EXHIBIT 10.13
MARLBOROUGH CORPORATE CENTER OFFICE LEASE
TABLE OF CONTENTS
ARTICLE SECTION PAGE
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I. Basic Lease Provisions
1.1 Introduction
1.2 Basic Data
II. Description of Premises And Appurtenant Rights
2.1 Location of Premises
2.2 Appurtenant Rights And Reservations
III. Term
3.1 Term
3.2 Extension Term
IV. Rent
4.1 Annual Base Rent
4.2 Additional Rent
4.3 Tenant Improvement Allowance
V. Use of Premises
5.1 Permitted Use
5.2 Alterations
VI. Assignment And Subletting
6.1 General
6.2 Notice
6.3 Tenant Remains Liable
6.4 General Conditions
6.5 Recapture
6.6 Profit
6.7 Permitted Transactions
VII. Delivery of Premises And Responsibility For Repairs
And Condition of Premises
7.1 Delivery of Possession of Premises
7.2 Landlord's Work
7.3 Schedule
7.4 Other Construction Provisions
7.5 Repairs to Be Made by Landlord
7.6 Tenant's Agreement
7.7 Floor Load - Heavy Machinery
VIII. Services to Be Furnished by Landlord And Utility Charges
8.1 Landlord's Services
8.2 Payment of Utility Charges
8.3 Energy Conservation
IX. Real Estate Taxes And Other Expenses
9.1 Tenant's Share of Real Estate Taxes
9.2 Tenant's Share of Operating Expenses
X. Indemnity And Public Liability Insurance
10.1 Tenant's Indemnity
10.2 Public Liability Insurance
10.3 Tenant's Risk
10.4 Injury Caused by Third Parties
10.5 Fire And Hazard Insurance
10.6 Additional Insurance
10.7 Additional Restrictions
XI. Landlord's Access to Premises
11.1 Landlord's Right of Access
11.2 Exhibition of Space to Prospective Tenants
XII. Damage And Destruction
12.1 Notice
12.2 Destruction of Building or Premises
XIII. Eminent Domain
13.1 General
13.2 Award
XIV. Landlord's Remedies
14.1 Events of Default
14.2 Remedies
14.3 Tenant's Obligations/landlord's Rights
14.4 Landlord's Default
XV. Miscellaneous Provisions
15.1 Extra Hazardous Use
15.2 Waiver
15.3 Covenant of Quiet Enjoyment
15.4 Notice to Mortgagee And Ground Lessor
15.5 Assignment of Leases And Rents
15.6 Mechanic's Liens
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15.7 No Brokerage
15.8 Invalidity of Particular Provisions
15.9 Provisions Binding, Etc.
15.10 Recording
15.11 Notices
15.12 When Lease Becomes Binding
15.13 Paragraph Headings
15.14 Rights of Mortgagee
15.15 Status Report
15.16 Security Deposit; Tenant's Financial Condition
15.17 Additional Remedies of Landlord
15.18 Holding Over
15.19 Non-Subrogation
15.20 Relocation of Premises
15.21 Governing Law
15.22 Definition of Additional Rent
15.23 Landlord's Fees And Expenses
15.24 Parking
15.25 Authority
15.26 Confidentiality
15.27 Force Majeure
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EXHIBITS
A Description of Land
B Base Building Description
C Notice of Lease
D Tenant's Work
E Subordination, Nondisturbance
F Landlord's Work
G Cleaning Services
H Plan of Premises
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THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in the
building (the "Building") known as Marlborough Corporate Center located at 154
Crane Meadow Road in Marlborough, Massachusetts. The Building is located on a
parcel of land (the "Land") which is more particularly described in EXHIBIT A
annexed hereto.
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. As further supplemented in the balance of this instrument
and its Exhibits, the following sets forth the basic terms of this Lease and,
where appropriate, constitutes definitions of certain terms used in this Lease.
1.2 BASIC DATA.
Date: October 20, 1998
Landlord: LSOF Pooled Equity, L.P., a Delaware limited
partnership
Present Mailing Address c/o Hudson Advisors, L.L.C.
of Landlord: Ten High Street, Suite 1120
Boston, MA 02110
Attn: Paul Barry, Asset Manager
Tenant: Freedom of Information, Inc., a
Delaware corporation
Present Mailing Address 154 Crane Meadow Road
of Tenant: Marlborough, Massachusetts
Property: Collectively, the Building, the Land and any
other building improvements hereafter
located on the Land.
Project: A three story brick and glass building with
a gross buildable area of 160,018 square
feet and a gross rentable area of 156,630
square feet calculated in accordance with
the BOMA Standard. The building will be
constructed by Landlord, at Landlord's sole
cost in
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accordance with the Base Building
Description attached hereto as EXHIBIT B.
Initial Term or Terms: Sixty-two (62) months
Lease Commencement Date: The date on which Landlord delivers
possession of the Premises to Tenant in
accordance with Article III hereof which is
estimated to be January 1, 1999. The Lease
Commencement Date shall be memorialized by a
supplemental agreement signed by the parties
hereto.
Rent Commencement Date: Sixty (60) days after the Lease Commencement
Date, which date is estimated to be March 1,
1998.
Annual Base Rent: Monthly: For each calendar month of the
first twelve months of the Term hereof,
monthly Annual Base Rent shall be paid in
the amount of $37,771.50. The first month's
payment of Annual Base Rent shall be payable
upon execution of this Lease. Thereafter, as
follows:
Second Twelve Months: $37,771.50/per month
Third Twelve Months: $39,708.50/per month
Fourth Twelve Months: $41,645.50/per month
Fifth Twelve Months: $41,645.50/per month
Annual: For the first lease year of the Term
hereof, the annual amount of Annual Base
Rent shall be $453,258/per annum.
Thereafter, as follows:
Second Year: $453,258/per annum
Third Year: $476,502/per annum
Fourth Year: $499,746/per annum
Fifth Year: $499,746/per annum
Additional Rent: The Amounts set forth in Article IV, Section
4.2.
Use: First class office uses and uses ancillary
thereto only.
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Description of Space: The portion of the Building located (herein
the "Premises") on the 1st floor as shown on
EXHIBIT H attached hereto consisting of
23,244 rentable square feet ("RSF") of floor
area (the "Premises").
Tenant's Proportionate Share: 14.84%.
Base Tax Amount: Taxes for the Base Tax Year.
Base Operating Expenses: Operating Expenses for Calendar Year 1999.
Delivery Date: Same as Lease Commencement Date
Security Deposit: Upon execution of this Lease, Tenant shall
pay to Landlord $232,440 as a Security
Deposit. Landlord will hold said deposit in
accordance with the terms and conditions set
forth in Section 15.16 of this Lease.
At the end of twelve (12) months so long as
Tenant is not currently in default beyond
any applicable cure or grace periods and
Tenant has not been late in the payment more
than twice during the preceding twelve (12)
months, Landlord will refund to Tenant fifty
percent (50%) of the Security Deposit.
Brokers: Fallon, Hines & O'Connor and Neelon
ARTICLE II
DESCRIPTION OF PREMISES
AND APPURTENANT RIGHTS
2.1 LOCATION OF PREMISES. Landlord hereby devises and leases to Tenant, and
Tenant hereby accepts from Landlord, the Premises identified in the foregoing
portions of this Lease.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. Tenant shall have, as appurtenant
to the Premises, the nonexclusive right to use and to permit its invitees to use
in common with others, public or common lobbies, hallways, stairways, passenger
and freight elevators and sanitary facilities in the Building, but such rights
shall always be subject to reasonable rules and
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regulations from time to time established by Landlord by suitable notice and to
the right of Landlord to designate and change from time to time areas and
facilities so to be used.
Excepted and excluded from the Premises are the roof or ceiling, the floor and
all perimeter walls of the Premises, except the inner surfaces thereof, but the
entry doors to the Premises are not excluded from the Premises and are a part
thereof for all purposes; and Tenant agrees that Landlord shall have the right
to place in the Premises (but in such manner as to reduce to a minimum
interference with Tenant's use of the Premises) utility lines, pipes and the
like to serve premises other than the Premises, and to replace, maintain and
repair such utility lines, pipes and the like, in, over and upon the Premises.
During the hours of 8:00 A.M. to 6:00 P.M., Monday through Friday, and 8:00 A.M.
to 1:00 P.M. on Saturdays, legal holidays in all cases excepted (hereinafter
referred to as "Normal Building Operating Hours"), the Building shall be open
and access to the Premises shall be freely available, subject to interruption
due to causes beyond Landlord's reasonable control. During periods other than
Normal Building Operating Hours, Landlord shall provide means of access to the
Building by an electronic key card system, but access to the Premises during
Normal Building Operating Hours and at other times shall always be subject to
reasonable rules and regulations therefor from time to time established by
Landlord by suitable notice. Tenant acknowledges that, in all events, Tenant is
responsible for providing security to the Premises and its own personnel, and
Tenant shall indemnify, defend with counsel of Landlord's selection, and save
Landlord harmless from any claim for injury to person or damage to property
asserted by any personnel, employee, guest, invitee or agent of Tenant which is
suffered or occurs in or about the Premises, the Building or the Land by reason
of the act of an intruder or any other person in or about the Premises.
ARTICLE III
TERM
3.1 TERM. The term of this Lease shall be sixty-two (62) months (the "Term")
commencing on the earlier of (i) the date that Landlord delivers the Premises to
Tenant with all the Landlord's Work (defined in Section 7.2 below) Substantially
Complete (defined in Section 7.1 below), or (ii) the date on which Tenant begins
use of the Premises for the operation of its business (the "Lease Commencement
Date") which date is estimated to be January 1, 1999 (the "Estimated
Commencement Date") and expiring on the date which is the end of the sixty-
second (62/nd/) month after the Lease Commencement Date, which is estimated to
be February 28, 2002 (the "Expiration Date") unless this Lease is sooner
terminated pursuant to the provisions hereof or by law. Within seven
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(7) days of the Lease Commencement Date, Tenant shall execute and deliver to
Landlord for execution and recording by Landlord, a written instrument which
sets forth the Lease Commencement Date and the Term (the "Notice of Lease") in
the form attached hereto as EXHIBIT C.
a. If, for any reason other than solely due to Tenant Delay (defined in
Section 7.1 below) or Force Majeure (as defined in Section 15.27) the
Premises have not been delivered to Tenant with the Landlord's Work
Substantially Complete on or before thirty (30) days after the Estimated
Commencement Date, Tenant shall receive an additional one (1) day of
abatement in Annual Base Rent commencing as of the Rent Commencement
Date for each day beyond the Estimated Commencement Date that the
Premises is not so delivered.
b. If, for any reason other than solely due to Tenant Delay or Force
Majeure, the Premises have not been delivered to Tenant with all of
Landlord's Work Substantially Complete on or before forty-five (45) days
after the Estimated Commencement Date, Tenant shall have the right to
terminate this Lease, by written notice to the Landlord given within
seven (7) days of the expiration of the forty-five (45) day period. If
Tenant does not issue such notice within the seven (7) day period and
Landlord delivers the Premises with all the Landlord's Work
Substantially Complete, Tenant's right to terminate under this
subsection 3.1(b) shall terminate and be of no further force or effect.
c. If, for any reason other than solely due to Tenant Delay, the Premises
have not been delivered to Tenant with all of Landlord's Work therein
Substantially Complete on or before sixty (60) days after the Estimated
Commencement Date, Tenant shall have the right to terminate this Lease,
by written notice to the Landlord given within seven (7) days of the
expiration of the sixty (60) day period. If Tenant does not issue such
notice within the seven (7) day period and Landlord delivers the
Premises with all the Landlord's Work Substantially Complete, Tenant's
right to terminate under this Section 3.1(c) shall terminate and be of
no further force or effect.
d. Any delay in the Estimated Commencement Date as a result of Tenant's
Contractor shall be as set forth in Section 7.4(b) of this Lease.
3.2 EXTENSION TERM. This Lease is not subject to any extension terms.
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ARTICLE IV
RENT
4.1 ANNUAL BASE RENT. Tenant agrees to pay to Landlord at the present
mailing address of Landlord, or as directed by Landlord, without notice, demand,
off-set or deduction, on the Rent Commencement Date and thereafter, monthly, in
advance, on the first day of each and every calendar month during the Lease
Term, a sum equal to the monthly Annual Base Rent specified in Section 1.2
hereof.
Annual Base Rent for any partial month shall be paid by Tenant at such rate on a
pro rata basis, and if the Lease Term commences on a day other than the first
day of a calendar month, the first payment which Tenant shall make shall be a
payment equal to a proportionate part of such monthly Annual Base Rent for the
partial month from the Rent Commencement Date to the first day of the succeeding
calendar month, and the monthly Annual Base Rent for such succeeding calendar
month.
4.2 ADDITIONAL RENT. Commencing as of the Rent Commencement Date, in
addition to the Annual Base Rent, Tenant shall pay the following as additional
rent under this Lease (collectively, "Additional Rent"):
a. Operating Expenses. Commencing on the Rent Commencement Date, Tenant
shall pay, as Additional Rent hereunder in equal monthly installments,
Tenant's Proportionate Share of the amount by which Operating Expenses
(as defined in Section 9.2) paid or incurred by Landlord in each
calendar year during the term of this Lease following the Base Operating
Year, exceeds the Base Operating Expenses, as more particularly set
forth in Article IX.
b. Taxes. Commencing on the Rent Commencement Date, Tenant shall pay as
Additional Rent hereunder in equal monthly installments, Tenant's
Proportionate Share of the amount by which Real Estate Taxes in any tax
year or partial tax year during the term of the Lease exceeds the Base
Tax amount, as more particularly set forth in Article IX.
4.3 TENANT IMPROVEMENT ALLOWANCE
a. General. Landlord grants to Tenant a tenant improvement allowance of
$15.00 per rentable square foot of the Premises (the "Allowance") to be
applied by Landlord for construction of Landlord's Work.
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b. Tenant's Funds. Tenant shall be obligated and agrees to pay to Landlord
all costs of Landlord's Work in excess of the Allowance (the "Tenant's
Buildout Share"). In the event that Landlord estimates the total cost of
the Landlord's Work will exceed the Allowance, Tenant agrees to deposit
with Landlord the difference between the Allowance and the cost of
Tenant's Buildout Share. Tenant shall deposit Tenant's Buildout Share
within fifteen (15) days of Landlord's notice to Tenant of the
exhaustion of the Allowance. This money will be held in escrow by the
Landlord and will be used by the Landlord for payment of Landlord's Work
once the Allowance has been exhausted.
c. Excess Allowance. If and to the extent that there remains any unexpended
Allowance after completion of Landlord's Work on the Premises, any such
Allowance shall be applied towards Tenant's Annual Base Rent first due
and payable under this Lease until such excess has been exhausted.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE. Tenant agrees that the Premises shall be used and
occupied by Tenant only for the purpose specified as the use thereof in Section
1.2 of this Lease, and for no other purpose or purposes.
Tenant further agrees to conform to the following provisions during the entire
Lease Term.
a. Tenant shall cause all freight (including furniture, fixtures and
equipment used by Tenant in the occupancy of the Premises) to be
delivered to or removed from the Building and the Premises in accordance
with reasonable rules and regulations established by Landlord therefor
and Landlord may require that such deliveries or removals be undertaken
during periods other than Normal Building Operating Hours;
b. Tenant shall not place on the exterior of exterior walls (including both
interior and exterior surfaces of windows and doors) or on any part of
the Building outside the Premises, any sign, symbol, advertisement or
the like visible to public view outside of the Premises except for a
sign on the door of the Premises of the type commonly and customarily
found in first-class office buildings for the purpose of identifying and
locating the Premises, which sign shall always be subject to the prior
approval of Landlord. Landlord has established standards for such signs
and Tenant agrees to conform to the same and to submit for
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Landlord's prior approval a plan or sketch of the sign to be placed on
such entry doors. Without limitation, lettering on windows and window
displays are expressly prohibited.
Landlord agrees, however, to maintain a tenant directory in the lobby of
the Building in which will be placed Tenant's name and the location of
the Premises in the Building;
c. Tenant shall not perform any act or any practice which may injure the
Premises, or any other part of the Building, or cause any offensive
odors or loud noise, or constitute a nuisance or a menace to any other
tenant or tenants or other persons in the Building, or be detrimental to
the reputation or appearance of the Building;
d. Tenant shall conduct Tenant's business in the Premises in such a manner
that Tenant's invitees shall not collect, line up or linger in the lobby
or corridors of the Building, but shall be entirely accommodated within
the Premises;
e. Tenant shall comply and shall cause all employees to comply with all
rules and regulations from time to time reasonably established by
Landlord by suitable notice. Landlord shall not, however, be responsible
for the noncompliance with any such rules and regulations by any other
tenant or occupant of the Building, but Landlord shall not discriminate
against Tenant in the enforcement of such rules and regulations;
f. Tenant shall not use the name of the Building directly or indirectly in
connection with Tenant's business, except as a part of Tenant's address,
and Landlord reserves the right to change the name of the Building at
any time;
g. Except for products normally found in business offices (which products
shall be used and disposed of in accordance with applicable local, state
and federal laws) Tenant shall not use, handle or store or dispose of
any oil, hazardous or toxic materials or hazardous or toxic wastes in or
about the Building. If the transportation, storage, use or disposal of
hazardous or toxic materials anywhere on the Land in connection with
Tenant's use of the Premises results in (1) contamination of the soil or
surface or ground water or (2) loss or damage to person(s) or property,
then Tenant agrees to respond in accordance with the following
paragraph:
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Tenant agrees (i) to notify Landlord immediately of any contamination,
claim of contamination, loss or damage, (ii) after consultation and
approval by Landlord, to clean up the contamination in full compliance
with all applicable statutes, regulations and standards, and (iii) to
indemnify, defend and hold Landlord harmless from and against any
claims, suits, causes of action, costs and fees, including attorneys'
fees, arising from or connected with any such contamination, claim of
contamination, loss or damage. This provision shall survive the
termination of this Lease. No consent or approval of Landlord shall in
any way be construed as imposing upon Landlord any liability for the
means, methods, or manner of removal, containment or other compliance
with applicable law for and with respect to the foregoing; and
h. Tenant agrees that, within the Premises, it shall be responsible for
compliance with the Americans with Disabilities Act (42 U.S.C. (S) 12101
et. seq.) and the regulations and Accessibility Guidelines for Buildings
and Facilities issued pursuant thereto (the "ADA"), but Landlord shall
conduct all improvements in the Premises in compliance with the ADA as a
part of Landlord's Work.
