellesley, Massachusetts, shown
outlined in red on Exhibit B of the Major Lease attached hereto and made a part
hereof, containing approximately 2,285 rentable square feet, said figure
including a common area factor, (the "Subleased Premises") for the term of 31
calendar months beginning at 12:01 a.m. E.S.T. on April 1, 1999 and expiring at
12 midnight E.S.T. on October 31, 2001.
2. Sublessee shall pay to Sublessor as base rent of (a) the annual amount
of $41,130.00 Dollars, payable in advance in equal monthly installments of
$3428.00 from April 1, 1999 through March 31, 2000; (b) the annual amount of
$45,700.00, payable in advance in equal Monthly installments of $3808.33 from
April 1, 2000 through September 30, 2000; and (c) the annual amount of
$50,270.00 payable in advance in equal monthly installments of $4189.00 from
October 1, 2000 through October 31, 2001, the first installments to be paid on
the execution of this Sublease and regular monthly installments to be paid
during the term of this Sublease on the first day of each month commencing May
1, 1999. Sublessee shall also pay as additional rent its share of any operating
cost escalation as may become the responsibility of Sublessor in accordance with
the provisions of the Major Lease to which this Sublease is subject, it being
understood and agreed that Sublessee's share of such operating cost escalation
shall be one hundred percent (100%) of the amount for which Sublessor is
responsible. Sublessee shall pay the amounts of such additional rent within ten
(10) days of the date Sublessor is required by the Major Lease to pay said
amounts. Sublessee shall also pay directly to any utility company all sums due
and owing for utility services provided to and used by sublessee at the
Premises.
3. Sublessee shall also pay to Sublessor a security Deposit equal to two
months rent calculated at $22.00 per square foot (or a total of $8378.00). This
security deposit shall be paid on the execution of this Sublease. With respect
tot he Security Deposit, all terms, conditions, and covenants of Article XVII of
the Major Lease shall be made part hereof and should govern, with Sublessor
herein being considered as Landlord and Sublessee herein being considered as
Tenant.
4. With respect to the Premises, except for the provisions of paragraph 5
below, all terms, covenants and conditions of the Major Lease are made a part
hereof, Sublessor herein being considered as Lessor and Sublessee herein being
considered as Lessee, and subject to paragraph 5 below, this Sublease shall
operate as though it were an assignment pro tanto.
5. Sublessee hereby accepts the Premises "as is" and in their present
condition.
6. Notwithstanding the foregoing, it is agreed that the Premises shall be
used by Sublessee for general office purposes and training classes and for no
other purposes.
7. Major Lessor has agreed to provide certain services and to perform
other obligations under the Major Lease and upon reasonable notice from
Sublessee of the failure of Major Lessor to perform any such obligation or
provide any such service, Sublessor will promptly and diligently undertake to
enforce its rights under the major Lease; provided, however, that the method
and manner of seeking enforcement thereof shall be solely within the
judgement and determination of Sublessor. Notwithstanding anything herein to
the contrary, Sublessor shall not be liable to Sublessee for money damages on
account of the failure of Major Lessor to perform any such obligations or
provide any such service, nor shall any such failure constitute a
constructive eviction of Sublessee.
8. Sublessee shall not do or permit anything to be done which would cause
the Major Lease to be terminated by Major Lessor or forfeited. Sublessee hereby
indemnifies and holds Sublessor harmless from and against all damages of any
kind which Sublessor may suffer by reason of any breach or default hereunder by
Sublessee, including termination or forfeiture of the major Lease, and from and
against all other liabilities, claims and damages arising during the term in the
Premises or out of or in connection with the use and occupancy of the Premises
by Sublessee, except to the extent Sublessor is indemnified by its insurance
carriers or by Major Lessor for such liabilities, claims or damages.
9. Sublessee shall not sublet the Premises, in whole or in part, nor assign
the Sublease nor permit any interest of Sublessee in this Sublease to become
vested in any third party, without the prior written consent of Sublessor and
Major Lessor in each instance.
10. Sublessee represents that with the exception of ______________, it has
not dealt with a real estate broker with respect to the Premises and agrees to
indemnify Sublessor from any claim for a brokerage commission in connection with
this Sublease except for any commission to be paid to ______________.
11. All prior undertakings and agreements between the parties are merged
within this Sublease, which alone fully and completely sets forth the
understanding of the parties with respect to the Premises, and this Sublease may
not be changed or terminated orally or in any manner other than by written
agreements signed by the parties.
12. Any notice or demand from Sublessor to Sublessee or from Sublessee to
Sublessor shall be deemed duly served if mailed by certified mail addressed, if
to Sublessee, Capella Systems, 58 Waverly Avenue, Newton, Massachusetts 02158,
attn: John Hubbard or if Sublessor, Direct Hit Technologies, Inc., 888 Worcester
Road, Suite 340, Wellesley, Massachusetts 02482 or such place as Sublessor may
designate in writing in the future, and the customary certified mail receipt
shall be conclusive evidence of such service.
WITNESS the execution in duplicate under seal the day and year first above
written.
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Capella, Inc. by John Hubbard, President
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Direct Hit Technologies, Inc. by Michael Cassidy
Foregoing Sublease consented to:
By:
II. RENTAL (CONTINUED)
If Tenant fails to pay all or any part of the monthly rent provided for
in this Article II within seven (7) days of the date on which it is due, Tenant
shall also pay a late charge equal to four percent (4%) of the unpaid rent to
cover administrative fees of collection; provided, however, that Tenant shall
not be required to pay such late charge the first time in any lease year (a
lease year being each consecutive 12-month period between the term of this Lease
commencing on the commencement date of this Lease) that Rent is not paid on or
before the date on which it is due as long as such late payment is made within
fourteen (14) days after the date it was due. At the beginning of each month
after such rent was due, if all or any part of the monthly rent is still unpaid,
Tenant shall pay an additional late charge equal to four percent (4%) of the
unpaid rent. Notwithstanding anything to the contrary, the monthly rent is due
and payable in advance on or before the first day of each and every calendar
month during the term hereof and the above noted seven day period before a late
charge is assessed is not intended to be a grace period.
Landlord's acceptance of a lesser sum than the Rent then due shall in no
event be deemed to be other than a partial installment of such rent due, and an
endorsement or statement on any check or any letter accompanying any check or
payment as rent shall in no event be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such installment or pursue any other remedy in this
Lease provided.