5.2 ALTERATIONS. After initial completion of any work to be done by Tenant,
for which provision is made herein in EXHIBIT D attached hereto, Tenant shall
not alter or add to the Premises, except in accordance with written consent from
Landlord, which Landlord agrees not unreasonably to withhold as to nonstructural
alterations or additions. All alterations made by Tenant shall be made in
accordance with all applicable laws, in a good and first-class workmanlike
manner and in accordance with the requirements of Landlord's insurers and
Tenant's insurers. Any contractor or other person undertaking any alterations
of the Premises on behalf of Tenant shall be covered by Comprehensive General
Liability and Workmen's Compensation insurance with coverage limits reasonably
acceptable to Landlord and evidence thereof shall be furnished to Landlord prior
to the performance by such contractor or person of any work in respect of the
Premises. All work performed by Tenant in the Premises shall remain therein
(unless, at the time Tenant requests Landlord's approval thereof, Landlord
directs Tenant to remove the same on termination) and, at termination, shall be
surrendered as a part thereof, except for Tenant's usual fixtures, trade
furniture and equipment, if movable, installed prior to or during the Lease Term
at Tenant's cost, which fixtures, trade furniture and equipment Tenant may
remove upon the termination of this Lease. Tenant agrees to repair any and all
damage to the Premises resulting from such removal (including removal of
Tenant's improvements directed by Landlord as provided above) or, if Landlord so
elects, to pay Landlord for the reasonable cost of any such repairs forthwith
after billing therefor.
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ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 GENERAL. Notwithstanding any other provisions of this Lease, except as set
forth below, Tenant covenants and agrees that it will not assign this Lease or
sublet (which term, without limitation, shall include the granting of
concessions, licenses, management arrangements and the like) the whole or any
part of the Premises without, in each instance, having first received the
express written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Any assignment of this Lease, or subletting of the whole or
any part of the Premises (other than as permitted to a subsidiary or a
controlling corporation or entity as set forth below) by Tenant without
Landlord's express consent shall be invalid, void and of no force or effect.
Notwithstanding anything to the contrary in this Lease, if Tenant assigns or
sublets any portion of the Leased Premises, without Landlord's written
authorization, then Landlord reserves the right to begin dealing directly with
the subtenant without waiving any of the Landlord's rights under this lease
against the original Tenant and without notice to the original Tenant.
6.2 NOTICE. At least thirty (30) days prior to any sublease of the Premises
to another party or fifteen (15) days prior to any assignment of this Lease to a
new entity, Tenant shall provide Landlord written notice of such proposed
sublease or assignment containing the name and address of the proposed
assignee/sublessee, information as to its reputation, information as to its
financial condition, the intended use of the Premises, a copy of the proposed
sublease or assignment, and any other reasonable information the Landlord may
request before rendering a decision and any information provided shall be
treated as Tenant's warranty in respect of the information submitted therewith
to the best of Tenant's knowledge. Landlord will consider the following factors
in making its decision regarding the proposed assignment/sublet. This list is
illustrative and not intended to be a complete list of criteria the Landlord
will consider: (i) demonstrated financial stability and credit worthiness; (ii)
reputation of business; (iii) type of business; (iv) source of rent, including
financial conditions and operating performance of proposed assignee/sublessee;
(v) security provided to Landlord by Tenant and proposed assignee/sublessee of
future performance; (vi) expected rent to be paid by proposed
assignee/sublessee; and (vii) assurance sublessee's use will not cause Landlord
to be in violation of any other leases which limit the business type or uses by
other tenants in the building.
6.3 TENANT REMAINS LIABLE. In any case where Landlord shall consent to such
assignment or subletting, the Tenant named herein shall remain fully liable for
the obligations of Tenant hereunder, including, without limitation,
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the obligation to pay the Annual Base Rent and other amounts provided under this
Lease.
6.4 GENERAL CONDITIONS. It shall be a condition of the validity of any such
assignment or subletting that the assignee or sublessee agrees directly with
Landlord, in form reasonably satisfactory to Landlord, to be bound by all the
obligations of Tenant hereunder, including, without limitation, the obligation
to pay Annual Base Rent and other amounts provided for under this Lease and the
covenant against further assignment and subletting, but such assignment or
subletting shall not relieve the Tenant named herein of any of the obligations
of Tenant hereunder, and Tenant shall remain fully liable therefor. In no
event, however, shall Tenant assign this Lease or sublet the whole or any part
of the Premises to a proposed assignee or sublessee which has been judicially
declared bankrupt or insolvent according to law, or with respect to which an
assignment has been made of property for the benefit of creditors, or with
respect to which a receiver, guardian, conservator, trustee in involuntary
bankruptcy or similar officer has been appointed to take charge of all or any
substantial part of the proposed assignee's or sublessee's property by a court
of competent jurisdiction or with respect to which a petition has been filed for
reorganization under any provisions of the Bankruptcy Code now or hereafter
enacted, or if a proposed assignee or sublessee has filed a petition for such
reorganization, or for arrangements under any provisions of the Bankruptcy Code
now or hereafter enacted and providing a plan for a debtor to settle, satisfy or
extend the time for the payment of debts. Tenant shall, upon demand, reimburse
Landlord legal for the fees and expenses incurred by Landlord in processing any
request to assign this Lease or to sublet all or any portion of the Premises,
whether or not Landlord agrees thereto, and if Tenant shall fail promptly so to
reimburse Landlord, the same shall be a default in Tenant's monetary obligations
under this Lease.
6.5 RECAPTURE. Without limiting Landlord's discretion to grant or withhold
its consent to any proposed assignment or subletting, if Tenant requests
Landlord's consent to assign this Lease or sublet all or any portion of the
Premises, Landlord shall have the option, exercisable by written notice to
Tenant given within fifteen ( 15) days after Landlord's receipt of such request,
to terminate this Lease as of the date specified in such notice which shall be
not less than fifteen (15) nor more than forty-five (45) days after the date of
such notice for the entire Premises, in the case of an assignment or subletting
of the whole, and for the portion of the Premises, in the case of a subletting
of a portion. In the event of termination in respect of a portion of the
Premises, the portion so eliminated shall be delivered to Landlord on the date
specified in good order and condition in the manner provided in Section 4.2 at
the end of the Lease Tenn and thereafter, to the extent necessary in Landlord's
reasonable judgment, Landlord, at its own cost and expense, may have access to
and may make modification to the Premises so as to make such portion a
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self-contained rental unit with access to common areas, elevators and the like.
Annual Base Rent and Tenant's Proportionate Share shall be adjusted according to
the extent of the Premises for which the Lease is terminated.
6.6 PROFIT. Without limitation of the rights of Landlord hereunder in
respect thereto, if there is any assignment of this Lease by Tenant for
consideration or a subletting of the whole of the Premises by Tenant at a rent
which exceeds the rent payable hereunder by Tenant, or if there is a subletting
of a portion of the Premises by Tenant at a rent in excess of the subleased
portion's pro rata share of the rent payable hereunder by Tenant, then Tenant
shall pay to Landlord, as Additional Rent, forthwith upon Tenant's receipt of
the consideration (or the cash equivalent thereof) therefor, in the case of an
assignment, and in the case of a subletting, the full amount of any such excess
rent after deductions for the cost of tenant improvements provided by Tenant,
documented to the reasonable satisfaction of Landlord, brokerage commissions
paid by the Tenant and attorneys' fees. The provisions of this paragraph shall
apply to each and every assignment of the Lease and each and every subletting of
all or a portion of the Premises, other than a Permitted Transaction pursuant to
Section 6.7 hereof, in each case on the terms and conditions set forth herein.
For the purposes of this Article VI, the term "Rent" shall mean all Annual Base
Rent, Additional Rent or other payments and/or consideration payable by one
party to another for the use and occupancy of all or a portion of the Premises.
6.7 PERMITTED TRANSACTIONS. The provisions of this Article VI shall not,
however, be applicable to an assignment of this Lease or a sublease by Tenant to
a subsidiary or an affiliate of Tenant or to an entity acquiring substantially
all of the stock or assets of Tenant (a "Permitted Transaction") as long as the
net worth of the assignee, sublessee or the Tenant, as the case may be, does not
decrease as a result of such transaction. No such assignment or sublease shall
relieve the Tenant herein named of any of its obligations hereunder, and Tenant
shall remain fully liable therefor. In cases of Permitted Transactions, Tenant
shall give Landlord fifteen (15) days' written notice of any assignment or
sublease. Tenant shall provide Landlord written notice of such proposed
sublease or assignment containing the name and address of the proposed assignee,
information as to its reputation, information as to its financial condition, the
name of the new entity to be created, if any such additional information as
Landlord shall reasonably request.
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ARTICLE VII
DELIVERY OF PREMISES AND RESPONSIBILITY FOR REPAIRS
AND CONDITION OF PREMISES
7.1 DELIVERY OF POSSESSION OF PREMISES. The Premises shall be treated as
delivered hereunder upon the date on which Landlord's architect or engineer
shall give Tenant notice that the Landlord's Work has reached Substantial
Completion, but in no event sooner than January 1, 1999.
The term "Substantial Completion" shall mean (i) completion of the Landlord's
Work to such condition of completeness so as to obtain a certificate of use and
occupancy (including a temporary certificate) from the City of Marlborough for
the Premises in order that Tenant may occupy the Premises; (ii) the shell and
core of the Building are complete and in substantial compliance with all
applicable laws, statutes, codes, rules and regulations (collectively, "Laws")
and all of the Building's heating, ventilating, air-conditioning ("HVAC"),
plumbing, life safety, telephone, cable, if any, mechanical and electrical
systems (collectively, "Building Systems") are operational to the extent
necessary to service the Premises; (iii) Tenant has been provided with the
number of parking spaces to which it is entitled under this Lease; and (iv)
Tenant has executed and delivered a subordination, attornment and non-
disturbance agreement in the form attached hereto as EXHIBIT E and has received
an original executed by Landlord and each mortgagee of record, if applicable.
The existence of "punchlist" items remaining outstanding which do not
unreasonably interfere with general occupancy by Tenant shall not prevent
Substantial Completion, but Landlord shall use diligent efforts to promptly
complete such punchlist items without unreasonable interference with Tenant's
business.
To the extent that the date of the Substantial Completion of Landlord's Work is
delayed beyond the Estimated Commencement Date by reason of (i) Tenant's failure
to approve Construction Drawings (as defined below); or (ii) changes requested
by Tenant in Landlord's Work following approval by Tenant of the Final Schematic
Plan (which shall be defined as those design and development drawings provided
by the Landlord's Architect, Planners Designers Architects, Inc. ("PDA")); or
(iii) Tenant's failure to pay any amounts due from Tenant, if any, in excess of
the Allowance, to fund Landlord's Work (collectively, "Tenant Delay"), the date
of Substantial Completion shall be the Lease Commencement Date, however, the
Rent Commencement Date will not be similarly changed or extended.
7.2 LANDLORD'S WORK. Landlord will construct, install or perform in the
Premises those improvements and work agreed upon by Landlord and Tenant that is
necessary for Tenant to occupy the Premises. Landlord's Work shall be
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conducted in a first-class manner and in accordance with the provisions of this
Article VII.
Unless otherwise directed by Tenant in writing, Landlord's goal will be to
negotiate a final set of construction documents with the contractor to enable
construction of Landlord's Work within the aggregate Allowance of $15.00 per
rentable square foot. The stages of the buildout, time periods during which the
stages will occur and the respective obligations of Landlord and Tenant are set
forth below in this Article VII.
Landlord shall enter into an agreement with PDA through its affiliate, Dacon
Corporation, for the following design services: (i) architectural; (ii)
structural and engineering; (iii) civil engineering; (iv) mechanical engineering
services, including HVAC, plumbing and fire protection; and (v) the final
construction plans and outline specifications (the "Construction Drawings"). The
final Construction Drawings shall be incorporated into this Lease as EXHIBIT F
and shall be the final and determinative description of the Landlord's Work.
Landlord shall perform Landlord's Work by entering into a cost plus a fee with
guaranteed maximum price contract for completion of the Landlord's Work with
Dacon Corporation ("Dacon") of Natick, Massachusetts, the general contractor for
the Base Building and improvements to the Land. Tenant shall have no
relationship with the contractor except to the extent of Tenant's obligations to
participate in the finalization of the Final Schematic Plan of Landlord's Work,
and Tenant's approval of the final Construction Drawings.
7.3 SCHEDULE. Design, approval by Tenant and completion of Landlord's Work
shall be accomplished under the following phases and time periods:
a. Preliminary. Tenant has previously approved Final Schematic Plans
drafted by PDA. Landlord has contracted with PDA for the completion of
the Construction Drawings that will become the final Landlord's Work.
Landlord has provided Tenant with a form of a contract to be used
between Landlord and the contractor chosen to complete Landlord's Work.
b. October 16, 1998. Landlord will provide Tenant with Dacon's guaranteed
maximum price ("Dacon's GMP") for the cost of completing Landlord's
Work. Tenant will provide Landlord with its contractor's, ("Tenant's
Contractor"), guaranteed maximum price. The contractor chosen by Tenant
must be approved by Landlord in writing.
(i) If Dacon's GMP is at or below the Allowance, the Landlord shall
notify Tenant of Dacon's GMP but Landlord shall not be required to
seek the permission of the Tenant before commencing Landlord's
Work.
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(ii) If Dacon's GMP is within $20,000 of the Allowance, Tenant may
either (a) conduct value engineering so as to reduce the cost of
Landlord's Work; or (b) agree to Dacon's GMP.
(iii) If Dacon's GMP is $20,000 or more over the Allowance and Tenant's
Contractor is able to complete the Landlord's Work for less than
Dacon's GMP, then:
(a) Landlord shall have the opportunity to negotiate with Dacon
to reduce Dacon's GMP and if Dacon will not lower its GMP to
match Tenant's Contractor's price, the Landlord shall
negotiate and enter into a contract with Tenant's Contractor
for the completion of Landlord's Work. Said contract with
Tenant's Contractor will be in substantially the same form as
provided to Tenant by Landlord. Tenant's Contractor must
execute the contract with Landlord within five (5) business
days of notice to the Tenant's Contractor that it has been
chosen to complete the Landlord's Work. If Tenant's
Contractor fails to execute the contract within five (5)
business days, Landlord will enter into a contract with Dacon
to complete the Landlord's Work.
c. On or before October 30, 1998. Landlord will deliver the final
Construction Drawings to the Tenant. Tenant shall have two (2) days to
approve the Construction Drawings or to set forth its reasons for
disapproval. If Tenant makes any changes to the Construction Drawings
that are inconsistent with the Final Schematic Plans, this will
constitute a Tenant Delay.
7.4 OTHER CONSTRUCTION PROVISIONS.
a. Landlord shall permit Tenant access (at Tenant's sole risk) for purpose
of installing equipment and furnishings in the Premises prior to
Tenant's taking possession of the Premises if it can be done without
interference with Landlord's Work in the Premises and/or in other
portions of the Building and in harmony with Landlord's contractors and
subcontractors, including, without limitation, in accordance with any
labor agreements Landlord's contractors or subcontractors may be parties
to.
b. Tenant's Contractor Delay.
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(i) If Tenant's Contractor shall be the contractor chosen to complete
Landlord's Work and if, for any reason, due to the fault of
Tenant's Contractor, but not Force Majeure, the Premises have not
been delivered to Tenant with Landlord's Work Substantially
Complete on or before ninety (90) days after the Estimated
Commencement Date, Tenant shall have the right to terminate this
Lease, by written notice to the Landlord given within seven (7)
days of the expiration of the ninety (90) day period. If Tenant
does not issue such notice within the seven (7) day period and
Landlord delivers the Premises with all the Landlord's Work
Substantially Complete, Tenant's right to terminate under this
subsection 7.4(b)(i) shall terminate and be of no further force or
effect.
(ii) If, for any reason, due to the fault of Tenant's Contractor or
Force Majeure, the Premises have not been delivered to Tenant with
the Landlord's Work Substantially Complete on or before one
hundred fifty (150) days after the Estimated Commencement Date,
Tenant shall have the right to terminate this Lease by written
notice to the Landlord given within seven (7) days of the
expiration of the one hundred fifty (150) day period. If Tenant
does not issue such notice with the seven (7) day period and
Landlord delivers the Premises with all the Landlord's Work
Substantially Complete, Tenant's right to terminate under this
subsection 7.4(b)(ii) shall terminate and be of no further force
or effect.