III. USE OF PREMISES
A. PERMITTED USES AND ACCESS. The Premises are to be used only for
general office purposes. Landlord services are provided between the ordinary
business hours of 7:00 AM and 6:00 PM, Monday through Friday, excluding
holidays. Notwithstanding anything herein to the contrary, Tenant shall have use
and access to the Premises on a seven day per week, twenty-four hour per day
basis. Tenant agrees that Tenant shall be responsible for obtaining and
maintaining all necessary licenses, permits and approvals to carry on the
permitted uses described above.
Tenant agrees that its density of occupation shall not exceed one
employee per 200 square feet of floor space in any one given area. Total density
of occupation for the total leased area shall not exceed five (5) people per
1000 square feet. Landlord acknowledges that Tenant may from time to time exceed
the above density of occupation, and in the event this density of occupation is
exceeded, Landlord can not warrant proper heating and cooling of the Demised
Premises and can not warrant that there will be any additional parking spaces
available for Tenant beyond the parking allocation described in Article VI of
this Lease. Tenant shall not place a load upon any floor in the Demised Premises
exceeding a floor load per square foot capacity of Seventy Five pounds per
square foot (75 lbs./sq.ft.) of area; and not move any safe, vault or other
heavy equipment in, about or out of the Demised Premises except in such manner
and at such time as the Landlord shall in each instance authorize. Tenant's
machines and mechanical equipment shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient to absorb or prevent vibration or noise
that may be transmitted to the Building structure.
Tenant further agrees not to use the Premises to carry on, or permit
upon the Premises any offensive, noisy or dangerous trade, business manufacture
or occupation, or any nuisance, or allow the Premises to be used for any purpose
that will increase the rate of insurance thereon over the rate charged by reason
of a use of the character herein permitted without Landlord's prior written
consent and without compensating Landlord for such increase; and nothing in
violation of any present or future federal, state or local law or ordinance
regulating use of the Premises will be done or permitted by the Tenant in or
upon said Premises or any part thereof
Tenant shall not commit or permit any waste in or with respect to the
Premises, nor generate, store or dispose of any oil, toxic substances, hazardous
wastes, or hazardous materials (each a, "Hazardous Material"), or permit the
same in or on the Premises or any parking areas provided for under this Lease.
Tenant shall not dump, flush or in any way introduce any Hazardous Materials
into septic, sewage or other waste disposal systems serving
the Premises or any parking areas provided for under this Lease. Tenant will
defend, hold harmless and indemnify Landlord and its successors and assigns
against all claims, loss, cost, and expenses including attorneys' fees, incurred
as a result of any contamination of the Premise with Hazardous Materials by
Tenant or Tenant's contractors, licensees, invitees, agents, servants or
employees. This provision shall survive the termination of this Lease.
B. HEATING AND AIR CONDITIONING. During normal business days and hours
of 7:00AM and 6:00PM, Monday through Friday, excluding holidays, Landlord shall
provide a year round heating, ventilation and air conditioning ("HVAC") system
capable of producing and maintaining the following conditions in areas where
there are no more than one person for every two hundred square feet and no
equipment employed by tenants which generates excessive temperatures:
Summer: Provide a temperature drop of 20 degrees Fahrenheit and
relative humidity of 50% when the outside conditions do
not exceed 95 degrees Fahrenheit.
Winter: Provide a temperature inside of 68 degrees Fahrenheit when
the outside temperature does not fall below 0 degrees
Fahrenheit with a greater than 15 MPH wind prevailing.
The heating and air conditioning systems shall be thermostatically
controlled and zoned so as to automatically maintain preset temperature.
Temperatures within a zone shall not vary more than 4 degrees Fahrenheit from
the thermostatic setting.
If Tenant intends to use the Demised Premises during nights and/or
weekends and desires additional HVAC service for said non-ordinary business
hours, Tenant must make special arrangements for such additional HVAC service
with the Landlord during ordinary business hours at least twenty four (24) hours
in advance and Tenant agrees to pay a fee which reflects a reasonable estimate
of the extraordinary consumption of utilities which may be occasioned thereby.
As of the commencement date of this Lease, Landlord and Tenant agree that the
current reasonable estimate for the extra HVAC service is thirty dollars
($30.00) per hour for a minimum period of six (6) hours. This estimated cost is
subject to increases over the term of the Lease based upon increased cost for
utilities.
C. ELECTRICITY. Tenant's use of electrical energy in the Demised
Premises shall not at any time exceed the capacity of any of the electrical
conductors and equipment in or otherwise serving the Demised Premises. In order
to insure that such capacity is not exceeded, and to avert possible adverse
effect upon the Building, Tenant shall give notice to Landlord whenever it shall
connect to the Building's electrical distribution system any fixtures,
appliances or equipment other than a reasonable quantity of lamps, personal
computers, printers, typewriters, copiers, fax machines and similar office
machines for standard office type uses.
Any additional feeders or risers to supply Tenant's electrical
requirements other than those set forth in EXHIBIT "A", and all other equipment
proper and necessary in connection with such feeders and risers shall be
installed by Landlord upon Tenant's request, at the sole cost and expense of
Tenant, provided that, in Landlord's reasonable judgment, such additional
feeders, risers or dedicated circuits are permissible and will not cause or
create danger or injury to the Building or cause or create a dangerous condition
or unreasonably interfere with the other Tenants of the Building.
D. RULES AND REGULATIONS. Tenant agrees to comply with all rules and
regulations Promulgated by Landlord from time to time for the operation of the
Building including, but not limited to, those currently adopted, as shown on
Exhibit "C" attached hereto and uniformly enforced to all tenants in the
building.
IV. TAXES, UTILITIES AND JANITORIAL SERVICES
A. LANDLORD'S RESPONSIBILITY. Except as provided in Article V hereof,
Landlord agrees to pay all real estate taxes and assessments levied against the
Premises, provided, however, Landlord's failure to make such
payments shall not constitute a default by Landlord hereunder unless such
failure causes Tenant to be no longer able to use the Premises for the Permitted
Uses, and at its own cost and expense to furnish the following services and
utilities during the ordinary business hours described above, in Article III:
1. Original (and replacement) installation of lamps, bulbs,
ballasts, and starters in electrical light fixtures.
2. Upkeep of grounds and other common area, and removal of snow and
ice from parking areas and sidewalks.
3. Janitorial services in accordance with Landlord's instruction
sheet; a copy of which is attached hereto and made a part hereof
and marked Exhibit "B". Tenant from time to time will have boxes
from the delivery of office supplies (i.e., paper, files, etc.)
which it will break down and Landlord will removed in addition to
its nightly emptying of office waste receptacles.
4. Electric current for lights, ordinary business machines and air
conditioning as detailed in Article III of the Lease, paid for by
Tenant directly to the utility company as detailed in Article
IV.B. of the Lease.
5. Heat of the Demised Premises as detailed in Article III of the
Lease.
6. Water and Sewer for all bathrooms, kitchenettes and drinking
fountains within the Building.
Landlord does not warrant that any services supplied by Landlord will
not be interrupted. Services may be interrupted because of accidents, repairs,
alterations, improvements or any reason beyond the reasonable control of
Landlord. Except as noted below, no interruption of service shall:
a. Be considered an eviction or disturbance of Tenant's use and
possession of the Demised Premises;
b. Make Landlord liable to Tenant for damages;
c. Entitle Tenant to an abatement of rent; or
d. Relieve Tenant from performing Tenant's obligations under this
Lease.
B. TENANT'S RESPONSIBILITY.
1. It is understood that any cardboard boxes, large amounts of trash
or other items not considered routine office trash will be
promptly removed from the Premises by Tenant at Tenant's expense
in accordance with all applicable legal requirements. Tenant
shall not allow any large amounts of trash to accumulate.
2. Tenant agrees to assume complete financial responsibility for
electric meter #84181286, under Tenant's name, representing
charges for provided overheat lighting, wall plugs and
supplementary air conditioning unit for the Demised Premises
during the term hereof.
3. Personal Property Tax to city or town.
V. ESCALATIONS
A. OPERATING EXPENSES (EXCLUDING REAL ESTATE TAXES).
The basic rental, outlined in Article II hereunder, includes the 1997
actual per-square-foot costs being paid by Landlord to operate the Building, of
which the Demised Premises forms a part. The current per-square-foot costs are
outlined in EXHIBIT "D" attached hereto.
If during the term of this Lease, commencing January 1, 2000, the total
of the per-square-foot operating costs increases over that set forth in EXHIBIT
"D", Tenant agrees to pay its proportionate share of such increase (the
"Operating Increase"). Tenant's proportionate share shall be determined by
multiplying the Operating Increase by the Demised Premises Fraction
(7,500/31,755). Landlord may make a reasonable estimate of the expected
per-square-foot Operating Increase, and may bill Tenant for its proportionate
share thereof as additional monthly rental hereunder.
Landlord will render a yearly accounting of the actual square foot costs
incurred, and Tenant agrees to pay any shortfall between Tenant's estimated
payments made and the total square foot costs incurred by Landlord. In the event
the total per-square-foot costs incurred by Landlord prove to be less than the
amount estimated by
Landlord and paid by Tenant, then Landlord shall refund any overpayment to
Tenant by either applying, at Landlord's option, any overpayment to Tenant's
future estimated payments or by lump sum refund.
B. REAL ESTATE TAXES.
The basic rental, outlined in Article II hereunder, includes the 1997
actual per-square-foot real estate taxes currently paid by the Landlord for the
Building, of which the Demised Premises forms a part. This per-square-foot real
estate tax is outlined in Exhibit "D".
If, in any real estate tax billing period or portion thereof during the
term of this Lease, commencing January 1, 2000, the real estate taxes levied
against the Building, on an annual basis, increase over those shown on EXHIBIT
"D" Tenant agrees to pay its proportionate share of the increase in said real
estate taxes (the "Tax Increase"). Tenants proportionate share shall be
determined by multiplying the Tax Increase by the Demised Premises Fraction
(7,500/31,755), defined above. Landlord may make a reasonable estimate of the
expected per-square-foot Tax Increase and may bill Tenant for its proportionate
share as additional monthly rental hereunder.
Landlord will render a yearly accounting of the actual per-square-foot real
estate taxes incurred, and Tenant agrees to pay any shortfall between Tenant's
estimated payments made and the real estate taxes incurred by Landlord.
C. PAYMENT OF ESCALATIONS.
Tenant is obligated to pay such estimated and actual cost increase referred
to in Sections A and B above, upon receipt of Landlord's billing or notice of
same. Landlord shall furnish Tenant with a statement which sets forth, in
reasonable detail, the basis for escalation.
VI. SIGNS AND PARKING
Landlord agrees to supply and install identifying signs for Tenant
similar to those employed for other Tenants in the Building, at the main
entrances to the Building and to the Demised Premises. Tenant shall in no event
place any signs on the exterior or interior of the Building, or within the
Demised Premises which will be visible from the exterior of the Building.
Tenant, its employees and visitors, shall be allowed to use the general
parking areas designated for the Building in common with others entitled
thereto, in accordance to the following parking ratio. The parking ratio for the
Building is four (4) unassigned parking spaces per 1,000 square feet rented.
VII. MAINTENANCE, REPAIR AND SURRENDER
A. Landlord agrees to maintain in good condition and repair the roof,
foundations, structural components, common areas, HVAC systems, plumbing in
the common-non areas, and windows of the Premises. Landlord shall not be
required to make any such repairs where same were caused or taken by any acts
or omission or negligence of Tenant its agents, invitees, licensees, visitors,
or contractors.
B. Tenant agrees that during the initial term of this Lease or any
extension thereof, and for such further time as Tenant may hold the Demised
Premises or any part thereof, it will:
a. Keep the Demised Premises and the improvements therein in such
repair, order and condition as the same are in at the
commencement of the term or may be put in during the continuation
thereof, reasonable use and damage by fire or Other unavoidable
casualty alone excepted;
b. Not cause the Demised Premises to be overloaded, damaged or
defaced, reasonable use and wear and damage by fire or other
unavoidable casualty alone excepted; and
c. At the expiration or other termination of the Lease, yield up the
Demised Premises and all keys, lock, Landlord's fixtures
connected therewith, and all erections and additions thereon made
to or upon the Demised Premises with the consent of Landlord,
unless otherwise directed by Landlord, broom clean in good
repair, order and condition in all respects, reasonable wear and
use thereof and damage by fire or other unavoidable casualty
alone excepted.