7.5 REPAIRS TO BE MADE BY LANDLORD. Except as otherwise provided in this
Lease, Landlord agrees to keep in good order, condition and repair, the roof,
the exterior walls and the common areas of the Building, insofar as any of the
foregoing affects the Premises. Landlord shall in no event be responsible to
Tenant for the condition of glass in and about the Premises or for the doors
leading to the Premises, or for any condition in the Premises or the Building
caused by any act or neglect of Tenant or any contractor, agent, employee or
invitee of Tenant, or anyone claiming by, through or under Tenant.
Landlord shall not be responsible to make any improvements or repairs to the
Building or the Premises other than as expressed in this Section 7.5 unless
expressly otherwise provided in this Lease. Landlord shall never be liable for
any failure to make repairs which, under the provisions of this Section 7.5 or
elsewhere in this Lease, Landlord has undertaken to make unless: (i) Tenant has
given notice to Landlord of the need to make such repairs as a result of a
condition in the Building or in the Premises requiring any repair for which
Landlord is responsible; and (ii) Landlord has failed to commence to make
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such repairs within a reasonable time after receipt of such notice if any
repairs are, in fact, necessary.
7.6 TENANT'S AGREEMENT. Tenant agrees that Tenant will keep neat and clean
and maintain in good order, condition and repair, the Premises and every part
thereof throughout the Lease Term, excepting only those repairs for which
Landlord is responsible under the terms of this Lease and damage by fire or
other casualty or as a consequence of the exercise of the power of eminent
domain, and shall surrender the Premises at the end of the term, in such
condition. Without limitation, Tenant shall maintain and use the Premises in
accordance with all applicable laws, ordinances, governmental rules and
regulations, directions and orders of officers of governmental agencies having
jurisdiction and in accordance with the requirements of Landlord's and/or
Tenant's insurers, and shall, at Tenant's own expense, obtain and maintain in
effect all permits, licenses and the like required by applicable law. Tenant
shall not permit or commit any waste, and Tenant shall be responsible for the
cost of repairs which may be made necessary by reason of damage to any areas in
the Building, including the Premises, by Tenant, Tenant's contractors or
Tenant's agents, employees or invitees, or anyone claiming by, through or under
Tenant. Landlord may replace as needed any bulbs and ballasts in the Premises
during the Lease Term at Tenant's cost and expense, or Landlord may require
Tenant to replace the same, at Tenant's cost and expense.
If repairs are required to be made by Tenant pursuant to the terms hereof,
Landlord may demand that Tenant make the same forthwith, and if Tenant refuses
or neglects to commence such repairs and complete the same with reasonable
dispatch after such demand, Landlord may (but shall not be required to do so)
make or cause such repairs to be made and shall not be responsible to Tenant for
any loss or damage that may accrue to Tenant's stock or business by reason
thereof unless caused by Landlord's negligence or willful misconduct. If
Landlord makes or causes such repairs to be made, Tenant agrees that Tenant will
forthwith, on demand, pay to Landlord the reasonable cost thereof, and if Tenant
shall default in such payment, Landlord shall have the remedies provided for the
nonpayment of rent or other charges payable hereunder.
7.7 FLOOR LOAD - HEAVY MACHINERY. Tenant shall not place a load upon any
floor in the Premises exceeding the lesser of (a) the floor load per square foot
of area which such floor was designed to carry as certified by Landlord's
architect and (b) the floor load per square foot of area which is allowed by
law. Landlord reserves the right to prescribe the weight and position of all
business machines, equipment and mechanical equipment, including scales, which
shall be placed so as to distribute the weight. Business machines, equipment
and mechanical equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient, in Landlord's judgment, to
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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 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 exonerate, indemnify and save Landlord
harmless against and from any liability, loss, injury, claim or suit resulting
directly or indirectly from such moving. Tenant shall schedule such moving at
such times as Landlord shall reasonably require for the convenience of the
normal operations of the Building.
ARTICLE VIII
SERVICES TO BE FURNISHED BY LANDLORD AND UTILITY CHARGES
8.1 LANDLORD'S SERVICES. Landlord covenants during the Lease Term:
a. to provide heating and air-conditioning in the Premises during Normal
Building Operating Hours during the normal heating and air-conditioning
seasons;
b. to furnish hot and cold water for ordinary toilet, lavatory and drinking
purposes. If Tenant requires water for any other purpose, including
without limitation, in connection with the business conducted in the
Premises, Tenant shall pay the Landlord an appropriate charge stipulated
by Landlord to reimburse Landlord for the cost of such water and related
sewer use charge (including a charge to reimburse Landlord for the cost
of metering Tenant's usage), provided that in no event shall such charge
exceed the amount which Tenant would have had to pay to the public
utility directly for the water requirements of Tenant in the Premises;
c. to furnish non-exclusive passenger elevator service;
d. to provide non-exclusive freight elevator service, subject to scheduling
by Landlord;
e. to furnish, through Landlord's employees or independent contractors, the
services listed in EXHIBIT H, if any;
f. to furnish, through Landlord's employees or independent contractors,
additional Building operation services upon reasonable advance request
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of Tenant at rates from time to time established by Landlord to be paid
by Tenant provided the same may be reasonably and conveniently provided
by Landlord. Tenant hereby agrees to pay to Landlord the cost of such
services as Additional Rent upon demand by Landlord; and
g. to provide, during those hours not considered Normal Building Operating
Hours, heating and air-conditioning, only when specifically requested by
the Tenant. Any cost of providing heating and air conditioning to the
Premises shall be borne entirely by the Tenant (and, if applicable,
others requesting such services). Tenant shall pay Landlord the charge
incurred by Landlord for the cost of such heating and air-conditioning
use.
8.2 PAYMENT OF UTILITY CHARGES. With respect to electricity for lighting and
equipment in the Premises, if the same is separately metered, Tenant agrees to
pay all bills therefor promptly to the utility company furnishing the same and,
if requested by Landlord, provide Landlord with evidence of such payment. If
such utility company shall have a lien on the Premises for nonpayment of such
charges and Tenant shall fail at any time to make payment of same, without
limitation of Landlord's rights on account of such failure, Tenant shall
thereafter, if requested by Landlord, pay to Landlord, when monthly Annual Base
Rent is next due and thereafter on Landlord's demand, an amount reasonably
estimated by Landlord to be sufficient to discharge any such lien in the event
of a further failure of Tenant to pay any such electric charges when due.
Landlord shall hold the amounts from time-to-time deposited under this Section
8.2 as security for payment of such electric charges without interest to Tenant
and may, without limitation of remedies on account of Tenant's failure to make
any subsequent payment of electric charges, use such amounts for such payments.
Such amount or such portion thereof as shall be unexpended at the expiration of
this Lease shall, upon full performance of all Tenant's obligations hereunder,
be repaid to Tenant without interest.
8.3 ENERGY CONSERVATION. Notwithstanding anything to the contrary in this
Article VIII or elsewhere in this Lease, Landlord shall have the right to
institute such policies, programs and measures as may be reasonably necessary or
desirable, in Landlord's discretion, for the conservation and/or preservation of
energy or energy related services, or as may be required to comply with any
applicable codes, rules and regulations, whether mandatory or voluntary.
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ARTICLE IX
REAL ESTATE TAXES AND OTHER EXPENSES
9.1 TENANT'S SHARE OF REAL ESTATE TAXES.
a. For the purposes of this Section:
(i) The term "Tax Period" shall mean the period during which Taxes (as
hereinafter defined) are required to be paid under applicable law.
Thus, under the law presently in effect in the Commonwealth of
Massachusetts, Tax Period means the period from July 1 of a
calendar year to June 30 of the subsequent calendar year. Suitable
adjustment in the determination of Tenant's obligation under this
Section 9.1 shall be made in the computation for any Tax Period
which is greater than or less than twelve (12) full calendar
months.
(ii) The term "Base Tax Year" shall refer to the Fiscal Year 2000
(i.e., July 1, 1999 to June 30, 2000). In calculating, the Base
Tax Year, Landlord shall use the tax rate from Fiscal Year 2000 as
provided by the Tax Collector of the City of Marlborough and shall
apply such tax rate by the amount of the assessment for the Land
and Building once it is fully assessed as determined by the
Assessor for the City of Marlborough.
(iii) The term "Taxes" shall mean all real estate taxes and assessments
(which term, for purposes of this provision, shall include water
and sewer use charges), special or otherwise, levied or assessed
upon or with respect to the Building and the Land or any part
thereof and ad valorem taxes for any personal property of Landlord
used in connection therewith. Should the Commonwealth of
Massachusetts, or any political subdivision thereof, or any other
governmental authority having jurisdiction over the Building and
the Land, (1) impose a tax, assessment, charge or fee, which
Landlord shall be required to pay, by way of substitution for or
as a supplement to such real estate taxes and ad valorem personal
property taxes, or (2) impose an income or franchise tax or a tax
on rents in substitution for or as a supplement to a tax levied
against the Building or the Land or any part thereof and/or the
personal property used in connection with the Building or the Land
or any part thereof, all such taxes, assessments, fees or charges
(hereinafter defined as "in lieu of taxes") shall be deemed to
constitute Taxes hereunder. Taxes shall also include, in the year
paid, all fees and costs reasonably incurred by Landlord in
seeking to obtain a reduction of, or a limit on the increase in,
any Taxes, regardless of whether any reduction or limitation is
obtained. Except as hereinabove provided with regard to "in lieu
of taxes", Taxes shall not include any inheritance, estate,
succession, transfer, gift, franchise, net income or capital stock
tax.
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b. In the event that the Taxes imposed with respect to the Building and the
Land shall be greater during any Tax Period than the Base Tax Amount:
(i) Tenant shall pay to Landlord, as Additional Rent, Tenant's
Proportionate Share of the amount by which the Taxes imposed with
respect to the Building and the Land for such Tax Period exceed
the Base Tax Amount, apportioned for any fraction of a Tax Period
contained within the Term, and
(ii) Landlord shall submit to Tenant a statement setting forth the
amount of such Additional Rent, and within fifteen (15) days after
the delivery of such statement (whether or not such statement
shall be timely), Tenant shall pay to Landlord the payment
required under subparagraph (i) above. So long as Taxes shall be
payable in installments under applicable law, Landlord may submit
such statements to Tenant in similar installments. The failure by
Landlord to send any statement required by this subparagraph shall
not be deemed to be a waiver of Landlord's right to receive such
Additional Rent.
c. Tenant's share of Taxes shall be equitably adjusted for and with respect
to any portion of the Term which does not include an entire Tax Period.
d. If Tenant is obligated to pay any Additional Rent as aforesaid with
respect to any Tax Period or fraction thereof during the Term, then
Tenant shall pay, as Additional Rent, on the first day of each month of
the next ensuing Tax Period, estimated monthly tax escalation payments
in an amount from time to time reasonably estimated by Landlord to be
sufficient to provide Landlord, in the aggregate, a sum equal to
Tenant's Proportionate Share of the Taxes in excess of the Base Tax
Amount, ten (10) days, at least, before the day on which payments on
account of Taxes by Landlord would become delinquent. Estimated monthly
tax escalation payments for each ensuing Tax Period shall be made
retroactively to the first day of the Tax Period in question. Following
the close of each Tax Period for and with respect to which Tenant is
obligated to pay any Additional Rent as aforesaid, Landlord shall submit
the statement set forth in paragraph (b)(ii) of this Section 9.1 and in
the event the total of the estimated monthly tax escalation payments
theretofore made by Tenant to Landlord for such Tax Period does not
equal Tenant's Proportionate Share of the Taxes in excess of the Base
Tax Amount for such Tax Period, Tenant shall pay any deficiency to
Landlord as shown by such statement within fifteen (15) days after the
delivery of such statement (whether or not such statement shall be
25
timely). If the total of the estimated monthly tax escalation payments
paid by Tenant during such Tax Period exceed the actual amount of
Tenant's Proportionate Share of the Taxes in excess of the Base Tax
Amount for said Tax Period, Landlord shall credit the amount of such
overpayment against subsequent obligations of Tenant under this Lease
(or refund such overpayment if the Term has ended and Tenant has no
further obligations to Landlord under the Lease).
e. When the applicable tax bill is not available prior to the end of the
Term, then a tentative computation shall be made by Landlord on the
basis of the Taxes for the next prior Tax Period, with a final
adjustment to be made between Landlord and Tenant promptly after
Landlord shall have received the applicable tax bill.
f. Payments by Tenant to Landlord on account of Taxes shall not be
considered as being held in trust, in escrow or the like, by Landlord;
it being the express intent of Landlord and Tenant that Tenant shall in
no event be entitled to receive interest upon, or any payments on
account of earnings or profits derived from, such payments by Tenant to
Landlord. Landlord shall have the same rights and remedies for the non-
payment by Tenant of any amounts due on account of such Taxes as
Landlord has hereunder for the failure of Tenant to pay the Annual Base
Rent.
9.2 TENANT'S SHARE OF OPERATING EXPENSES.
a. For the purposes of this Section:
(i) The term "Operating Year" shall mean each successive fiscal year
(as adopted by Landlord) in which any part of the Term of this
Lease shall fall.
(ii) The term "Operating Expenses" shall mean all expenses, costs and
disbursements of every kind and nature, reasonably paid or incurred
by Landlord in operating, owning, managing, leasing, repairing and
maintaining the Building, the Land and their appurtenances
including, but without limitation: premiums for fire, casualty,
liability and such other insurance as Landlord may from time to
time maintain; security expenses; compensation and all fringe
benefits, workmen's compensation insurance premiums and payroll
taxes paid by Landlord to, for or with respect to all persons
engaged in operating, maintaining, managing or cleaning at or below
the grade of building manager; fuel costs; steam, water, sewer,
electric, gas, telephone, and other utility charges not otherwise
billed to tenants by Landlord or the utility; expenses
26
incurred in connection with the central plant furnishing heating,
ventilating (including maintaining and repairing ventilating fans
and fan rooms); and air conditioning to the Building, costs of
lighting, costs of repairing and maintaining fire protection
systems; costs of building and cleaning supplies and equipment
(including rental); cost of maintenance, cleaning and repairs; cost
of snow plowing or removal, or both, and care of interior and
exterior landscaping; payments to independent contractors under
contracts for cleaning, operating, management, maintenance and/or
repair (which payments may be to affiliates of Landlord provided
such charges are at reasonable and customary market rates) and a
management fee of four percent (4%) of gross Building rental
revenue; all other expenses paid in connection with cleaning,
operating, management, maintenance and repair, costs of any capital
improvements required by law or intended to reduce Operating
Expenses, regardless of whether said capital improvement actually
reduces said Operating Expenses, completed after the original
construction of the Building, amortized by Landlord over their
useful life determined in accordance with generally accepted
accounting practices, with interest on the unamortized amount at
the rate of the greater of (i) 12% per annum or (ii) 2% per annum
above the base rate of interest charged from time to time by
BankBoston or any successor or substitute regional bank selected by
Landlord (but in no event at a rate which is more than the highest
lawful rate allowable in the Commonwealth of Massachusetts).
Operating Expenses shall not, however, include the following:
(a) Costs of alterations of any tenant's premises or brokerage or
legal fees for a particular tenant and not for the benefit of
the Building or any group of tenants therein;
(b) Principal or interest payments on loans secured by mortgages
or trust deeds on the Building and/or on the Land;
(c) costs of correcting defects in the original construction of
the Building;
(d) costs of services provided to other tenants of the Building
(for which a separate charge is made) and not to all tenants,
generally; and
(e) costs of items covered by insurance or condemnation awards.
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If less than ninety-five percent (95%) of the Building's rentable area shall
have been occupied by tenant(s) at any time during any Operating Year, Operating
Expenses shall be determined for such Operating Year to be an amount equal to
the like expense which would normally be expected to be incurred had such
occupancy been ninety-five percent (95%) throughout such Operating Year.
Notwithstanding anything to the contrary set forth herein, for any year
(including, without limitation, the Base Operating Year) in which other than
ninety-five percent (95%) of the rentable space in the Building is leased during
the entire year, all "Variable Components," as that term is defined below, of
Operating Expenses for such year shall be grossed-up, employing sound accounting
and property management principles, to the amount such Variable Components would
have been in the event the Building had been ninety-five percent (95%) leased
and occupied during the entire year by tenants paying full rent and the adjusted
amount of the Variable Components shall be used in determining Operating
Expenses for such year. "Variable Components" shall be those components that
vary based upon occupancy levels.
b. After the expiration of each Operating Year, Landlord shall furnish
Tenant with a statement setting forth the Operating Expenses for such
Operating Year. Such statement shall be accompanied by a computation of
the amount, if any, of the Additional Rent payable to Landlord pursuant
to this Section.
c. In the event the Operating Expenses during any Operating Year shall be
greater than the Base Operating Expenses, Tenant shall pay to Landlord,
as Additional Rent, an amount equal to Tenant's Proportionate Share of
the excess of the Operating Expenses for such Operating Year over and
above the Base Operating Expenses.
d. Said Additional Rent shall, with respect to the Operating Years in which
the Lease Commencement Date and end of the Term of this Lease fall, be
adjusted to that proportion thereof as the portion of the Term of this
Lease falling within such Operating Year bears to the full Operating
Year. If Landlord shall change its fiscal year, appropriate adjustment
shall be made for any Operating Year less than twelve months which may
result.
e. Any Additional Rent payable by Tenant under this Section 9.2 shall be
paid within fifteen (15) days after Landlord has furnished Tenant with
the statement described above.
f. If with respect to any Operating Year or fraction thereof during the
Term, Tenant is obligated to pay any Additional Rent as aforesaid, then
28
Tenant shall pay, as Additional Rent, on the first day of each month of
the next ensuing Operating Year, estimated monthly operating escalation
payments in an amount from time to time reasonably estimated by Landlord
to be sufficient to cover, in the aggregate, a sum equal to Tenant's
Proportionate Share of the Operating Expenses in excess of the Base
Operating Expenses for the next ensuing Operating Year. Estimated
monthly operating escalation payments for each ensuing Operating Year
shall be made retroactively to the first day of the Operating Year in
question. If the estimated monthly operating escalation payments
theretofore made such Operating Year by Tenant exceed Tenant's
Proportionate Share of the Operating Expenses in excess of the Base
Operating Expenses for such Operating Year according to the statement
furnished Tenant by Landlord pursuant to paragraph (b) of this Section
9.2, Landlord shall credit the amount of such overpayment against
subsequent obligations of Tenant under this Lease (or refund such
overpayment if the Term has ended and Tenant has no further obligation
to Landlord under the Lease); but if Tenant's Proportionate Share of the
Operating Expenses in excess of the Base Operating Expenses for said
Operating Year is greater than the estimated monthly operating
escalation payments theretofore made on account of such period, Tenant
shall make suitable payment to Landlord within the time set forth in
paragraph (e) of this Section 9.2.
g. Tenant acknowledges that if Landlord is not furnishing any particular
work or service, the cost of which, if performed by Landlord, would be
included in Operating Expenses, to any tenant who has undertaken to
perform such work or service in lieu of the performance thereof by
Landlord, Operating Expenses shall be deemed for purposes of determining
Operating Expenses under this Section to be increased by an amount equal
to the additional Operating Expenses which would reasonably have been
incurred during such period by Landlord if it had at its own expense
furnished such work or service to such tenant.
h. Landlord shall maintain at all times during the term of this Lease,
complete and accurate books of account and records prepared in
accordance with generally accepted accounting principles with respect to
Operating Expenses and Taxes and shall retain such books and records, as
well as contracts, bills, vouchers and checks, and such other documents
as are reasonably necessary to properly audit the Operating Expenses and
Taxes. Upon reasonable notice from Tenant, Landlord shall make available
for Tenant's inspection (or inspection performed by Tenant's accountant
and/or consultants), Landlord's books and records relating to the
Operating Expenses and Taxes for any year. If an audit, review or
inspection by a Tenant or Tenant's accountant or consultant alleges an
overbilling, Tenant may submit a claim for the overbilled
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amount to Landlord detailing the nature of the overbilling, and Landlord
shall have thirty (30) days to pay such amount or contest the claim by
giving notice thereof to Tenant. If Landlord's statement is determined
to be in error, Landlord shall reimburse Tenant within thirty (30) days
following such determination for any overpayment of Operating Expenses
or Taxes. The parties will cooperate to reach agreement or submit the
dispute to arbitration in Boston, Massachusetts before a single
arbitrator under the Commercial Rules of the American Arbitration
Association who shall render a written decision with factual findings
and conclusions which shall be final and binding upon and enforceable by
the parties. Reference to arbitration in this Lease shall be limited
solely to a dispute under this Section 9.2h.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to indemnify and save harmless
Landlord from and against all claims of whatever nature arising from any act,
omission or negligence of Tenant, or Tenant's contractors, licensees, invitees,
agents, servants or employees, or arising from any accident, injury or damage
whatsoever (other than as a result of Landlord's negligence or willful
misconduct) caused to any person, or to the property of any person, occurring
after the commencement of construction work by Tenant, and until the end of the
Lease Term and thereafter, so long as Tenant is in occupancy of any part of the
Premises, within the Premises, or arising from any accident, injury or damage
occurring outside of the Premises, where such accident, damage or injury results
or is claimed to have resulted from an act or omission on the part of Tenant or
Tenant's agents, employees, independent contractors or invitees. In case
Landlord or any other party so indemnified shall be made a party to any
litigation commenced by or against Tenant, then Tenant shall protect and hold
them harmless and shall pay all costs, expenses and reasonable attorney's fees
incurred or paid by them in connection with such litigation.
This indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities incurred in or in connection with any such claim
or proceeding brought thereon, and the defense thereof. Notwithstanding any
other provisions of this Lease, the obligations of the Tenant pursuant to this
Section, shall remain in full force and effect after the termination of this
Lease until the expiration of the period stated in the applicable statute of
limitations during which a claim, cause of action or prosecution relating to the
matters herein described may be brought and the payment in full or the
satisfaction of such claim, cause of action, or
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prosecution and the payment of all expenses and charges incurred by the
Landlord, or its officers, partners, employees, servants or agents, relating to
the enforcement of the provisions herein specified.
10. PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force and
effect from the date on which Tenant first enters the Premises for any reason,
throughout the Lease Term, and thereafter so long as Tenant is in occupancy of
the Premises, a policy of Comprehensive General Liability insurance in
accordance with the broadest form of such coverage as is available from time to
time in the jurisdiction in which the Premises are located. The minimum limits
of liability of such insurance shall be $2 million per occurrence, Bodily Injury
Liability (including death), and $500,000 pert occurrence, Property Damage
Liability, or shall be for such higher limits, if directed by Landlord, as are
customarily carried in that area in which the Building is located upon property
similar to the Building reasonably or required by any lender of Landlord at any
time during the Term or any Extended Term. Tenant further agrees that such
insurance policy shall include Landlord as an additional named insured and shall
contain a clause that the insurer will not cancel or change the insurance
without first giving Landlord thirty (30 days' prior written notice.
Furthermore, Tenant shall deliver to Landlord or its designated management
company a copy of the policy or a certificate of insurance showing Landlord as
named additional insured
The policy shall also include, but shall not be limited to, the following
extensions of coverage:
a. Contractual Liability, covering Tenant's liability assumed under
this Lease:
b. Personal Injury Liability in the amount of $2 million annual
aggregate, expressly deleting the exclusion relation to contractual
assumptions of liability;
c. Civil Assault and Battery Coverage.
Tenant further agrees to maintain a Workers' Compensation and Employers'
Liability Insurance Policy. The limit of liability as respects Employers'
Liability coverage shall be no less than $100,00 per accident.
Except for Workers' Compensation and Employers' Liability coverage, Tenant
agrees that Landlord (and such other persons as are in privity of estate with
Landlord as may be set out in notice from time to time) shall be named as
additional insureds. Further, all policies shall be noncancelable and
nonamendable with respect to Landlord and Landlord's said designees without
thirty (30) days' prior written notice to Landlord. A Certificate of Insurance
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evidencing the above agreements shall be delivered to Landlord upon the
execution of this lease and, in each instance, as and when amended, extended,
renewed or replaced. A duplicate original, true copy, certified in writing to be
so shall be given to Landlord upon request.
10.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to use and occupy the Premises and to
use such other portions of the Building as Tenant is herein given the right to
use at Tenant's own risk; and Landlord shall have no responsibility or liability
for any loss of or damage to fixtures or other personal property of Tenant for
any reason whatsoever other than due to Landlord's negligence or willful
misconduct. The provisions of this Section shall be applicable from and after
the execution of this Lease and until the end of the Lease Term, and during such
further period as Tenant may use or be in occupancy of any part of the Premises
or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement may
be made effective according to law, Tenant agrees that Landlord shall not be
responsible or liable to Tenant, or to those claiming by, through or under
Tenant, for any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or any part of the Building, or
otherwise or for any loss or damage resulting to Tenant or those claiming by,
through or under Tenant, or its or their property, from latent defects, the
breaking, bursting, stopping or leaking of electric cables and wires, water,
gas, sewer or steam pipes, and from roof leaks and the like unless caused by
Landlord's negligence or willful misconduct.
10.5 FIRE AND HAZARD INSURANCE. The Landlord shall keep the Premises insured
against loss or damage by fire, with the usual extended coverage endorsements
and such other insurance as the then holder of any first mortgage which includes
the Premises shall require, in amounts not less than eighty percent (80%) of the
full replacement value thereof above foundation walls, with such deductibles as
the Landlord deems advisable, but specifically excluding any property or
improvements installed by or belonging to the Tenant.
10.6 ADDITIONAL INSURANCE. The Tenant also agrees that it shall continuously
keep its fixtures, merchandise (if any), equipment and other personal property
from time to time located in, on or about the Premises, and all leasehold
improvements to the Premises constructed or installed by the Tenant insured by
reputable, duly licensed insurance companies against loss or damage by fire with
the usual extended coverage endorsements. Within a reasonable time after the
Lease Commencement Date, no less often than annually thereafter, and at any
other time upon the reasonable request of the Landlord, the Tenant
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shall furnish to the Landlord evidence of such continuous insurance coverage
reasonably satisfactory to the Landlord. It is understood and agreed that the
Tenant assumes all risk of damage to its own property arising from any cause
whatsoever, including, without limitation, loss by theft or otherwise, unless
caused by Landlord's negligence or willful misconduct.
10.7 ADDITIONAL RESTRICTIONS. Tenant further agrees that it will not keep,
use, sell or offer for sale in or about the Premises, any article which may be
prohibited by Landlord's or Tenant's fire insurance policy then in effect
covering the Premises and/or the Building or any of its contents. In the event
that Tenants occupancy causes any increases of premium of the fire and/or
casualty insurance policy covering the Building or any part thereof above the
rate for an office building, Tenant shall pay the additional premium on the fire
and/or casualty insurance policy by reason thereof.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHT OF ACCESS. Landlord shall have the right, upon
reasonable notice to Tenant, except in the event of an emergency, to enter the
Premises at all reasonable business hours and after normal business hours for
the purpose of inspecting or making repairs to the same, and Landlord shall also
have the right to make access available upon reasonable notice to the Tenant,
except in the event of an emergency, at all reasonable hours to prospective or
existing mortgagees or purchasers of any part of the Building.
11.2 EXHIBITION OF SPACE TO PROSPECTIVE TENANTS. For a period of nine (9)
months prior to the expiration of the Lease Term, Landlord may have reasonable
access to the Premises at all reasonable hours for the purpose of exhibiting,
the same to prospective tenants, and may post suitable notice on the Premises
advertising the same for rent.
ARTICLE XII
DAMAGE AND DESTRUCTION
12.1 NOTICE. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or of defects therein or in any fixtures or equipment.
However, such notices, or any occurrence giving rise thereto, shall not impose
any duty on Landlord except as otherwise expressly provided herein.
If the Premises or the Building, are damaged by fire or other insured casualty,
Landlord will give Tenant notice of the number of days Landlord expects will be
needed to repair such damage, as determined by Landlord, and the election
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(if any) which Landlord has made according to this Article XII. Such notice will
be given on or before the thirtieth (30th) day (the "Notice Date") after the
fire or other insured casualty.
12.2 DESTRUCTION OF BUILDING OR PREMISES. If the Premises or the Building are
damaged by fire or other insured casualty to an extent which may be repaired
within one hundred twenty (120) days after the Notice Date, Landlord will repair
the damage with reasonable diligence, and will use reasonable diligence to do so
within one hundred twenty (120) days after the Notice Date. Landlord reserves
the right to extend such date for completion of said repairs for one (1) thirty
(30) day extension if the Landlord is diligently pursuing repairs to the
Building or Premises and is unable to complete said repairs within one hundred
twenty (120) days. If, at the expiration of the thirty (30) day extension
Landlord has not completed the necessary repairs, then Landlord will advise
Tenant in writing of the time needed to complete said repairs. Tenant shall
have the option to terminate by giving written notice to Landlord, within seven
(7) days of the end of the extension period, of its intention to terminate. If
Tenant does not terminate in accordance with the process hereinbefore set forth,
then Tenant shall have waived its right to terminate this Lease under this
Section 12.2. In that event, this Lease will continue in full force and effect
except that Rent will be abated on a pro rata basis based on the rentable area
of the Premises of which use Tenant is deprived during the Repair Period from
the date of the fire or other insured casualty until the date that the Landlord
shall have substantially restored the Building and/or Premises (exclusive of any
of Tenant's fixtures, furnishings, equipment and the like or work performed
therein by Tenants) to substantially the condition in which the Building and/or
Premises were in prior to such damage (the "Repair Period").
If the Premises or the Building are damaged by fire or other insured casualty to
an extent which may not be repaired within one hundred twenty (120) days after
the Notice Date but may be repaired within one hundred fifty (150) days after
the Notice Date, then, at Landlord's option, Landlord will repair such damage
with reasonable diligence, and in all events within one hundred fifty (150) days
after the Notice Date. Landlord reserves the right to extend the date for
completion of said repairs for one (1) thirty (30) day extension if the Landlord
is diligently pursuing repairs to the Building or Premises and is unable to
complete said repairs within one fifty (50) days. If, at the expiration of the
thirty (30) day extension Landlord has not completed the necessary repairs, then
Landlord will advise Tenant in writing of the time needed to complete said
repairs. Tenant shall have the option to terminate by giving written notice to
Landlord within seven (7) days of the end of the extension period of its
intention to terminate. If Tenant does not terminate in accordance with the
process hereinbefore set forth, then Tenant shall have waived its right to
terminate this Lease under this Section 12.2. If Landlord elects to repair
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such damage, Rent will be abated on a pro rata basis during the Repair Period
based on the rentable area of the Premises of which Tenant is deprived during
the Repair Period. If Landlord does not elect to repair such damage, this Lease
will terminate on the Notice Date, and Rent will be abated on a pro rata basis
based on the rentable area of the Premises of which use Tenant is deprived
during the Repair Period from the date of the fire or other insured casualty
until the Notice Date based on the usable area of the Premises of which use
Tenant is deprived until the Notice Date.
If the Premises or the Building are damaged by fire or other insured casualty to
an extent which may not be repaired within one hundred fifty (150) days after
the commencement of repair, as reasonably determined by Landlord, then (i)
Landlord may cancel this Lease as of the date of such damage by written notice
given to Tenant on or before the Notice Date, or (ii) Tenant may cancel this
Lease by written notice given to Landlord within ten (10) days after Landlord's
delivery of a notice that the repairs cannot be made within such one hundred
fifty (150) day period. If neither Landlord nor Tenant so elects to cancel this
Lease within the prescribed periods, Landlord will repair the Building and
Premises with reasonable diligence and Rent will be abated on a pro rata basis
during the Repair Period based on the rentable area of the Premises of which use
Tenant is deprived during the Repair Period. So long as Landlord is making
diligent efforts to make said repairs to the Building and/or Premises, Landlord
may extend the date for completion of the necessary repairs for one (1) thirty
(30) day extension period. If, at the expiration of the thirty (30) day
extension Landlord has not completed the necessary repairs, then Landlord will
advise Tenant in writing of the time needed to complete said repairs. Tenant
shall have the option to terminate by giving written notice to Landlord within
seven (7) days of the end of the extension period of its intention to terminate.
If Tenant does not terminate in accordance with the process hereinbefore set
forth, then Tenant shall have waived its right to terminate this Lease under
this Section 12.2.
If the Premises or the Building are damaged by any uninsured casualty, Landlord
will have the option to repair such damage with reasonable diligence or cancel
this Lease as of the date of such casualty by written notice to the Tenant on or
before the Notice Date. If Landlord elects to repair such damage, Rent will be
abated on a pro rata basis from the date of the uninsured casualty until the
repair of such damage is completed based on the Rentable area of the Premises of
which Tenant is deprived during such Repair Period. If, pursuant to the
reasonable estimation of Tenant, the repairs elected to be performed by Landlord
pursuant to this Section 12.2 of this Article XII will exceed one hundred fifty
(150) days, then Tenant will have the right to terminate this Lease as of the
Notice Date. If Tenant so elects to terminate this Lease, Rent will be abated on
a pro rata basis from the uninsured casualty until the Notice Date based on the
Rentable area of Premises of which use Tenant is deprived
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until the Notice Date. If any such damage by fire or other casualty is the
result of the willful conduct or negligence or failure to act of Tenant, its
agents, contractors, employees or invitees, there will be no abatement of Rent
as otherwise provided for in this Article XII.
In the event Landlord, in its sole judgment, determines that restoration of the
entire Building or Premises is not practical, Landlord will give notice to
Tenant on or prior to the Notice Date of said casualty which notice shall
specify Landlord's intent not to repair the Building or Premises and this Lease
will terminate on the Notice Date, and Rent will be abated on a pro rata basis
from the date of the fire or other insured casualty until the Notice Date based
on the rentable area of the Premises of which use Tenant is deprived until the
Notice Date.
In no event shall Landlord be obligated in connection with the restoration of
the Premises, as aforesaid, to expend an amount in excess of the proceeds of
insurance recovered with respect thereto. In the event the Premises shall be
damaged by fire or other casualty resulting from the act or neglect of Tenant,
its agents, contractors, employees or invitees, and this Lease shall not be
terminated by Landlord as a result of such damage, Tenant shall not be released
from any of its obligations hereunder including, without limitation, its duty to
pay the Annual Base Rent and the Additional Rent payable by Tenant under Article
VIII hereof without abatement or reduction.
ARTICLE XIII
EMINENT DOMAIN
13.1 GENERAL. If all or substantially all of a portion ["substantially all"
hereby defined to mean fifty-one percent (51 %) or more of the rentable area] of
the Premises are taken by exercise of the power of eminent domain (or conveyed
by Landlord in lieu of such exercise), this Lease will terminate on a date (the
"Termination Date") which is the earlier of the date upon which the condemning
authority takes possession of the Premises or the date on which title to the
Premises is vested in the condemning authority, and from and after the
Termination Date, Tenant's obligation to pay rent under this Lease will cease.