VIII. ACCESS
Landlord shall have the right to enter into and upon the Demised
Premises or any part thereof, at all reasonable hours, for the purposes of (a)
examining the same, (b) making such repairs or alterations therein as may be
necessary provided that reasonable efforts be made to avoid undue interference
with the conduct of Tenant's business, (c) showing the Demised Premises to
prospective purchasers, mortgagees and the like; and (d) during the final six
(6) months of the term or any extension thereof, showing the Demised Premises
to prospective tenants.
As appurtenant to the Demised Premises, Tenant shall have the right to
use all elevators, hallways, stairways and such other common areas as are
necessary for entrance to and exit from the Demised Premises and the Premises,
together with common driveways giving access to parking areas.
IX SUBLEASE AND CHANGE OF AUTHORIZED SIGNATORY
Tenant may sublet the Demised Premises, in whole or in part, only to
any wholly-owned subsidiary, or to any corporation (a "parent corporation") of
which Tenant is a wholly-owned subsidiary, or to any wholly-owned subsidiary
of a parent corporation now or hereafter organized, provided that Tenant shall
provide Landlord with prior written notice of such sublet and provided further
that Tenant shall remain liable hereunder.
If, however, Tenant desires to sublet the whole or any part of the
Demised Premises to any other party, Tenant shall first: (a) pay Landlord, in
advance, a nonrefundable processing fee for the review of the proposed sublet in
the amount of TWO THOUSAND FIVE HUNDRED DOLLARS (S2,500.00) and (b) provide
Landlord with written data pertaining to the proposed subtenant, including but
not limited to the name of the proposed subtenant and its principle address and
key officers, trustees or other persons holding control; financial statements
for the proposed subtenant; a statement of the business activities of the
proposed subtenant and its proposed use of the Demised Premises; proposed floor
plans for the Demised Premises (if changes are requested); the proposed terms
and form of the sublease agreement; the number of persons who will occupy the
Demised Premises pursuant to the proposed sublease; and such other items as
Landlord may reasonably request. Landlord shall have the option of (i)
consenting to the proposed sublease in writing, (ii) rejecting such proposed
sublease and providing Tenant with reasonable grounds therefor, or (iii)
canceling this Lease in writing as it applies to the area proposed to be
subleased and relieving Tenant of any further liability hereunder as to such
area.
Except for a written cancellation pursuant to item (iii) above, Tenant
shall in all events remain fully liable under this Lease. Any subtenants shall
also become directly liable to Landlord for all obligations of Tenant under this
Lease without relieving Tenant of any liability; provided, however, that
Landlord shall have the right to require that all payments made under this Lease
continue to be made by Tenant. In no event shall Tenant have any right to
assign, directly or indirectly, its rights or obligations under this Lease.
Reasonable grounds for Landlord's rejection of a proposed sublease include,
without implied limitations, the following: (a) the proposed subtenant's
financial responsibility does not meet the same criteria Landlord used to select
tenants for the Building, (b) the proposed subtenant's business is not suitable
for the Building considering the businesses of other tenants in the Building and
the Building's prestige or image, or (c) the proposed use is inconsistent with
the permitted uses described in Article III hereof Consent to one sublease
pursuant to the terms hereof shall not waive the requirements of this provision
with respect to subsequent subleases, and all subsequent subleases shall be
subject to all terms and provisions contained herein.
If Landlord consents to the proposed sublease in writing and if the
terms of the sublease are such that the subtenant is paying Tenant MORE RENT
than the rent detailed in Article II of the primary Lease between Landlord and
Tenant, then Tenant will be required to pay to Landlord as additional rent the
difference between the rent the subtenant is paying to Tenant and the rent that
Tenant is obligated to pay to Landlord under the terms of this Lease.
If, during the term of this Lease, or any extension hereunder, Tenant
shall, through sale or transfer, diminish or liquidate its ownership or
authority to the extent that the authorized signatory becomes, or will become,
invalid or null and void with respect to this Lease or any future agreement
between Landlord and Tenant, then Tenant shall notify Landlord in writing of
such sale or transfer and shall supply to Landlord information (including, but
not limited to, financial statements, names of principals, nature of business,
etc.) regarding the sale or transfer of Tenant's ownership or authority
whereupon, Landlord and Tenant agree to amend said Lease to incorporate Tenant's
change of ownership or authorized signatory. Should Tenant fail to provide said
notice and information required by Landlord, then Landlord and Tenant agree that
the provisions and rights outlined in this Article IX shall apply to any
transfer or diminution of the ownership or authority of the authorized signatory
of Tenant hereunder.
X. SUBORDINATION TO MORTGAGES
This Lease shall be subject and subordinate to the lien(s) of any
current mortgage or mortgages of record and to any ground leases of the
Premises, as well as any such mortgage or mortgages or ground leases which may
hereafter be recorded, against the real estate of which the Demised Premises are
a part, and the recording of any such mortgage or mortgages or ground leases
shall be prior in lien and interest to this Lease irrespective of the date of
recording. Tenant agrees to execute any instrument which Landlord or any
mortgagee or ground lessor may deem necessary to further effect the
subordination of this Lease to any such mortgage or mortgages or ground leases,
provided, however, that this subordination is subject to the condition that
notwithstanding any default in any such mortgage or ground lease or any
foreclosure thereof or default or termination thereunder, this Lease shall
remain in full force and effect and Tenant shall be permitted to remain in quiet
and peaceful possession of the Demised Premises throughout the term hereof and
any extension, so long as Tenant shall not be in default under this Lease.
Tenant shall within ten (10) business days after receipt of written
request therefor, execute and deliver to Landlord an Estoppel Certificate,
certifying as to (i) the accuracy of the Lease, (ii) the commencement and
termination dates of the Lease, (iii) the Lease being unmodified and in full
effect, or in full effect as modified, stating the date and nature of any
modification, (iv) whether Landlord is in default under the Lease or whether
Tenant has any claims, demand, offsets or other rights against Landlord and, if
so, specifying the default, claim, offset demand or right, and (v) any other
reasonably ascertainable fact covered by the Lease. Such Estoppel Certificate
may be relied upon by Landlord and any third party with which Landlord is
dealing, and Tenant's failure to execute and deliver such Estoppel Certificate
shall be a default hereunder.