If less than a substantial portion of the Premises is so taken, but such taking
is of at least one third (1/3) of the rentable area of the Premises, Tenant will
have the right to cancel this Lease by written notice to Landlord given within
twenty (20) days after the Termination Date. If all or substantially all of the
Project is so taken, Landlord may cancel this Lease by written notice to Tenant
given within thirty (30) days after the termination date. In the event of any
such taking, the entire award will be paid to Landlord and Tenant will have
36
no right or claim to any part of such award; provided, however, that Tenant will
have a right to assert a claim against the condemning authority in a separate
action for Tenant's relocation expenses and so long as Landlord's award is not
reduced by such claim. The termination of this Lease pursuant to this Article
XIII will not affect the rights of either Landlord or Tenant to such awards.
In the event that less than all or substantially all of the Premises are taken
by exercise of the power of eminent domain and, if 13.2 is applicable, Tenant
shall not have exercised its right to terminate thereunder, and in the
Landlord's sole determination it is practical to repair the remaining Premises
for occupancy by Tenant, including parking areas necessary for occupancy by the
Tenant as provided herein, Landlord shall notify Tenant within thirty (30) days
of the Termination Date of the extent of the Premises to remain subject to this
Lease and shall within one hundred fifty (150) days following said notice to
Tenant complete any repairs or restoration determined necessary by Landlord. The
Annual Base Rent and Additional Rent shall abate to the extent of reduction of
the Premises due to the taking and during the time a portion, if any, of the
remaining Premises are rendered untenantable, in such proportion as the portion
rendered untenable bears to the total.
If the taking agency takes only the right to possession of the Premises for a
fixed period of time or for the duration of an emergency or other temporary
condition (in any case, not to exceed six (6) months), then, notwithstanding
anything above provided, this Lease shall continue in full force and effect and
Annual Base Rent and Additional Rent shall be abated based on the extent and
term the Premises or any part thereof shall be unavailable.
13.2 AWARD. Landlord shall have and hereby reserves and accepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to the
Building, the Land, and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking, damage or
destruction, as aforesaid, and by way of confirming the foregoing, Tenant hereby
grants and assigns, and covenants with Landlord to grant and assign to Landlord
all rights to such damages or compensation. Nothing contained herein shall be
construed to prevent Tenant from prosecuting in any condemnation proceedings a
claim for the value of any Tenant's usual trade fixtures installed in the
Premises by Tenant at Tenant's expense and for relocation expenses, provided
that such action shall not affect the amount of compensation otherwise
recoverable by Landlord from the taking authority.
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ARTICLE XIV
LANDLORD'S REMEDIES
14.1 EVENTS OF DEFAULT. Any one of the following shall be deemed to be an
"Event of Default":
a. Failure on the part of Tenant to pay Annual Base Rent, Additional Rent
or other charges for which provision is made herein on or before the
date on which the same become due and payable and such failure continues
for ten (10) days after Landlord has sent to Tenant notice of such
default.
However, if: (i) Landlord shall have sent to Tenant two (2) notices of
such default, even though the same shall have been cured and this Lease
not terminated; and (ii) during the twelve (12) month period in which
said notice of default has been sent by Landlord to Tenant, Tenant
thereafter shall default in any monetary payment - the same shall be
deemed to be an Event of Default upon Landlord giving Tenant written
notice thereof, without the ten (10) day grace period set forth above.
b. With respect to a non-monetary default under this Lease, failure of
Tenant to cure the same within thirty (30) days following notice from
Landlord to Tenant of such default unless such default is not reasonably
capable of being cured within such thirty (30) day period, in which
event Tenant will not be in default so long as Tenant promptly commences
to cure such failure and thereafter diligently prosecutes such cure to
completion. Notwithstanding the thirty (30) day cure period provided in
the preceding sentence, Tenant shall be obligated to commence forthwith
and to complete as soon as possible the curing of such default; and if
Tenant fails so to do, the same shall be deemed to be an Event of
Default.
However, if: (i) Landlord shall have sent to Tenant two (2) notices of
such default, even though the same shall have been cured and this Lease
not terminated; and (ii) during the twelve (12) month period in which
said notice of default has been sent by Landlord to Tenant, Tenant
thereafter shall default in such non-monetary matter - the same shall be
deemed to be an Event of Default upon Landlord giving the Tenant written
notice thereof, and Tenant shall have no grace period within which to
cure the same.
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c. The occurrence of any of the following events: (i) the estate hereby
created being taken on execution or by attachment or trustee process or
other process of law and not dismissed within sixty (60) days; (ii) the
filing by Tenant being judicially declared bankrupt or insolvent
according to law; (iii) an assignment being made of the property of
Tenant for the benefit of creditors; (iv) a receiver, guardian,
conservator, trustee in involuntary bankruptcy or other similar officer
being appointed to take charge of all or any substantial part of
Tenant's property by a court of competent jurisdiction; (v) a petition
being filed by Tenant for the reorganization of Tenant or under any
other chapter or provisions of the Bankruptcy Act now or hereafter
enacted; or (vi) an involuntary petition under the Bankruptcy Act filed
which shall not have been dismissed within sixty (60) days.
d. Execution by Tenant of an instrument purporting to assign Tenant's
interest under this Lease or sublet the whole or a portion of the
Premises to a third party without Tenant having first obtained
Landlord's prior express written consent to said assignment or
subletting.
14.2 REMEDIES. Should any Event of Default occur then, notwithstanding any
license of any former breach of covenant or waiver of the benefit thereof or
consent in a former instance, Landlord lawfully, in addition to any remedies
otherwise available to Landlord, immediately or at any time thereafter, and
without demand or notice, may enter into and upon the Premises or any part
thereof in the name of the whole and repossess the same as of Landlord's former
estate, and expel Tenant and those claiming, by, through or under it and remove
its or their effects (forcibly if necessary) without being deemed guilty of any
manner of trespass, and without prejudice to any remedies which might otherwise
be used for arrears of rent or preceding breach of covenant and/or Landlord may
send notice to Tenant terminating the Term of this Lease; and upon the first to
occur of: (i) entry as aforesaid; or (ii) the fifth (5th) day following the
mailing of such notice of termination, the Term of this Lease shall terminate,
but Tenant shall remain liable for all damages as provided for herein.
14.3 TENANT'S OBLIGATIONS/LANDLORD'S RIGHTS. Tenant covenants and agrees,
notwithstanding any termination of this Lease as aforesaid or any entry or re-
entry by Landlord, whether by summary proceedings, termination, or otherwise, to
pay and be liable for on the days originally fixed herein for the payment
thereof, amounts equal to the several installments of Annual Base Rent and other
charges reserved as they would become due under the terms of this Lease if this
Lease had not been terminated or if Landlord had not entered or re-entered, as
aforesaid, and whether the Premises be relet or remain vacant, in whole or in
part, or for a period less than the remainder of the Term, or for
39
the whole thereof; but in the event the Premises be relet by Landlord, Tenant
shall be entitled to a credit in the net amount of rent received by Landlord in
reletting, after deduction of all reasonable expenses incurred in reletting the
Premises (including, without limitation, remodeling costs, brokerage fees,
attorneys' fees and the like), and in collecting the rent in connection
therewith. It is specifically understood and agreed that Landlord shall be
entitled to take into account in connection with any reletting of the Premises
all relevant factors which would be taken into account by a sophisticated
developer in securing a replacement tenant for the Premises, such as, but not
limited to, the first class quality of the Building and the financial
responsibility of any such replacement tenant. Landlord agrees to use reasonable
efforts to mitigate its damages in the Event of Default on the part of the
Tenant. Landlord will not be required to place special emphasis on the Premises
in any reletting program or to lease the Premises prior to leasing any other
space in the Building. As an alternative, at the election of Landlord at any
time, including after the Landlord has instituted reletting or the monthly
collection of Tenant's installments of Annual Base Rent and other charges as
provided under this Lease, Tenant will upon such termination pay to Landlord, as
damages, such a sum as at the time of such termination represents the amount of
the excess, if any, of the present value (calculated at the prime rate) of the
total rent and other benefits which would have accrued to Landlord under this
Lease for the remainder of the Lease Term if the lease terms had been fully
complied with by Tenant over and above the then cash rental value (in advance)
of the Premises for the balance of the Term. For purposes of this Article, if
Landlord elects to require Tenant to pay damages in accordance with immediately
preceding sentence, the total rent shall be computed by assuming that Tenant's
Proportionate Share of Taxes in excess of the Base Tax Amount and Tenant's
Proportionate Share of the Operating Expenses in excess of the Base Operating
Expenses would be, for the balance of the unexpired term, the amount thereof (if
any), respectively, for the immediately preceding Tax Period or fiscal year, as
the case may be, payable by Tenant to Landlord. All calculations necessary to
determine the amounts due from Tenant to Landlord shall be performed by Landlord
and may be amended by Landlord for error or incompleteness. The computations
shall relate to all periods of time, including prior periods in which Tenant
shall not have made payments of Annual Base Rent and other charges as provided
under this Lease and shall be binding upon Tenant in all respects absent
manifest error.
If this Lease shall be guaranteed on behalf of Tenant, all of the foregoing
provisions of this Article with respect to insolvency, assignment for the
benefit of creditors, bankruptcy of Tenant, etc., shall be deemed to read
"Tenant or the guarantor hereof.
In the event of any breach or threatened breach by Tenant of any of the
agreements, terms, covenants or conditions contained in this Lease, Landlord
40
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right or remedy allowed at law or in equity or by statute or
otherwise as though reentry, summary proceedings, and other remedies were not
provided for in this Lease.
Each right and remedy of Landlord provided for in this Lease shall be cumulative
and shall be in addition to every other right or remedy provided for in this
Lease not now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by Landlord of any one
or more of the rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Landlord of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise.
If any payment of rent or any other payment payable hereunder by Tenant to
Landlord shall not be paid when due, the same shall bear interest from the date
when the same was payable until the date paid at the lesser of (a) eighteen
percent (18%) per annum, compounded monthly, or (b) the highest lawful rate of
interest which Landlord may charge to Tenant without violating any applicable
law. Such interest shall constitute Additional Rent payable hereunder and be
payable upon demand therefor by Landlord.
Without limiting any of Landlord's rights and remedies hereunder, and in
addition to all other amounts Tenant is otherwise obligated to pay, it is
expressly agreed that Landlord shall be entitled to recover from Tenant all
costs and reasonable expenses, including reasonable attorneys' fees incurred by
Landlord in enforcing this Lease from and after Tenant's default.
14.4 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until Landlord
shall have failed to perform such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such default, after
written notice by Tenant to Landlord properly specifying wherein Landlord has
failed to perform any such obligation
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do
or permit anything to be done in or upon the Premises, or bring in anything or
keep anything therein which shall increase the rate of insurance on the Premises
or on the Building above the standard rate applicable to premises being occupied
for the use to which Tenant has agreed to devote the Premises;
41
and Tenant further agrees that in the event that Tenant shall do any of the
foregoing, Tenant will promptly pay to Landlord, on demand, any such increase
resulting therefrom which shall be due and payable as Additional Rent hereunder.
15.2 WAIVER. Failure on the part of Landlord or Tenant to complain of any
action or nonaction on the part of the other, no matter how long the same may
continue, shall never be a waiver by Tenant or Landlord, respectively, of any of
their fights hereunder. Further, no waiver at any time of any of the provisions
hereof by Landlord or Tenant 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 or Tenant to or of any action
by the other requiring such consent or approval shall not be construed to waive
or render unnecessary Landlord's or Tenant's consent or approval to or of any
subsequent similar act by the other.
No payment by Tenant or acceptance by Landlord of a lesser amount than shall be
due from Tenant to Landlord shall be treated otherwise than as a payment on
account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check
that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant. In no event shall Tenant ever be
entitled to receive interest upon, or any payments on account of earnings or
profits derived from any payments hereunder by Tenant to Landlord.
15.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and provisions
of this Lease, upon payment of the Annual Base Rent and other charges due
hereunder and the observing, keeping and performing of all of the terms and
provisions of this Lease on Tenant's part to be observed, kept and performed,
shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises
during the Term hereof, without hindrance or ejection by any persons lawfully
claiming under Landlord to have title to the Premises superior to Tenant; the
foregoing covenant of quiet enjoyment is in lieu of any other covenant,
expressed or implied; and it is understood and agreed that this covenant and any
and all other covenants of Landlord contained in this Lease shall be binding
upon Landlord and Landlord's successors only with respect to breaches occurring
during Landlord's and Landlord's successors' respective ownership of Landlord's
interest hereunder. Further, Tenant specifically agrees to look solely to
Landlord's then equity interest in the Building and Land at the time owned, or
in which Landlord holds an interest as ground lessee, for recovery of any
judgment from Landlord; it being specifically agreed that Landlord (original or
successor), its employees, officers, directors, managers,
42
shareholders, equity holders, agents, managers and attorneys and their
respective successors and assigns ("additional persons") shall never be
personally liable for any such obligations or judgment, or for the payment of
any monetary obligation to Tenant. The provision contained in the foregoing
sentence is not intended to, and shall not limit any right that Tenant might
otherwise have to obtain injunctive relief against Landlord or Landlord's
successors in interest, or any action not involving the personal liability of
Landlord (original or successor) and the additional persons to respond in
monetary damages from Landlord's assets other than Landlord's equity interest
aforesaid in the Building and Land. With respect to any services, including,
without limitation, heat, air-conditioning or water to be furnished by Landlord
to Tenant, or obligations to be performed by Landlord hereunder, Landlord shall
in no event be liable for failure to furnish or perform the same when (and the
date for performance of the same shall be postponed so long as Landlord is)
prevented from doing so by strike, lockout, breakdown, accident, order or
regulation of or by any governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts or
employees necessary to furnish such services, or perform such obligations or
because of war or other emergency, or for any cause beyond Landlord's reasonable
control, or for any cause due to any act or neglect of Tenant or Tenant's
servants, agents, employees, licensees, invitees or any person claiming by,
through or under Tenant. In the event of an interruption of services to the
Premises, if Tenant provides Landlord notice describing such interruption and if
such interruption is (i) not due to any act or omission of Tenant or any agent,
contractor, employee or invitee of Tenant; and (ii) of such substantial or
serious nature that the Premises are rendered unusable by Tenant as a result
thereof for more than five (5) business days after Landlord's receipt of such
notice, the Annual Base Rent shall be equitably abated as of the fifth (5th)
business day. In no event shall Landlord ever be liable to Tenant for any
indirect, special or consequential damages suffered by Tenant from whatever
cause.
15.4 NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving notice from any
person, firm or other entity that it holds a mortgage which includes the
Premises as part of the mortgaged premises, or that it is the ground lessor
under a lease with Landlord, as ground lessee, which includes the Premises as
part of the demised premises, no notice from Tenant to Landlord shall be
effective unless and until a copy of the same is given to such holder or ground
lessor, and the curing of any of Landlord's defaults by such holder or ground
lessor shall be treated as performance by Landlord. For the purposes of this
Section 15.4, Section 15.5 or Section 15.14, the term "mortgage" includes a
mortgage on a leasehold interest of Landlord (but not one on Tenant's leasehold
interest).
43
15.5 ASSIGNMENT OF LEASES AND RENTS. With reference to any assignment by
Landlord of Landlord's interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to the holder of a
mortgage or ground lease on property which includes the Premises. Tenant
agrees:
a. that the execution thereof by Landlord, and the acceptance thereof by
the holder of such mortgage, or the ground lessor, shall never be
treated as an assumption by such holder or ground lessor of any of the
obligations of Landlord hereunder, unless such holder or ground lessor
shall, by notice sent to Tenant, specifically otherwise elect; and
b. that, except as aforesaid, such holder or ground lessor shall be treated
as having assumed Landlord's obligations hereunder only upon foreclosure
of such holder's mortgage and the taking of possession of the Premises,
or in the case of a ground lessor, the assumption of Landlord's position
hereunder by such ground lessor. In no event shall the acquisition of
title to the Building and the Land or a portion thereof on which the
Building is located by a purchaser which, simultaneously therewith,
leases the entire Building or such land back to the seller thereof, be
treated as an assumption by operation of law or otherwise of Landlord's
obligations hereunder, but Tenant shall look solely to such seller-
lessee, and its successors from time to time in title, for performance
of Landlord's obligations hereunder. In any such event, this Lease shall
be subject and subordinate to the lease to such seller. For all purposes
such seller-lessee, and its successors in title, shall be the landlord
hereunder unless and until Landlord's position shall have been assumed
by such purchaser-lessor.
15.6 MECHANIC'S LIENS. Tenant agrees immediately to discharge (either by
payment or by the filing of the necessary bond, or otherwise) any mechanics',
materialmen's or other lien against the Premises and/or Landlord's interest
therein, which liens may arise out of any payment due for, or purported to be
due for, any labor, services, materials, supplies or equipment alleged to have
been furnished to or for Tenant in, upon or about the Premises.
15.7 NO BROKERAGE. Landlord and Tenant each warrants and represents that it
has dealt with no other broker in connection with the consummation of this
Lease, other than Neelon ("Tenant's Broker") and Fallon, Hines & O'Connor
("Landlord's Broker"), and in the event of any brokerage claims, other than by
Neelon or Fallon, Hines & O'Connor, predicated upon prior dealing with Landlord
or Tenant, the party breaching such warranties agrees to defend the same and
indemnify and hold harmless the non-breaching party against any such claims and
the costs and expenses, including attorneys' fees, arising
44
therefrom. Landlord shall pay the commission due to Tenant's broker and
Landlord's broker.