XI. INSURANCE AGAINST FIRE AND OTHER PERILS
Landlord shall keep the Building in which the Demised Premises are
located (including all improvements and alterations made thereto by Landlord or
Tenant) insured against damage or destruction by fire, and other perils commonly
covered under an extended coverage endorsement to the extent of the full
insurable value thereof, subject to customary deductibles. Landlord shall be
responsible for determining the amount of fire and extended coverage insurance
to be maintained. Such insurance shall be maintained for the protection of both
Landlord and Tenant and in case of loss or damage, the proceeds thereof shall be
applied on account of the obligation of Landlord to repair and/or rebuild the
Premises to the extent required under the provisions of Article XIV hereof.
Landlord may maintain such insurance under a blanket policy or policies.
Tenant shall insure its furnishing, fixtures, equipment and partitions
against fire, vandalism and other perils with "all-risks" insurance in an amount
equal to 100% of the replacement cost thereof. Tenant shall provide Landlord
with a certificate evidencing such insurance and any renewals thereof
XII. TENANT'S PUBLIC LIABILITY AND PROPERTY INSURANCE
Tenant shall, at all times, while it occupies the Demised Premises keep
in full force and effect, at its own cost, a policy or policies of general
public liability and property damage insurance with respect to the Demised
Premises, written by a company or companies qualified to do business in
Massachusetts, in which the limits of (i) public liability shall be not less
than $500,000/$500,000 and (ii) property damage liability shall be not less than
$1,000,000. The policy or policies shall name Landlord and its property manager
as additional insured and shall contain a clause that such insurance cannot be
canceled or changed without first giving Landlord thirty (30) days prior written
notice. Tenant may maintain such insurance under a blanket policy or policies.
Tenant shall furnish Landlord with certificates evidencing such insurance and
any renewals thereof.
XIII. INDEMNIFICATION
Tenant shall save Landlord harmless and indemnified from all injury,
death, loss, claims or damage to any person or property while on the Premises
(unless caused by the negligence or willful misconduct of Landlord, his
employees, agents, licensees or contractors), and from and against all injury,
death, loss, claim or damage to any person or property wherever occurring
occasioned by any act, neglect or default of Tenant. In case Landlord shall,
without fault on its part, be made a party to any litigation commenced by or
against Tenant, then Tenant shall protect and hold Landlord harmless and pay all
cost, expenses and reasonable attorney's fees and expenses that may be incurred
or paid by Landlord in enforcing the covenants and agreements in this Lease.
Tenant agrees that Landlord shall not be responsible or liable for any
loss or damage to any personal property belonging to Tenant, its employees or
invitees, unless such loss or damage is caused through the negligence or willful
misconduct of Landlord, his employees, agents, licensees or contractors.
XIV. FIRE, CASUALTY OR TAKING
If the Premises or any part thereof are damaged or destroyed in whole
or in part by fire or other casualty, or demolished by the order or action of
any public authority, this Lease shall, except as other wise provided herein,
remain in full force and effect and Landlord shall, to the extent of insurance
proceeds actually received by Landlord on account of such casualty, promptly and
with dispatch, repair and rebuild the Premises so as to restore them to their
condition before such damage, destruction or demolition, provided that Landlord
shall not be responsible for delays in such reconstruction and restoration for
causes beyond Landlord's control. There shall be an abatement of rent equitably
proportional to the loss of use of the Demised Premises because of such damage,
destruction or demolition, and such abatement shall commence as of the time of
the damage, destruction or demolition and continue until the completion of the
reconstruction and restoration. If the Building of which the Demised Premises
are a part is destroyed or damaged by fire or other casualty within the scope of
Landlord's fire and extended coverage insurance so that more than forty percent
(40%) of the Demised Premises are rendered untenantable, or if the Building is
destroyed or damaged from any other cause so that more than sixty percent (60%)
of the Building are rendered untenantable, either party may, at its own
election, by written notice to the other party, within sixty (60) days after
such destruction terminate this Lease.
Notwithstanding the foregoing, Landlord shall have no obligation to
restore the Premises following a casualty occurring in the last nine (9) months
of the term of this Lease, or to incur restoration costs in excess of the actual
amount of insurance proceeds made available to Landlord by its insurer and not
retained by a mortgagee or ground lessor of Landlord. In the event Landlord
reasonably determines that actual insurance proceeds will be insufficient to
cover the cost of restoration, Landlord shall have the option of (a) terminating
this Lease by 30 days written notice to Tenant or (b) giving Tenant the option
of (x) paying for the uninsured portion of the restoration costs or (y)
terminating this Lease by 30 days written notice to Landlord.
If the whole of the Premises is taken by condemnation, then this Lease
shall terminate as of the date of such taking. If forty percent (40%) or more of
the Premises is taken by condemnation, Tenant may terminate this Lease by giving
written notice to Landlord within thirty (30) days after receipt of notice of
such taking. If the Lease is terminated by reason of taking or condemnation, the
rent from the date of the taking shall totally abate; if the
Lease is not so terminated, the rent shall abate proportionately according to
the area of the floor space of the Demised Premises which is taken by
condemnation, from the time Tenant vacates the condemned area.
Tenant assigns and grants to Landlord all right, title and interest,
present or prospective, in any award due or made because of a taking by
condemnation, except any award expressly designated for relocation of Tenant.
XV. ALTERATIONS
Tenant shall have the right, at its own expense, to decorate and
redecorate the Demised Premises and to make any nonstructural alterations and
changes it shall deem expedient to the better conduct of its business, provided
that (a) Tenant submits complete plans of such alterations and/or changes to
Landlord for approval, such approval not to be unreasonably withheld, (b) such
alterations and/or changes do not injure the structural safety of either the
Demised Premises, the Premises or the Building, and in no way diminish the value
of either, (c) such alterations and/or changes are to be completed by Landlord's
managing agent, Haynes Management Inc., in a first class workmanlike manner,
employing building standard materials of good quality and complying with all
proper governmental requirements, (d) Tenant will save Landlord harmless from
all claims or liabilities because of damage or injury to any person or property
occasioned by or growing out of such change or alterations,. and (e) Tenant will
preserve the Premises and the Building at all times free of liens for labor and
materials'. At the termination of this Lease or any extension thereof, the
alterations shall remain as the property of Landlord unless Landlord expressly
requests Tenant to remove such alterations, in which case Tenant shall do so and
repair any damage caused by such removal.
XVI. DEFAULT
If (a) Tenant shall neglect or fail to perform or observe any of the
covenants or conditions contained herein and on its part to be performed or
observed, and Tenant shall fail to cure said breach or default (i) within five
(5) days after written notice of said breach or default with respect to rent or
any other money payment or (ii) within twenty-five (25) days after written
notice of any other breach or default unless such breach or default is not of
the type which can be cured within twenty-five (25) days, in which case Tenant
shall commence to cure such breach or default within twenty-five (25) days and
shall pursue such cure to completion diligently, or (b) the estate hereby
created shall be taken on execution or by other process of law, or (c) any
assignment shall be made of Tenant's property for the benefit of creditors or
otherwise, or (d) a receiver shall be appointed for any part of Tenant's
property, or (e) any proceedings shall be commenced by or against Tenant under
any bankruptcy or insolvency law now or hereafter enacted, then in any such
case, Landlord and/or the agents of Landlord may immediately or at any time
thereafter and without further demand or notice (x) physically enter into and
upon the Demised Premises or any part thereof in the name of the whole and
repossess the same, or (y) make an entry by written notice of same given to
Tenant at the address listed herein or such other address as Landlord has been
notified of, in writing, and Landlord may thereafter expel Tenant and those
claiming through or under it and remove its effects, forcibly, if necessary,
without being deemed guilty of any mariner of trespass and without prejudice to
any remedies which might otherwise be used for arrearages of rent or antecedent
breaches of covenant, and upon either such form of entry the Lease shall
terminate.
Tenant covenants that in case of any such termination it will indemnify
Landlord against all loss of rent and other payments, including damages which
Landlord may incur by reason of such termination (including any reasonable
attorney's fees incurred by Landlord in enforcing its rights against Tenant, and
pro-rata reimbursement for any brokerage fee paid in connection with Tenant's
aborted tenancy) during the remainder of the term and any extension thereof,
said payments to be made from time to time upon demand of Landlord.
Notwithstanding anything in the foregoing to the contrary, if Tenant
fails to make timely payment of any rental or other monetary payment required
herein due on more than two occasions within any period of twelve consecutive
months after notice as aforesaid, Tenant shall be deemed to have defaulted and
to have forfeited any right to cure or remedy any subsequent default, and in
such event Landlord shall immediately obtain the rights set forth in the
preceding paragraph and shall not be required to furnish Tenant with any further
notice with respect to
such subsequent default; or, if Landlord does not so elect and Tenant has
accumulated three months or more of rent in arrears, then Tenant agrees to be
liable for any and all costs incurred by Landlord, including reasonable
attorney's fees, in collecting same.
Landlord shall have the right, but shall not be required, to pay such
sums or do any act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of Tenant to
perform any of the provisions of this Lease, and in the event of the exercise of
such right by Landlord, Tenant agrees to pay to Landlord forthwith, upon demand,
all such sums, together with interest thereon at a rate equal to five percent
(5%) over the Prime Rate.
Except as otherwise expressly provided for in this Lease, failure on
the part of the Landlord to complain of any action or nonaction on the part of
Tenant, no matter how long the same may continue, shall never be a waiver by
Landlord of any rights hereunder. Further, no waiver at any time of any of the
provisions hereof by Landlord shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions hereof
shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord to or of any action requiring
such consent or approval shall not be construed to waive or render unnecessary
Landlord's consent or approval to or of any subsequent similar act by the other.
XVII. ARBITRATION
The parties agree that any dispute which pertains to their respective
rights and duties under this Lease or with regard to what either of them is
obliged to do or not do with respect to the Premises or the Building itself,
except for Landlord's entitlement to possession for non-payment of rent, shall
be submitted to arbitration in accordance with the Rules of the American
Arbitration Association, and any award or finding made shall be final and
binding upon them and judgment thereon may be entered in any court having
jurisdiction thereof.
XVIII. LANDLORD EOUITY INTEREST
Tenant agrees that in connection with any and all claims arising out of
this Lease pertaining to the Demised Premises, it shall have recourse only to
Landlord's interest in the Building and not the individual assets of Landlord.
XIX. NOTICES
Notices required to be given hereunder shall be in writing and shall be
deemed to be duty given and effective as of the date of (i) when delivered
personally, (ii) 72 hours after mailed by registered or certified mail, return
receipt requested, (iii) via fax or (iv) the day after deposited with a
recognized carrier who provides overnight delivery service and evidence of
delivery or refusal (such as but not limited to FedEx, Purolator Courier, UPS,
or U.S. Postal Service Overnight Delivery), addressed to Landlord at 34
Washington Street, Suite DEC 7, Wellesley Hills, Massachusetts 02481-1909 and to
Tenant at the Demised Premises, or to such other addresses as either Landlord or
Tenant may hereinafter furnish to the other in writing. Notices required
hereunder may be given to the Landlord, his lawyer, or his managing agents.
XX. ENTIRE AGREEMENT
This Lease and the Exhibits attached hereto and made a part hereof
constitute the entire agreement between Landlord and Tenant and incorporates all
of the covenants, agreements, conditions and understanding concerning the
Demised Premises to be performed by Landlord or Tenant during the term
hereunder. Further, this Lease supersedes and renders void any promise,
agreement or condition, whether expressed or implied between the parties hereto,
their representatives, assigns and legal representatives. This agreement can
only be amended in writing, and any such amendment is effective only when fully
executed by all parties.
XXI. BROKER
Except for Spaulding & Slye and Neelon Associates, Inc., Landlord and
Tenant represent and warrant to the other that it has not directly or indirectly
dealt with any Broker, with respect to the leasing of the Building, or had its
attention called to the Building, by any broker. Wayne Realty Trust shall be
responsible for paying any brokerage commission payable to Spaulding & Slye and
Neelon Associates, Inc. in connection with this Lease. Each party agrees to
exonerate and save harmless and indemnify the other against any claims for a
commission by any other broker, person, or firm, with whom such party has dealt
in connection with the execution and delivery of this Lease.
XXII. APPLICABLE LAW
This Lease shall be governed by and construed in accordance with
Massachusetts law.
XXIII. SURRENDER OF PREMISES AND HOLDING OVER
Tenant shall surrender possession of the Premises on the last day of the
term hereof and Tenant waives the right to any notice of termination or notice
to quit. Tenant covenants that upon the expiration or sooner termination of this
Lease, it shall, without notice, deliver up and surrender possession of the
Premises in the same condition in which the Tenant has agreed to keep the same
during the continuance of this Lease and in accordance with the terms hereof,
normal wear and tear excepted, first removing therefrom all goods and effects of
Tenant that are not attached to the Premises.