15.8 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
15.9 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms
hereof shall be binding upon and shall inure to the benefit of the successors
and assigns, respectively, of Landlord and Tenant and, if Tenant shall be an
individual, upon and to his heirs, executors, administrators, successors and
assigns. If two or more persons are named as Tenant herein, each of such
persons shall be jointly and severally liable for the obligations of the Tenant
hereunder, and Landlord may proceed against any one without first having
commenced proceedings against any other of them. Each term and each provision
of this Lease to be performed by Tenant shall be construed to be both a covenant
and a condition. The reference contained to successors and assigns of Tenant is
not intended to constitute a consent to assignment by Tenant, but has reference
only to those instances in which Landlord may later give consent to a particular
assignment as required by those provisions of Article V hereof.
15.10 RECORDING. Tenant agrees not to record the within Lease, but each party
hereto agrees, on the request of the other, to execute a so-called memorandum of
lease or short form lease in form recordable and complying with applicable law
and reasonably satisfactory to Landlord's attorneys. In no event shall such
document set forth the rent or other charges payable by Tenant under this Lease;
and any such document shall expressly state that it is executed pursuant to the
provisions contained in this Lease and is not intended to vary the terms and
conditions of this Lease.
15.11 NOTICES. Whenever, by the terms of this Lease, notice shall or may be
given either to Landlord or to Tenant, such notice shall be in writing and shall
be delivered in hand or sent by registered or certified mail, postage prepaid or
nationally recognized, receipted, overnight delivery service or facsimile
transmission followed by an original writing delivered, mailed or sent as
aforesaid:
If intended for Landlord, addressed to Landlord at the address set forth in
Section 1.2 of this Lease (or to such other address or addresses as may from
time to time hereafter be designated by Landlord by like notice) and a copy to
45
Roche, Carens & DeGiacomo, P.C., 99 High Street, 20th Floor, Boston,
Massachusetts 02110, Attention Frank M. Capezzera.
If intended for Tenant, addressed to Tenant at the address set forth in Section
1.2 of this Lease (or to such other address or addresses as may from time to
time hereafter be designated by Tenant by like notice) and a copy to Hale and
Dorr, LLP, 60 State Street, Boston, MA 02109, Attn: Jeffrey A. Hermanson.
All such notices shall be effective when delivered in hand, or when deposited in
the United States mail within the continental United States provided that the
same are received in the ordinary course at the address to which the same were
sent. Any party or person entitled to notice may change the address therefor
giving notice to all parties or persons as provided herein.
15.12 WHEN LEASE BECOMES BINDING. Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or undertaking
in connection herewith. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of, or
option for, the Premises, and this document shall become effective and binding
only upon the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered only
by written agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof
15.13 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
15.14 RIGHTS OF MORTGAGEE. It is understood and agreed that the rights and
interests of Tenant under this Lease shall be subject and subordinate to any
mortgages or deeds of trust that may hereafter be placed upon the Building
and/or the Land, and to any and all advances to be made thereunder, and to the
interest thereon, and all renewals, modifications, replacements and extensions
thereof, if the mortgagee or trustee named in said mortgages or deeds of trust
shall elect by notice delivered to Tenant to subject and subordinate the rights
and interest of Tenant under this Lease to the lien of its mortgage or deed of
trust; it is further agreed that any mortgagee or trustee may elect to give the
rights and interest of Tenant under this Lease priority over the lien of its
mortgage or deed of trust. In the event of either such election, and upon
notification by such mortgagee or trustee to Tenant to that effect, the rights
and interest of Tenant under this Lease shall be deemed to be subordinate to, or
to have priority over, as the case may be, the lien of said
46
mortgage or deed of trust, whether this Lease is dated prior to or subsequent to
the date of said mortgage or deed of trust. Tenant shall execute and deliver
whatever instruments may be required for such purposes, and in the event Tenant
fails so to do within ten (10) days after demand in writing, Tenant does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact
coupled with an interest and given as security and in its name, place and stead
so to do. In the event that any holder or prospective holder of any mortgage
which includes the Premises as part of the mortgaged premises, shall request any
modification of any of the provisions of this Lease, other than a provision
directly related to the rents payable hereunder, the duration of the term
hereof, or the size, use or location of the Premises, or Tenant's subletting and
assignment rights, Tenant agrees that Tenant will enter into a written agreement
in recordable form with Landlord or such holder or prospective holder which
shall effect such modification and provide that such modification shall become
effective and binding upon Tenant and shall have the same force and effect as an
amendment to this Lease for all purposes. Tenant hereby appoints such holder as
Tenant's attorney-in-fact as aforesaid to execute any such modification upon
default of Tenant in complying with such holder's request.
15.15 STATUS REPORT. Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees or the like,
the then current status of performance hereunder, either party, on the request
of the other made from time to time, will promptly furnish to Landlord, or the
holder of any mortgage encumbering the Premises, or to Tenant, as the case may
be, a statement of the status of any matter pertaining to this Lease, including,
without limitation, acknowledgments that (or the extent to which) each party is
in compliance with its obligations under the terms of this Lease.
15.16 SECURITY DEPOSIT; TENANT'S FINANCIAL CONDITION. If, in Section 1.2
hereof, a security deposit is specified, Tenant agrees that the same will be
paid upon execution and delivery of this Lease, and that Landlord shall hold the
same, throughout the term of this Lease, as security for the performance by
Tenant of all obligations on the part of Tenant to be kept and performed.
Landlord shall have the right from time to time without prejudice to any other
remedy Landlord may have on account thereof, to apply such deposit, or any part
thereof, to Landlord's damages arising from any default on the part of Tenant.
Tenant not then being in default, Landlord shall return the deposit, or so much
thereof as shall not have theretofore been applied in accordance with the terms
of this Section 15.16 to Tenant on the expiration or earlier termination of the
Lease Term and surrender of possession of the Premises by Tenant to Landlord at
such time. While Landlord holds such deposit, Landlord shall pay interest on
the same and shall keep said deposit in a separate account. If Landlord conveys
Landlord's interest under this Lease, the deposit or any part thereof, including
the interest, not previously applied may
47
be turned over by Landlord to Landlord's grantee, and if so turned over, Tenant
agrees to look solely to such grantee for proper application of the deposit in
accordance with the terms of this Section 15.16 and the return thereof in
accordance herewith.
Neither the holder of a mortgage nor the lessor in a ground lease of property
which includes the Premises shall ever be responsible to Tenant for the return
or application of any such deposit, whether or not it succeeds to the position
of Landlord hereunder, unless such deposit shall have been received in band by
such holder or ground lessor.
Tenant warrants and represents that all information furnished to Landlord or
Landlord's representatives in connection with this Lease are true and correct
and in respect of the financial condition of Tenant, properly reflect the same
without material adverse change, as of the date hereof. Upon Landlord's demand,
which may be made no more often than semi-annually, Tenant shall furnish to
Landlord, at Tenant's sole cost and expense, then current financial statements
of Tenant, audited (if audited statements have been recently prepared on behalf
of Tenant, or otherwise certified as being true and correct by the chief
financial officer of Tenant).
15.17 ADDITIONAL REMEDIES OF LANDLORD. Landlord shall have the right, but
shall not be required to do so, 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; and if Tenant shall default in
such payment within fifteen (15) days of such demand, Landlord shall have the
same rights and remedies as Landlord has hereunder for the failure of Tenant to
pay the Annual Base Rent.
Except as otherwise set forth herein, any obligations of Tenant as set forth
herein (including, without limitation, rental and other monetary obligations,
repair obligations and obligations to indemnify Landlord), shall survive the
expiration or earlier termination of this Lease, and Tenant shall immediately
reimburse Landlord for any expense incurred by Landlord in curing Tenant's
failure to satisfy any such obligation (notwithstanding the fact that such cure
might be effected by Landlord following the expiration or earlier termination of
this Lease).
15.18 HOLDING OVER. Any holding over by Tenant after the expiration of the
Lease Term shall be treated as a tenancy at sufferance at one hundred fifty
percent (150%) of the Annual Base Rent and Additional Rent herein provided to be
paid during the last twelve (12) months of the Lease Term (prorated on a
48
daily basis) and shall otherwise be on the terms and conditions set forth in
this Lease, as far as applicable.
15.19 NON-SUBROGATION. Insofar as, and to the extent that, the following
provision may be effective without invalidating or making it impossible to
secure insurance coverage obtainable from responsible insurance companies doing
business in the locality in which the Premises are located (even though extra
premium may result therefrom): Landlord and Tenant mutually agree that, with
respect to any hazard which is covered by insurance then being carried by them,
respectively, the one carrying such insurance and suffering such loss releases
the other of and from any and all claims with respect to such loss; and they
further mutually agree that their respective insurance companies shall have no
right of subrogation against the other on account thereof. In the event that
extra premium is payable by either party as a result of this provision, the
other party shall reimburse the party paying such premium the amount of such
extra premium. If, at the request of one party, this release and non-
subrogation provision is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this Section 15.19 shall derogate from or otherwise affect releases
elsewhere herein contained of either party for claims.
15.20 RELOCATION OF PREMISES. Tenant acknowledges that from time to time
Landlord may desire to relocate Tenant to other portions of the Building in
order to incorporate all or a portion of the Premises in portions of the
Building to be leased to tenants other than Tenant. Tenant further acknowledges
that restrictions on the right of Landlord to effect such a relocation would
cause substantial damage to Landlord in the leasing of the Building.
Accordingly, Tenant specifically acknowledges that Landlord shall have the right
to substitute for the Premises demised under this Lease other space of
approximately the same size in the Building provided that Landlord, at
Landlord's sole cost and expense, shall place such other space in substantially
the same condition as the Premises are then in and shall pay all moving costs
including phone system, computer cabling and new letter head, if the address on
the letter head changes with the relocation. In the event Landlord desires
Tenant to make such relocation, Landlord shall give written notice thereof to
Tenant at least forty-five (45) days prior to the date on which Tenant shall
effect such relocation. Tenant agrees that upon notice from Landlord that the
substitute premises have been substantially completed, Tenant shall relocate to
the substitute premises furnished by Landlord and deliver occupancy of the
Premises to Landlord within thirty (30) days thereof and shall enter into a
suitable amendment of this Lease to reflect Tenant's occupancy of the substitute
premises.
49
15.21 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts as the
same may from time to time exist.
15.22 DEFINITION OF ADDITIONAL RENT. Without limiting any other provision of
this Lease, it is expressly understood and agreed that Tenant's participation in
Taxes, Operating Expenses, and all other charges which Tenant is required to pay
hereunder, together with all interest and penalties that may accrue thereon,
shall be deemed to be Additional Rent, and in the event of non-payment thereof
by Tenant, Landlord shall have all of the rights and remedies with respect
thereto as would accrue to Landlord for non-payment of Annual Base Rent.
15.23 LANDLORD'S FEES AND EXPENSES. Unless prohibited by applicable law,
Landlord and Tenant each agrees to pay to the amount of all reasonable legal
fees and expenses incurred by Landlord or Tenant, as the case may be, arising
out of or resulting from any act or omission by Landlord or Tenant with respect
to this Lease or the Premises, including without limitation, any breach by
Landlord or Tenant of its obligations hereunder.
Further, if Tenant shall request Landlord's consent or joinder in any instrument
pertaining to this Lease, Tenant agrees promptly to reimburse Landlord for the
reasonable legal fees incurred by Landlord in processing such request, whether
or not Landlord complies therewith; and if Tenant shall fail promptly so to
reimburse Landlord, same shall be deemed to be a default in Tenant's monetary
obligations under this Lease.
With the exception of the initial Landlord's Work, whenever Tenant shall request
approval (or this lease shall require preparation) by Landlord or the Landlord's
architect of plans, drawings, specifications, or otherwise with respect to
initial of the Premises, subsequent remodeling thereof, installation of signs
including subsequent changes thereof, or the like, Tenant specifically agrees
promptly to pay to Landlord's architect (or reimburse Landlord for the payment
Landlord makes to said architect) for all charges involved in the review (and
re-review, if necessary) and approval or disapproval thereof whether or not
approval shall ultimately be given.
15.24 PARKING. Tenant, upon the commencement of its occupancy of the
Premises, shall have the right to use for its designated employees, as
appurtenant to the Premises, four (4) parking spaces for every 1,000 rentable
square feet in the Premises in common with other tenants of the Building located
in the parking area designated for use of tenants of the Building. Use of such
spaces may not be sold, assigned, licensed or otherwise given to any person for
any compensation or fee or otherwise. The use of such parking spaces by Tenant
50
in the Building may be regulated by rules and regulations issued by the Landlord
from time to time.
15.25 AUTHORITY. If Tenant is an entity, Tenant shall, simultaneously with
delivery of this Lease, deliver to Landlord a certified copy of a resolution of
the said entity authorizing or ratifying the execution of this Lease and such
other demonstration of existence, due authority and binding nature of Tenant's
actions in executing and delivering this Lease as Landlord or its lender(s) may
reasonably require.
15.26 CONFIDENTIALITY. Landlord and Tenant agree that the terms and conditions
of this Lease were negotiated based on the unique positions as to bargaining
power of the Landlord and the Tenant. Therefore, the parties agree that certain
concessions granted to one another in this Lease were based on these unique
positions, and that communication to parties other than employees, agents,
lenders, investors, purchasers or underwriters (or as otherwise required by
applicable law or required in connection with the issuance of any securities by
Tenant) of each party may be detrimental and harmful to the Landlord's ability
to rent additional space in the building occupied by the Tenant. Tenant hereby
agrees, therefore, not to communicate to anyone other than its agents,
employees, lenders, investors, purchasers or underwriters (or as otherwise
required by applicable law or required in connection with the issuance of any
securities by Tenant) the contents of this Lease, and any breach of the
provisions of this paragraph by the Tenant shall be considered a default by the
Tenant under the terms and conditions of this Lease.
15.27 FORCE MAJEURE. Subject to any provisions in this Lease expressly
excluding force majeure as a justification for non-performance by Landlord,
Landlord shall not be in default hereunder and Tenant shall not be excused from
performing any of its obligations hereunder if Landlord is prevented from
performing any of its obligations hereunder due to any accident, breakage,
strike, shortage of materials, a Year 2000 problem, acts of God or other causes
beyond Landlord's reasonable control. Tenant shall not be in default hereunder
and Landlord shall not be excused from performing any of its obligations
hereunder if Tenant is prevented from performing any of its obligations due to
any accident, breakage, strike, shortage of materials, a Year 2000 problem, acts
of God or other causes beyond Tenant's reasonable control (but specifically
excluding financial inability to perform). This provision specifically does not
apply to either party's obligation to pay money to the other including Tenant's
obligation to pay rent under the terms of this Lease. A "Year 2000 problem"
shall mean a date-handling problem relating to the Year 2000 date change that
would cause a computer system, software or equipment to fail to correctly
perform, process and handle date-related
51
information for the dates within and between the twentieth and twenty-first
centuries and all other centuries.
WITNESS the execution hereof, under seal, in any number of counterparts,
each of which counterparts shall be deemed an original for all purposes, as of
the day and year first above written.
LANDLORD: LSOF POOLED EQUITY, LP
BY: LSOF GenPar, Inc.,
a Texas Corporation, General Partner
By: /s/Mary Etta Ford
-----------------
Name: Mary Etta Ford
Title: VP
Duly Authorized.
52
Attest: ________________________ By: _________________________________
Name:
Title:
Duly Authorized.
TENANT: FREEDOM OF
INFORMATION, INC.
ATTEST: _____________________ By: /s/ Stephen M. Joseph
-----------------------
Name: Stephen M. Joseph
Title: Treasurer
Duly Authorized.
ATTEST: ______________________ By: /s/ Gordon B. Hoffstein
-----------------------
Name: Gordon B. Hoffstein
Title: President
Duly Authorized
53
STATE OF TEXAS
COUNTY OF DALLAS, SS. 10/26, 1998
Then personally appeared, the above-named Mary Etta Ford, VP of LSOF Pooled
Equity, LP known to me and acknowledged the foregoing instrument to be his free
act and deed on behalf of LSOF Pooled Equity, LP, before me.
/s/ Shanon Stencel
------------------------
Notary Public
My Commission Expires: 01-26-02
54
STATE OF TEXAS
COUNTY OF DALLAS, SS _______________, 1998
Then personally appeared, the above-named _____________________, ________
of LSOF Pooled Equity, LP known to me and acknowledged the foregoing instrument
to be his free act and deed on behalf of LSOF Pooled Equity, LP, before me.
__________________________________
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY, SS October 20, 1998
Then personally appeared, the above-named Stephen Joseph, Treasurer of
Freedom of Information, Inc., known to me and acknowledged the foregoing
instrument to be his free act and deed on behalf of Freedom of Information,
Inc., before me.
/s/ Jeffrey Hermanson
---------------------
Notary Public
My Commission Expires: 7/9/04
55
COMMONWEALTH OF MASSACHUSETTS
__________ COUNTY, SS _______________, 1998
Then personally appeared, the above-named _______________________,
___________ of Freedom of Information, Inc., known to me and acknowledged the
foregoing instrument to be his free act and deed on behalf of Freedom of
Information, Inc., before me.