Upon the expiration of this Lease or if the Premises should be abandoned
by Tenant, or this Lease should terminate for any cause, and at the time of such
expiration, vacation, abandonment or termination, Tenant or Tenant's agents,
subtenants or any other person should leave any property of any kind, or
character, on or in the Premises, the fact of such leaving of property on or in
the Premises shall be conclusive evidence of intent by Tenant, and individuals
and entities deriving their rights through Tenant, to abandon such property so
left in or upon the Premises, and such leaving shall constitute abandonment of
the property. Landlord shall have the right and authority without notice to
Tenant or anyone else, to remove and destroy, or to sell or authorize disposal
of such property, or any part thereof, without being in any way liable to Tenant
therefor and the proceeds thereof shall belong to Landlord and as compensation
for the removal and disposition of such property. Tenant agrees to reimburse
Landlord for any expenses Landlord may incur in the removal or disposal of
Tenant's property, trash, or debris left in the Demised Premises after the
expiration of this Lease.
If Tenant fails to surrender possession of the Premises upon the
expiration or sooner termination of this Lease, Tenant shall pay to Landlord, as
rent for any period after the expiration or sooner termination of this Lease an
amount equal to THREE (3) TIMES the monthly rent required to be paid under this
Lease during the last year of term hereof. Acceptance by the Landlord of such
payments shall not constitute a consent to a holdover hereunder or result in a
renewal or extension of Tenant's rights of occupancy. Such payments shall be in
addition to and shall not affect or limit the Landlord's right of re-entry,
Landlord's right to collect such damages as may be available at law, or any
other rights of the Landlord under this Lease or as provided by law.
XXIV. SECURITY FOR TENANT'S PERFORMANCE
As security to Landlord that Tenant will carry out the monetary
obligations described in this Lease, the parties agree upon the following
arrangement. Upon execution of this Lease Amendment, Tenant shall deposit with
Landlord an IRREVOCABLE LETTER OF CREDIT in the face amount of ONE HUNDRED FIFTY
THOUSAND DOLLARS ($150,000.00) (the "Letter of Credit'), for the benefit of
Landlord, its successors or assigns; similar to the sample Irrevocable Letter of
Credit shown on EXHIBIT "F" attached hereto and made a part hereof. In the event
of an uncured monetary default of Tenant under this Lease, or in the event of
nonrenewal of the Letter of Credit by Tenant at least thirty (30) days prior to
its stated expiration date, Landlord shall have the right to draw upon the
Letter of Credit from time to time to cure any such default. The Letter of
Credit shall be maintained and renewed by Tenant on an annual basis for the term
of this Lease.
In the event of an uncured monetary default hereunder or the failure of
Tenant to deliver to Landlord a renewed or replacement Letter of Credit at least
thirty (30) days prior to the stated expiration date of the Letter of Credit,
Landlord may present a certificate to Lender certifying an uncured monetary
default of Tenant under this Lease and requesting a specific draw on the Letter
of Credit IN THE AMOUNT TO cure any such default. Tenant shall CAUSE THE LETTER
OF CREDIT TO BE AMENDED OR REISSUED SO THAT the full $150,000.00 stated amount
of the Letter of Credit shall be reinstated within fifteen (15) days following
any such partial draw.
If this Lease is terminated due to an uncured monetary default of
Tenant, Landlord may elect to draw down the full stated amount of the Letter of
Credit to satisfy existing or future Lease obligations of Tenant for unpaid rent
or other monetary or maintenance obligations imposed on Tenant by this Lease.
This provision shall in no way alter or diminish Landlord's obligation to
mitigate its damages hereunder and any Letter of Credit funds held by Landlord
in excess of Landlord's reasonable expenses to re-let the Demised Premises and
to compensate Landlord for rent reserved or due from Tenant through the stated
expiration date of this Lease, shall be refunded to Tenant.
Tenant shall have the right to cure any monetary default under this
Lease prior to a draw by Landlord under the Letter of Credit by paying to
Landlord the principal amount of any such default, plus any accrued interest
thereon pursuant to the applicable provisions of this Lease. Any such curing, on
Tenant's part, however, shall not undermine or alter in any way Landlord's
rights under this Lease. Landlord's resort to the Letter of Credit shall not
alter or modify Landlord's remedies under this Lease including, without
limitation, Landlord's right to terminate this Lease pursuant to the third
paragraph of Article XVI if Tenant fails timely to make any rental or other
monetary payment more than two (2) consecutive times within any period of twelve
(12) consecutive months.
AND IT IS MUTUALLY UNDERSTOOD AND AGREED that the covenants and
agreements contained in this Lease shall be binding upon the parties hereto and
upon their respective successors, assigns and legal representatives.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals to
this Lease this 3rd day of October, 1998.
LANDLORD: WAYNE REALTY TRUST TENANT: DIRECT HIT TECHNOLOGIES, INC.
By: /s/ G. Arnold Haynes By: /s/ Michael Cassidy
------------------------------- ------------------------------
G. Arnold Haynes, Trustee Michael Cassidy, CEO
EXHIBIT "B"
JANITORIAL INSTRUCTION SHEET
DAILY - CORE OF BUILDING
GENERAL
1. Dust mop all floors and spot mop where necessary.
2. Empty waste receptacles.
3. Clean and sanitize water coolers.
4. Clean glass on entrance doors to building.
S. Sweep/vacuum stairways.
6. Sweep (or mop) elevator floor.
7. Vacuum all carpeting.
8. Vacuum entrance mats.
RESTROOMS
1. Sweep and mop floors with disinfectant.
2. Clean and sanitize all fixtures.
3. Clean and polish mirrors.
4. Refill dispensers.
5. Empty waste receptacles.
6. Wipe down with disinfectant all toilet partitions.
WEEKLY - CORE OF BUILDING
GENERAL
1. Mop/vacuum stair-ways.
2. Mop entrances
3. Mop elevator.
DAILY - OFFICE AREAS
1. Empty waste receptacles. (normal office trash in waste baskets
only).
TWICE WEEKLY - OFFICE AREAS
1. Dust all horizontal surfaces provided that they have no loose
papers on them.