____________________________________
Notary Public
My Commission Expires:
56
EXHIBIT A
DESCRIPTION
5 08* 09' 35" W a distance of 512.54 feet to a point; thence running
Southerly on a curve to the right having a radius of 1970 feet, an arc
length of 369.98 feet to a point of nontangency; thence
running
S 18* 55' 13" W a distance of 131.49 feet to a pot on Lot 1 shown on said
plan, the three (3) previous courses banding easterly on
said Crane Hill Road and Crane Meadow Road; thence running
N 70* 45' 40" W a distance of 638.35 feet to a point; thence running
S 74* 06' 50" W a distance of 125.96 feet to a point; the previous two (2)
courses banding southerly on said Lot 1; thence running
S 07* 07' 16" W a distance of 313.80 feet to a point; thence running
S 36* 35' 35" W a distance of 868.80 feet to a point; the previous two (2)
courses banding westerly on Lot 1; thence running
N 62* 16' 40" W a distance of 416.77 feet to the point of beginning, banding
northerly on said Lot 1.
Consisting of approximately 680,000 square feet or 15.61 acres.
- --------------
* = Degrees
EXHIBIT B
MARLBOROUGH CORPORATE CENTER
MARLBOROUGH, MASSACHUSETTS
SITE WORK
A prominent corporate address will be achieved by siting the Marlborough
Corporate Center directly across from the new interchange to be built by the
Massachusetts Highway Department. The interchange plans call for a new
signalized interchange directly in front of the building, as shown on the site
plans. The interchange is scheduled for completion by Fall 1999.
1. Parking: Four (4) spaces per 1,000 square feet of rentable space
are being provided. An additional 160 spaces are planned
for on-site and available if desired by the tenants.
2. Storm
Drainage: All site drainage is desired to flow to the rear left of
the site into a stormwater quality basin.
3. Sewer: The building will be tied to the Marlborough sewer system
located in Crane Meadow Road.
4. Domestic Water
and Fire
Protection: All work will be done in accordance with NFPA #13 and
LS.O. and is based on adequate water pressure.
5. Site Improvements:
- 3" of paving in parking lot.
- 640 parking spaces - 4 per 1,000 square feet of
building.
- Precast concrete curbs at all landscape islands.
- Poured concrete plaza at building entrance.
6. Site Lighting: Site lighting for a 1/2 footcandle average, the
Illuminating Engineers Standard, will be 400W metal
halide, fixtures on 30' poles and fifteen (15) Light
billiards at walkways.
7. Landscaping: The building site shall be landscaped in a manner typical
of a first class office building.
MARLBOROUGH CORPORATE CENTER
MARLBOROUGH, MASSACHUSETTS
BASE BUILDING DESCRIPTION
1. STRUCTURAL SYSTEM:
Design load capabilities shall be as follows: first floor - slab on grade;
second and third floor - 100 pounds per square foot live load. The floor
to floor height Will be fourteen feet (14'-0") allowing for an
approximately nine foot six inch (9'-6") CP finished ceiling height.
Typical bay spacing is thirty feet by thirty feet (30'-0" x 30'-0").
2. EXTERIOR MATERIALS:
a. Exterior Walls: Brick veneer with brick feature strips and gypsum sheathing
back-up on light gauge metal framing. All exterior wall insulations shall
conform to a Thermal Resistance Rating (R-Value) of 19.
b. Window System: Horizontal strip windows shall be Kawneer FASET SSG and
shall consist of four inch (4") deep thermally broken, clear anodized
aluminum with one inch (1") factory-scaled, gray-tinged insulating glass.
Window height is to be six feet (6'-0").
The full-height glazed curtain wall systems shall be Kaneer 1600 SSG and shall
consist of two inch by seven inch (2' x 7") clear anodized aluminum with one
inch (1") factory sealed, gray tinted insulating glass.
c. Entrances: Glazed entrance doors shall be Kawneer Medium Stile with clear
anodized aluminum framing. The doors shall be fully equipped with push-
pulls, ADA approved closures, thresholds, locks and cylinder.
d. Roof: The roof shall consist of a Factory Mutual approved, .060 non-
reinforced single-ply fully-adhered EDPM membrane with mechanically-
fastened 2.5 inch polyisocyanurate insulation providing an "R" value of
approximately 18.2. The roofing system manufacturer shall be Firestone.
3. INTERIOR MATERIALS:
a. Interior Walls: The common area walls of the building will be finished with
five-eighths inch (5/8") drywall. Drywall will be taped and sanded. The
drywall will be finished with two (2) coats of paint in a color to be
selected by the landlord's architect and a four inch (4") resilient base.
MARLBOROUGH CORPORATE CENTER
MARLBOROUGH, MASSACHUSETTS
BASE BUILDING DESCRIPTION
b. Doors and Hardware: All interior base building doors (bathrooms, electrical
rooms, mechanical rooms, stairwell doors, etc.) will be three feet by seven
feet (3' x 7'), solid core, maple veneered, set in eighteen (18) gauge
welded metal frames. All necessary common area doors are included. All
hardware will be bright chrome finish, standard duty, spherical type of
lever action, as required by code. Temporary hollow metal doors shall be
provided from main lobby into tenant spaces.
c. Wall Finishes: The wall surfaces of all common areas, not otherwise
indicated to receive wall covering, will be finished with two (2) coats of
a latex based, flat wall paint, in a color selected by landlord's
architect.
Wall surfaces of main lobby to receive wall covering as selected by
landlords architect.
d. Floor Finishes: The following floor finishes will be provided in common
areas:
Floor Tile: (janitor's closet):
"Standard Excelon" by Armstrong Architectural Building Products, a twelve
inch by twelve inch by one-eighths inch (12" x 12" x 1/8") vinyl
composition tile, in a color selected by landlord's architect.
Bathroom Tile: "Ceramic Mosaics" by American Olean Tile Company, a 2 x 2
porcelain ceramic tile, in a color selected by landlord's architect.
Base: Four inch (4") ceramic tile base.
Lobby Area: The lobby area will be provided with Armstone granite tile,
vinyl wall covering, clear scaled maple soffit trim and special lighting.
Carpet: Stairways and lobby.
Concrete: Exposed concrete with spray on hardener for loading, electric,
elevator, mechanical and telephone rooms.
e. Ceiling Finishes: The common area ceiling system will be a twenty-four inch
by twenty-four inch by five-eighths inch (24" x 24" x 5/8") lay-in tile.
Armstrong Cortega, or equal, in an intermediate duty white grid.
MARLBOROUGH CORPORATE CENTER
MARLBOROUGH, MASSACHUSETTS
BASE BUILDING DESCRIPTION
The main lobby ceiling system will be a twenty-four inch by twenty-four
inch by five-eighths inch (24" x 24" x 5/8") beveled tegular tile.
Armstrong Cirrus, or equal, in an intermediate duty white grid.
4. PLUMBING
Two (2) tenant restroom cores will be provided on each floor. One (1)
additional common area restroom core will be provided at the first floor of
the main lobby. All bathrooms will be sized to comply with the
Massachusetts State Building Code. The toilet fixtures will be wall hung
and the lavatories will be drop-in style in a laminate top. All bathrooms
will include ceramic the floors and wet wall, baked enamel, ceiling-hung
toilet partitions, laminate countertops and full accessories. Handicapped
facilities will also be included that meet the Massachusetts State Building
Code.
5. FIRE PROTECTION
The building will be fully sprinklered to NFPA #13 Standards for Ordinary
Hazard Occupancy. The tenant area fire protection system will be exposed
piping with upright heads. The system shall include, but not be limited
to, providing the following:
a. Complete wet pipe type, hydraulically designed sprinkler systems.
b. External eight inch (8") fire water line with yard hydrants.
c. Zone valves as required by code.
d. Fire hose connections.
e. Tests and test connections.
f. Backflow prevention.
6. ELEVATORS
Provide one (1) three-stop hydraulic, 125 FPM, passenger elevator with a
2,500 pound capacity at main lobby, equal to Dover Marquis 25. Clear
inside dimension is to be approximately six feet eight inches wide by four
feet three inches deep (6'-8"x 4' x 3"). Hoistway door opening is to be
approximately three feet six inches by seven feet (3'-6" x 7'-0").
Interior cab finishes of main lobby elevator are to include No.8 stainless
steel hand rail, frames and ceiling incorporating twelve inch (12") plastic
laminate panel behind handrails and plastic laminate panels above and below
handrail.
MARLBOROUGH CORPORATE CENTER
MARLBOROUGH, MASSACHUSETTS
BASE BUILDING DESCRIPTION
Provide two (2) three-stop hydraulic, 100 FPM combination freight/passenger
elevator with a 4,000 pound capacity at employee/service entrances, equal
to Dover Continental 45. Clear inside dimension is to be approximately
five feet four inches wide by seven feet nine and one-half inches deep (5'-
4" x 7'-9-1/2"). Hoistway door opening is to be approximately four feet by
seven feet (4'-0" x 7'-0").
Interior cab finishes of employee entrance / service elevators are to
include No.8 stainless steel hand rail, painted frames and painted ceiling
incorporating twelve inch (12") plastic laminate panel behind handrails and
plastic laminate panels above and below handrail.
7. HEATING, VENTILATION AND AIR CONDITIONING (HVAC)
One (1) 20-ton split cooling unit with roof-mounted condensing unit and air
handler suspended in the boiler room shall handle the two level, open lobby
area. The unit shall have 100% outside economizer and zoning for each level
and shall consist of Vartrac zone damper and electric coil. Distribution
shall consist of supply and return duct work to each level with fire damper
at floors. Ceiling space shall be return plenum. Space distribution shall
consist of two by two lay-in plaque diffuser and sidewall register to serve
open, two-floor lobby area.
Two (2) 75-ton roof-top packaged electric cooling, gas heating variable air
volume units to serve the third level. The units shall have roof curbs,
rectangular duct silencers in supplies and returns, outside air traq
sensors, 100% outside air economizer power exhaust, and supply air
temperature controls. Duct distribution shall consist of 40 feet of supply
duct to serve as temporary heating and be set up for future tenant VAV
terminal with electric coils.
Four (4) 70-ton, roof-top packaged electric cooling gas heating variable
air volume units to serve the second and first floors. The units shall
have roof curbs, rectangular duct silencers in supplies and returns,
outside air traq sensors, 100% outside air economizer power exhaust, and
supply air temperature controls. Distribution shall consist of 40 feet each
unit to serve as temporary heating, and be set up for future tenant VAV
terminal with electric coils.
Five (5) 4KW, 277/1/60 electric wall heater with heater with built-in
thermostat shall serve the stairs and the sprinkler room.
MARLBOROUGH CORPORATE CENTER
MARLBOROUGH, MASSACHUSETTS
BASE BUILDING DESCRIPTION
Two (2) 5KW 277/1/60 electric recessed ceiling heater with built-in
thermostat shall serve entries.
Two (2) roof-mounted exhaust fans shall serve the restrooms with exhaust
duct work and exhaust registers.
One (1) roof-mounted exhaust fan shall serve the main lobby smoke exhaust
requirements with exhaust duct work and exhaust registers.
One (1) wall-mounted, one and one-half horsepower exhaust fan shall serve
the first floor electric room with two foot by two foot (2'-0" x 2'-0")
wall-mounted exhaust louver between Columns 11 and 12. The fan shall
operate from the space thermostat.
Two (2) 7-1/2KW, 480/3/60 suspended electric unit heater shall serve the
first floor loading areas. Controls, control wiring, starter and smoke
detectors.
8. ELECTRICAL
Secondary Service
A 4,000 amp, 277/480 volt, three-phase, four-wire, secondary service from
the pad-mounted transformer to the main switchboard.
Main Switchboard
Main switchboard shall total 4,000 amps at 277/480 volt with a main device
unmetered and shall be of NEMA Class II construction having whatever depth
necessary to accommodate equipment.
Six (6) 400-amp main switches and CT metering (one for each tenant) with
empty conduit to each tenant space has been provided for.
Building Distribution
A 480/277 volt and 208/120 volt, three-phase, four-wire building
distribution and power system, including distribution panelboards, 480 to
208/120 volt dry transformers for 208/120 volt panels, local lighting and
power panels, disconnect switches, raceways, cables, junction and pull
boxes, terminal cabinets, wireways, and all other components and fittings
required for a complete power and lighting distribution system.
MARLBOROUGH CORPORATE CENTER
MARLBOROUGH, MASSACHUSETTS
BASE BUILDING DESCRIPTION
Lighting
The lighting design will be accomplished at the following approximate
maintained footcandle levels. (All illumination levels are horizontal
values measured four feet (4'-0" above the floor.):
Area F.C. Source Ballast
- ---- ---- ------ -------
Mechanical & Loading 20 Fluorescent Strips Electronic
Toilet 40 2"x2" Parabolics Electronic
Lobby 40 Hi-Hats/WallSconces Electronic
Stairways/Corridors 40 2"x2".2"x4" Parabolics Electronic
Main lobby lighting level of 40 footcandles is to be provided in all travel
areas. Comers and alcoves are to be provided with 30 to 40 footcandles.
All lighting systems (indoor and outdoor, normal, emergency and exit)
include all fixtures, lamps, plaster and/or tile frames, standards,
switches, outlets, wiring, raceways, and all other components and fittings
required for complete lighting system.
Large areas, night lights and stairway lighting shall be panel switched.
Future tenant areas are to receive stumble lighting.
Emergency Lighting System
Provide emergency and exit lighting system consistent with the requirements
of the building, life safety and local code requirements.
Remote head battery units (12 volt each) shall be installed to meet
emergency lighting requirements.
Remote heads shall be mini/chrome.
Receptacles
General convenience outlets shall be 20 amp, 125-volt, duplex type.
Utility and mechanical rooms have one (1) duplex receptacle.
MARLBOROUGH CORPORATE CENTER
MARLBOROUGH, MASSACHUSETTS
BASE BUILDING DESCRIPTION
Corridor outlets shall be mounted a maximum distance of 50 linear feet apart.
Ground fault circuit interrupting outlets will be provided in all toilet rooms.
Fire Alarm System
A complete city-connected, addressable fire alarm system with pull stations,
horn strobes (A.D.A.), smoke detectors, duct detectors, elevator recall wiring,
and sprinkler wiring for the base building core areas, toilet and stairways.
Heating Ventilating and Air Conditioning Equipment and Plumbing Wiring
All power wiring shall be furnished and installed for the operation of heating,
ventilating and air conditioning and plumbing systems.
Telephone
Provide telephone risers and sleeves through the floors to each telephone room,
in anticipation of tenant telephone and data communication requirements.
Exterior Lighting
400W metal halide fixtures on thirty foot (30') poles to achieve .5 footcandles
average maintained at parking.
Fifteen (15) light bollards at walkways.
All controlled by a time clock with photocell.
EXHIBIT C
NOTICE OF LEASE
In accordance with the provision of Mass. G.L. c. 183, Section 4, as
amended, notice is hereby given of the following described Lease:
LESSOR: LSOF Pooled Equity L.P., a Delaware limited Partnership with an
address at 600 N. Peal Street, Suite 1500, Dallas, Texas 75201
LESSEE: Freedom of Information, Inc., a Delaware corporation with an
address at 154 Crane Meadow Road, Marlborough, MA
Date of Execution: _____________________, 1998
Leased Premises: That portion of the building located at 154 Crane Meadow
Road, Marlborough, Massachusetts, located on the first (1st)
floor and consisting of 23,244 rentable square feet of floor
area and more particularly described in Exhibit A attached
hereto.
Terms of Lease: The term of the Lease is sixty-two (62) months commencing on
the earlier of: (i) the date that Landlord delivers the
Premises to Tenant with the Landlord's Work Substantially
Complete, or (ii) the date on which Tenant begins use of the
Premises for operation of its business, which date is
estimated to be January 1, 1999.
WITNESS the execution hereof as an instrument under seal as of the
________ day of __________, 1998.
LANDLORD: LSOF POOLED EQUITY L.P.
a Delaware limited partnership
By: LSOF GENPAR, INC., a Texas
corporation, its General Partner
By: ______________________________
Name:
Title: duly authorized
By: ______________________________
Name:
Title: duly authorized
TENANT: FREEDOM OF INFORMATION, INC.
By:_______________________________
Name:
Title: duly authorized
By:________________________________
Name:
Title: duly authorized
STATE OF TEXAS
COUNTY OF DALLAS, SS ____________,1998
Then personally appeared, the above-named ______________________,
_____________ of LSOF GenPar, Inc., known to me and acknowledged the foregoing
instrument to be his/her free act and deed on behalf of LSOF GenPar, Inc.,
before me.
___________________________________
Notary Public
My Commission Expires:
STATE OF TEXAS
COUNTY OF DALLAS, SS ___________, 1998
Then personally appeared, the above-named ____________________,
_____________ of LSOF GenPar, Inc., known to me and acknowledged the foregoing
instrument to be his free act and deed on behalf of LSOF GenPar, Inc., before
me.
___________________________________
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
______________ COUNTY, SS ___________,1998
Then personally appeared, the above-named _______________________,
____________ of Freedom of Information, Inc., known to me and acknowledged the
foregoing instrument to be his free act and deed on behalf of Freedom of
Information, Inc., before me.
__________________________________
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
______________ COUNTY, SS ___________,1998
Then personally appeared, the above-named _______________________,
____________ of Freedom of Information, Inc., known to me and acknowledged the
foregoing instrument to be his free act and deed on behalf of Freedom of
Information, Inc., before me.
__________________________________
Notary Public
My Commission Expires:
EXHIBIT D
TENANT'S WORK
There is no Tenant's Work.
EXHIBIT E
LEASE SUBORDINATION, NON-DISTURBANCE
OF POSSESSION AND ATTORNMENT AGREEMENT
This Agreement ("Lease Subordination, Non-Disturbance of Possession and
Attornment Agreement" or "Agreement") is made as of the _____ day of
___________, 1998, by and among ___________________________ having a place of
business at ________________, ("Lender"), LSOF Pooled Equity L.P., a Delaware
limited partnership with an address at 600 N. Peal Street, Suite 1500, Dallas,
Texas 75201 ("Landlord"), and Freedom of Information, Inc., a Delaware
corporation with an address at 154 Crane Meadow Road, Marlborough, MA
("Tenant").
WITNESSETH
WHEREAS, Lender is relying on this Agreement as an inducement to Lender in
making and maintaining a loan ("Loan") secured by, among other things, a
Mortgage and Security Agreement dated as of _______________ ("Mortgage") given
by Borrower covering property commonly known as and numbered 154 Crane Meadow
Road, Marlborough, Massachusetts ("Property"). Lender is also the "Assignee"
under a Collateral Assignment of Leases and Rents ("Assignment") dated as of
from Borrower with respect to the Property.
WHEREAS, Tenant is the Tenant under that certain lease ("Lease") dated
October __, 1998, made with Landlord covering certain premises ("Premises") at
the Property as more particularly described in the Lease [and in the "Notice of
Lease" dated 1998 which has been recorded at Middlesex South Registry of Deeds
in Book ______, Page _____].
WHEREAS, Lender requires, as a condition to the making, and maintaining of
the Loan, that the Mortgage be and remain superior to the Lease and that its
rights under the Assignment be recognized.
WHEREAS, Tenant requires, as a condition to the Lease being subordinate to
the Mortgage, that its rights under the Lease be recognized.
WHEREAS, Lender, Landlord, and Tenant desire to confirm their understanding
with respect to the Mortgage and the Lease.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein, and other valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and with the understanding by Tenant
that Lender shall rely hereon in making and maintaining the Loan, Lender,
Landlord, and Tenant agree as follows:
Subordination. The Lease and the rights of Tenant thereunder are
subordinate and inferior to the Mortgage and any amendment, renewal,
substitution, extension or replacement thereof and each advance made thereunder
as though the Mortgage, and each such amendment, renewal, substitution,
extension or replacement were executed and recorded, and the advance made,
before the execution of the Lease. Without limiting the foregoing and
notwithstanding, any other term or provision of this Agreement, Tenant's rights
with respect to proceeds of insurance and of eminent domain awards are expressly
made subject and subordinate to the rights of Lender, and the disposition of
such proceeds shall be governed by the Mortgage, and the other "Loan Documents"
referred to therein, in all respects.
Non-Disturbance. So long as Tenant is not in default (beyond any period
expressed in the Lease within which Tenant may cure such default) in the payment
of rent or in the performance or observance of any of the terms, covenants or
conditions of the Lease on Tenant's part to be performed or observed, (i)
Tenant's occupancy of the Premises shall not be disturbed by Lender in the
exercise of any of its rights under the Mortgage during the term of the Lease,
or any extension or renewal thereof made in accordance with the terms of the
Lease, and (ii) Lender will not join Tenant as a party defendant in any action
or proceeding for the purpose of terminating Tenant's interest and estate under
the Lease because of any default under the Mortgage.
Attornment and Certificates. In the event Lender succeeds to the interest
of Borrower as Landlord under the Lease, or if the Property or the Premises are
sold pursuant to the power of sale under the Mortgage, Tenant shall attorn to
Lender, or a purchaser upon any such foreclosure sale, and shall recognize
Lender, or such purchaser, thereafter as the Landlord under the Lease. Such
attornment shall be effective and self-operative without the execution of any
further instrument. Tenant agrees, however, to execute and deliver at any time
and from time to time, upon the request of any holder(s) of any of the
indebtedness or other obligations secured by the Mortgage, or upon request of
any such purchaser, (a) any instrument or certificate which, in the reasonable
judgment of such holder(s), or such purchaser, may be necessary or appropriate
in any such foreclosure proceeding or otherwise to evidence such attornment, and
(b) an instrument or certificate regarding the status of the Lease, consisting
of statements, if true (and if not true, specifying in what respect), (i) that
the Lease is in full force and effect, (ii) the date through which rentals have
been paid, (iii) the duration and date of the commencement of the term of the
Lease, (iv) the nature of any amendments or modifications to the Lease, (v) that
no default, or state of facts, which with the passage of time, or notice, or
both, would constitute a default, exists on the part of either party to the
Lease, and (vi) the dates on which payments of additional rent, if any, are due
under the Lease.
Limitations. If Lender exercises any of its rights under the Assignment or
the Mortgage, or if Lender shall succeed to the interest of Landlord under the
Lease in any manner, or if any purchaser acquires the Property, or the Premises,
upon or after
2
any foreclosure of the Mortgage, or any deed in lieu thereof, Lender or such
purchaser, as the case may be, shall have the same remedies by entry, action or
otherwise in the event of any default by Tenant (beyond any period expressed in
the Lease within which Tenant may cure such default) in the payment of rent or
in the performance or observance of any of the terms, covenants and conditions
of the Lease on Tenant's part to be paid, performed or observed that the
Landlord had or would have had if Lender or such purchaser had not succeeded to
the interest of the present Landlord. From and after any such attornment, Lender
or such purchaser shall be bound to Tenant under all the terms, covenants and
conditions of the Lease, and Tenant shall, from and after such attornment to
Lender, or to such purchaser, have the same remedies against Lender, or such
purchaser, for the breach of an agreement contained in the Lease that Tenant
might have had under the Lease against Landlord, if Lender or such purchaser had
not succeeded to the interest of Landlord. Provided, however, that Lender or
such purchaser shall only be bound during the period of its ownership, and that
in the case of the exercise by Lender of its rights under the Mortgage, or the
Assignment, or any combination thereof, or a foreclosure, or deed in lieu of
foreclosure, all Tenant claims shall be satisfied only out of the interest, if
any, of Lender, or such purchaser, in the Property, and Lender and such
purchaser shall not be (a) liable for any act or omission of any prior landlord
(including the Landlord); or (b) liable for or incur any obligation with respect
to the construction of the Property or any improvements of the Premises or the
Property; or (c) subject to any offsets or defenses which Tenant might have
against any prior landlord (including the Landlord); or (d) bound by any rent or
additional rent which Tenant might have paid for more than the then current
rental period to any prior landlord (including the Landlord); or (e) bound by
any amendment or modification of the Lease, or any consent to any assignment or
sublet, made without Lender's prior written consent; or (f) bound by or
responsible for any security deposit not actually received by Lender; or (g)
liable for or incur any obligation with respect to any breach of warranties or
representations of any nature under the Lease or otherwise including without
limitation any warranties or representations respecting use, compliance with
zoning, landlord's title, landlord's authority, habitability and/or fitness for
any purpose, or possession; or (h) liable for consequential damages.
Rights Reserved. Nothing herein contained is intended, nor shall it be
construed, to abridge or adversely affect any right or remedy of: (a) the
Landlord under the Lease, or any subsequent Landlord, against the Tenant in the
event of any default by Tenant (beyond any period expressed in the Lease within
which Tenant may cure such default) in the payment of rent or in the performance
or observance of any of the terms, covenants or conditions of the Lease on
Tenant's part to be performed or observed; or (b) the Tenant under the Lease
against the original or any prior Landlord in the event of any default by the
original Landlord to pursue claims against such original or prior Landlord
whether or not such claim is barred against Lender or a subsequent purchaser.
3
Notice and Right to Cure. Tenant agrees to provide Lender with a copy of
each notice of default given to Landlord under the Lease, at the same time as
such notice of default is given to the Landlord, and that in the event of any
default by the Landlord under the Lease, Tenant will take no action to terminate
the Lease (a) if the default is not curable by Lender (so long as the default
does not interfere with Tenant's use and occupation of the Premises), or (b) if
the default is curable by Lender, unless the default remains uncured for a
period of thirty (30) days after written notice thereof shall been given,
postage prepaid, to Landlord at Landlord's address, and to Lender at the address
provided in Section 7 below; provided, however, that if any such default is such
that it reasonably cannot be cured within such thirty (30) day period, such
period shall be extended for such additional period of time as shall be
reasonably necessary (including, without limitation, a reasonable period of time
to obtain possession of the Property and to foreclose the Mortgage), if Lender
gives Tenant written notice within such thirty (30) day period of Lender's
election to undertake the cure of the default and if curative action (including,
without limitation, action to obtain possession and foreclose) is instituted
within a reasonable period of time and is thereafter diligently pursued. Lender
shall have no obligation to cure any default under the Lease.
Notices. Any notice or communication required or permitted hereunder shall
be in writing, and shall be given or delivered: (i) by United States mail,
registered or certified, postage fully prepaid, return receipt requested, or
(ii) by recognized courier service or recognized overnight delivery service; and
in any event addressed to the party for which it is intended at its address set
forth below:
To Lender:
To Tenant: Freedom of Information, Inc.
154 Crane Meadow Road,
Marlborough, MA
or such other address as such party may have previously specified by notice
given or delivered in accordance with the foregoing. Any such notice shall be
deemed to have been given and received on the date delivered or tendered for
delivery during normal business hours as herein provided.
No Oral Change. This Agreement may not be modified orally or in any manner
than by an agreement in writing signed by the parties hereto or their respective
successors in interest.
Successors and Assign. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs, personal
representatives, successors and assigns, and any purchaser or purchasers at
foreclosure of the Property or any portion thereof, and their respective heirs,
personal representatives, successors and assigns.
4
Payment of Rent To Lender. Tenant acknowledges that it has notice that the
Lease and the rent and all sums due thereunder have been assigned to Lender as
part of the security for the Obligations secured by the Mortgage. In the event
Lender notifies Tenant of a default under the Loan and demands that Tenant pay
its rent and all other sums due under the Lease to Lender, Tenant agrees that it
will honor such demand and pay its rent and all other sums due under the Lease
to Lender, or Lender's designated agent, until otherwise notified in writing by
Lender. Borrower unconditionally authorizes and directs Tenant to make rental
payments directly to Lender following receipt of such notice and further agrees
that Tenant may rely upon such notice without any obligation to further inquire
as to whether or not any default exists under the Mortgage or the Assignment,
and that Borrower shall have no right or claim against Tenant for or by reason
of any payments of rent or other charges made by Tenant to Lender following
receipt of such notice.
No Amendment or Cancellation of Lease. So long as the Mortgage remains
undischarged of record, Tenant shall not amend, modify, cancel or terminate the
Lease, or consent to an amendment, modification, cancellation or termination of
the Lease, or agree to subordinate the Lease to any other mortgage, without
Lender's prior written consent in each instance.
Options. With respect to any options for additional space provided to
Tenant under the Lease, Lender agrees to recognize the same if Tenant is
entitled thereto under the Lease after the date on which Lender succeeds as
Landlord under the Lease by virtue of foreclosure or deed in lieu of foreclosure
or Lender takes possession of the Premises; provided, however, Lender shall not
be responsible for any acts of any prior landlord under the lease, or the act of
any tenant, subtenant or other party which prevents Lender from complying with
the provisions hereof and Tenant shall have no right to cancel the Lease or to
make any claims against Lender on account thereof.
Captions. Captions and headings of sections are not parts of this
Agreement and shall not be deemed to affect the meaning or construction of any
of the provisions of this Agreement.
Counterpart. This Agreement may be executed in several counterparts each
of which when executed and delivered is an original, but all of which together
shall constitute one instrument.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
Parties Bound. The provisions of this Agreement shall be binding upon and
inure to the benefit of Tenant, Lender and Borrower and their respective
successors and assigns; provided, however, reference to successors and assigns
of Tenant shall not constitute a consent by Landlord or Borrower to an
assignment or sublet by
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Tenant, but has reference only to those instances in which such consent is not
required pursuant to the Lease or for which such consent has been given.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
LENDER:
ATTEST
_________________ BY:_____________________________
Name: Name:
Title: Title:
Date executed by Lender: _______, 1998
TENANT:
ATTEST: FREEDOM OF INFORMATION, INC.
_________________ BY:______________________________
Name: Name:
Title: Title: duly authorized
ATTEST:
____________________ BY:_______________________________
Name: Name:
Title: Title: duly authorized
Date executed by Tenant: _____________, 1998
STATE OF _______________________
_____________,ss. _________, 1998
Then personally appeared before me ______________________, ______________
of____________________, known to me and acknowledged the foregoing to be his
free act and deed on behalf of _______________ before me.
_______________________________
Notary Public
My Commission Expires:
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COMMONWEALTH OF MASSACHUSETTS
COUNTY, SS _____________, 1998
Then personally appeared, the above-named ________________________, of
Freedom of Information, Inc., known to me and acknowledged the foregoing
instrument to be his free act and deed on behalf of Freedom of Information,
Inc., before me.
_________________________________
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
_______________ COUNTY, SS ____________, 1998
Then personally appeared, the above-named of Freedom of Information, Inc.,
known to me and acknowledged the foregoing instrument to be his free act and
deed on behalf of Freedom of Information, Inc., before me.
________________________________
Notary Public
My Commission Expires:
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LSOF POOLED EQUITY L.P., as Landlord under the Lease, and Borrower under the
Mortgage and Security Agreement, the Loan Agreement and the other Loan
Documents, agrees for itself and its successors and assigns that:
1. The above agreement does not:
(a) constitute a waiver by Lender of any of its rights under the
Mortgage and Security Agreement or any of the other Loan
Documents; or
(b) in any way release Borrower from its obligations to comply with
the terms, provisions, conditions, covenants and agreements and
clauses of the Mortgage and Security Agreement and other Loan
Documents;
2. The provisions of the Mortgage and Security Agreement remain in full
force and effect and must be complied with by Borrower;
3. Tenant shall have the right to rely on any notice or request from
Lender which directs Tenant to pay rent to Lender without any
obligation to inquire as to whether or not a default exists and
notwithstanding any notice from or claim of Borrower to the contrary.
Borrower shall have no right or claim against Tenant for rent paid to
Lender after Lender so notifies Tenant to make payment of rent to
Lender; and
4. The Borrower shall be bound by all of the terms, conditions and
provisions of the foregoing Agreement in all respects.
Executed and delivered as a sealed instrument as of the _____ day of _____,
1998.
BORROWER: LSOF POOLED EQUITY L.P.
a Delaware limited partnership
By: LSOF GENPAR, INC.
a Texas corporation, its general partner
ATTEST:
By:
- --------------------------- --------------------------
Name: Name:
Title: Title: duly authorized
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ATTEST:
By:
- ---------------------------- --------------------------
Name: Name:
Title: Title: duly authorized
Date executed by Borrower: __________, 1998
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STATE OF TEXAS
COUNTY OF DALLAS, SS. __________, 1998
Then personally appeared the above-named ___________________________,
___________________________ of LSOF GenPar, Inc., known to me and acknowledged
the foregoing instrument to be his free act and deed on behalf of LSOF GenPar,
Inc., before me.
Notary Public
My Commission Expires
STATE OF TEXAS
COUNTY OF DALLAS, SS. __________, 1998
Then personally appeared the above-named ___________________________,
___________________________ of LSOF GenPar, Inc., known to me and acknowledged
the foregoing instrument to be his free act and deed on behalf of LSOF GenPar,
Inc., before me.
Notary Public
My Commission Expires:
EXHIBIT F
LANDLORD'S WORK
The following work to be done in the Premises shall be Landlord's Work:
I. PARTITIONS:
II. DOORS AND FRAMES:
III. HARDWARE:
IV. CEILINGS:
V. FLOOR COVERINGS:
VI. PAINTING:
VII. WINDOW TREATMENT:
VIII. FIRE PROTECTION:
IX. HEATING, VENTILATING AND AIR CONDITIONING
X. ELECTRICAL/LIGHTING
EXHIBIT G
CLEANING SERVICES
CLEANING SPECIFICATION
Office Area
Each Business Day:
Empty trash receptacles
Dust and spot clean horizontal surfaces, furniture, and bright work
Spot clean vertical surfaces
Clean water fountains
Clean partition and door glass
Vacuum carpeting
Clean kitchen counters and sinks
Weekly:
Clean Window glass (not including interior of the exterior windows)
Monthly:
Dust table and chair legs, baseboards, ledges, moldings
Vacuum fabric furniture
Clean and sanitize phones
Dust mini blinds
Quarterly:
Clean diffusers
High dusting
Shampoo carpets
Semi-Annually:
Clean exterior windows
Lavatories
Each Business Day:
Clean and sanitize fixtures, mirrors, horizontal surfaces
Polish chrome
Mop floors
Refill dispensers
Empty trash
Spot clean vertical surfaces
Monthly:
Wash all partitions, tile wall, and enamel surfaces
Quarterly:
Clean diffusers
Machine clean floors
Public Areas
Each Business Day:
Empty trash receptacles
Dust and spot clean horizontal surfaces, etc.
Spot clean vertical surfaces
Clean and polish drinking fountains
Clean doors and frames
Vacuum carpets, mop and buff floors
Clean and polish elevator walls and bright work
Vacuum elevator carpet and spot clean
Sweep stairs
Dust railings
Monthly:
High dust
Dust tables and chair legs, baseboards, ledges, moldings
Vacuum fabric furniture
Spot clean railings
Damp mop stairs and landings
Quarterly:
Wash trash receptacles
Clean diffusers
Shampoo carpets