2. Vacuum all carpeting.
3. Clean glass on entrance doors.
4. Wipe down all window sills.
MONTHLY - CORE OF BUILDRNG
1. Wash and wax entrances - more frequently if needed.
EXHIEBIT"C"
RULES AND REGULATIONS
1. The entrance, lobbies, passages, corridors, elevators, and stairways shall
not be encumbered or obstructed by Tenant, Tenant's agents, servants,
employees, licensees or visitors or be used by them for any purpose other
than for ingress and egress to and from the premises. The moving in and
out of all safes, freight, furniture, or bulky matter of any description
must take place during the hours which Landlord may determine from time to
time. Landlord reserves the right to inspect all freight and bulky matter
to be brought into the building and to exclude from the building all
freight and bulky matter which violate any of these Rules and Regulations
or the lease of which these Rules and Regulations are a part.
2. No curtains, blinds, shades, screens other than those furnished by
Landlord shall be attached to, hung in, or used in connection with any
window or door of the premises without the prior written consent of
Landlord. Interior signs on doors shall be painted, or affixed for Tenant
by Landlord or by sign painters first approved by Landlord, at the expense
of Tenant, and shall be of a size, color and style acceptable to Landlord.
3. Canvassing, soliciting and peddling in the Building are prohibited and
Tenant shall cooperate to prevent same.
4. Tenant shall comply with all security measures from time to time
established by Landlord for the Building.
5. There shall be no overnight parking in the parking areas designated for
the Building for which the Demised Premises is a part.
6. Upon the removal of any xerox or similar copy equipment from the Demised
Premises, Tenant shall be responsible for removal of any stains on the
carpet and/or walls within the Demised Premises caused by such copy
equipment.
7. Tenant shall not have the right to make any lock changes or installation
of burglar alarm systems, within the premises without first obtaining
consent form Landlord, such consent not to be unreasonably withheld, it
being understood that any lock changes shall be keyed to Landlord's master
system and the cost of any such lock change shall be borne by Tenant.
8. Floor mats must be placed under all desk chairs with wheels or casters.
9. Tenant agrees to promptly report to Landlord or Haynes Management Inc.,
any problems relating to Landlord performing its duties hereunder.
10. Tenant shall submit to Landlord, plan(s) showing proposed location and
method of installation of phone equipment including, but not limited to,
relay terminals, phone lines, and services panels, for Landlord approval.
All phone jacks shall be installed within three (3") inches above floor.
11. The moving in and out of all safes, freight, furniture, or bulky matter of
any description must take place during the hours which Landlord may
determine from time to time. Tenant agrees that should the elevator be
needed, at the expiration of the Lease term, or at any time during the
term hereof, for the moving in or out of furniture, etc., that Tenant will
notify Landlord and will only use the elevator during the hours of 9:30AM
and 4:00PM Monday through Friday, unless approved by Landlord in writing.
EXHIBIT"C"
RULES AND REGULATIONS
(Continued)
12. The Building is a designated non-smoking facility, it is agreed that
there will be no smoking in any portion. including the Demised Premises,
of the Building and extends the smoke free zone to the entrances of the
Building as outlined in red on the attached Exhibit "E" and made a part
hereof.
13. Landlord reserves the right to assign parking stickers to tenants in the
building in accordance to the parking ratio detailed in Article VI of
the Lease and to enforce such parking allocations.
14. No Medical Laboratory Boxes are permitted in the common areas of the
Building and should be kept inside the Demised Premises locked at all
times.
15. Tenant agrees not to allow or permit either by the Tenant or its agents,
employees, licensees, invitees or visitors, a pet (domestic or
otherwise) on the Premises or in the Demised Premises, the exception
being a "seeing-eye" dog.
EXHIBIT "F"
SAMPLE IRREVOCABLE LETTER OF CREDIT
November 27, 1998
Wayne Realty Trust
c/o: Haynes Management, Inc.
34 Washington Street; Suite DEC7
Wellesley Hills, MA 02481-1909
Re: IRREVOCABLE LETTER OF CREDIT
Dear Sir/Madam:
At the request and upon the instructions of DIRECT HIT TECHNOLOGIES, INC., with
current place of business at 386 Washington Street, Playhouse Square, Wellesley
Hills, MA 02481-6218, we hereby issue our Irrevocable Standby Letter of Credit
No._______________ in your favor for the aggregate amount of ONE HUNDRED FIFTY
THOUSAND & 00/100 US DOLLARS (USD$150,000.00) effective the date hereof and
expiring on January 1, 2000, available by your draft(s) at sight drawn on
(BANK), ___(ADDRESS)_______, Massachusetts (zip CODE) when accompanied by the
following:
1. The original of this Letter of Credit, and
2. Your signed statement certifying that (1) an uncured default has
occurred under a certain Lease dated December _____, 1998 between Wayne
Realty Trust, as Landlord, and Direct Hit Technologies, Inc., as
Tenant, covering certain Premises located at 888 Worcester Street,
Wellesley, Massachusetts, 02482 AND THE AMOUNT DRAWN IS AN AMOUNT
NECESSARY TO CURE SUCH DEFAULT or (2) said Letter of Credit is not
extended for another twelve (12) month period at least thirty days
prior to the expiration of this Letter of Credit.
Each draft must bear upon its face the clause "Drawn under ____(BANK)_____
Irrevocable Standby Letter of Credit No. _______________.
It is a condition of this Letter of Credit that it shall be deemed automatically
extended without amendment for additional periods of one (1) year up until
December 31, 2001, (being the final expiration date), from the present or each
future expiration date hereof, unless, at least thirty (30) days prior to such
date we have notified you in writing by registered, certified or express courier
mail to the above address that we elect not to renew this Letter of Credit for
any such additional period.
This Letter of Credit sets forth in full the terms of our understanding and such
undertaking shall not in any way be modified, amended or amplified by reference
to any document, instrument or agreement referred to herein or in which this
Letter of Credit is referred to or to which this Letter of Credit incorporate
herein by reference any document, instrument or agreement.
This Letter of Credit is subject to the Uniform Customs and Practice of
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500 (the "Uniform Customs") with the exceptions of Articles
48(f) and 48(g) thereof. This Letter of Credit shall, as to matters not governed
by the Uniform Customs, be governed by and construed in accordance with the laws
of the Commonwealth of Massachusetts.
We hereby agree with you that all drafts drawn under and in compliance with the
terms of this credit will be duly honored if presented to the undersigned on or
before December 1, 1999 or as automatically extended to the final expiration
date noted above..
__________(BANK)______________
By:_____________________________________
Authorized Signatory
--------------------------------------
(Print Name & Title)