EXHIBIT 10.1
L E A S E
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THIS INSTRUMENT IS A LEASE, dated as of August 31, 1995 in which the Landlord
and the Tenant are the parties hereinafter named, and which relates to space in
the building (the "Building") known and numbered as 80 Blanchard Road,
Burlington, Massachusetts. The parties to this instrument hereby agree with
each other as follows:
ARTICLE I
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BASIC LEASE PROVISIONS
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1.1 INTRODUCTION. The following terms and provisions set forth basic
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data and, where appropriate, constitute definitions of the terms
hereinafter listed:
1.2 BASIC DATA.
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LANDLORD: Teachers Realty Corporation
LANDLORD'S ORIGINAL ADDRESS:
c/o Finard & Company, Inc.
Three Burlington Woods Drive
Burlington, MA 01803
TENANT: Desktop Data, Inc.
TENANT'S ORIGINAL ADDRESS:
1601 Trapelo Road
Waltham, MA 02154
GUARANTOR: N/A
BASIC RENT:
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Period or Rate Per Basic Rent Monthly
Lease Year Square Foot (per annum) ----------
- - ---------------------------------- ----------- -----------
1 $10.03 $302,735.49 $25,227.95
2 $10.28 $310,281.24 $25,856.77
3 $10.53 $317,826.99 $26,485.58
4 $10.78 $325,372.74 $27,114.39
5 $11.03 $332,918.49 $27,743.20
6 $11.03 $332,918.49 $27,743.20
7 $11.03 $332,918.49 $27,743.20
8 $11.03 $332,918.49 $27,743.20
(partial year)
The Basic Rent set forth above is subject to increase and adjustment
effective as of the First Expansion Commencement Date by the amount of the
First Expansion Rent and again on the Second Expansion Commencement Date
by the amount of the Second Expansion Rent due to the addition of the
First Expansion Space and the Second Expansion Space to the "Premises",
all as more particularly set forth in Section 14.29(c) and (d) of this
Lease. Notwithstanding the foregoing to the contrary, in the event that
the entire Expansion Space is added to the Premises as of the "Expansion
Commencement Date", pursuant to Section 14.29(b) hereof (rather than
phased in pursuant to Sections 14.29(c) and (d) hereof) then, effective as
of the Expansion Commencement Date, the Basic Rent specified above shall
be increased and adjusted by the "Expansion Rent" (as defined in Section
14.29(b) hereof).
PREMISES RENTABLE AREA:
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Period Premises Rentable Area
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A. Subject to D. hereof, Approximately 30,183 rentable square feet
Commencement Date through the day
immediately preceding the First
Expansion Commencement Date
B. Subject to D. hereof, First Approximately 36,238 rentable square feet
Expansion Commencement Date through
the day immediately preceding the
Second Expansion Commencement Date
C. Subject to D. hereof, Second Approximately 39,482 rentable square feet
Expansion Commencement Date through
the last day of the Term of this
Lease
D. Notwithstanding the foregoing to the contrary, in the event that
the entire Expansion Space is added to the Premises as of the Expansion
Commencement Date pursuant to Section 14.29(b) hereof (rather than
phased in pursuant to Sections 14.29(c) and (d) hereof) then, effective
as of the Expansion Commencement Date and thereafter for the remainder
of the Term of this Lease, the Premises Rentable Area shall be deemed
to be 39,482 rentable square feet.
PERMITTED USES: General office and uses that are ancillary and incidental
to general office use exclusive however of any office use which would
cause the Premises to be deemed a "Place of Public Accommodation" as
defined in the Americans with Disabilities Act of 1990 and any regulations
promulgated thereunder, all as amended.
ESCALATION FACTOR:
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Period Escalation Factor
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A. Subject to D. hereof, Commencement 76.45%
Date through the day immediately
preceding the First Expansion
Commencement Date
B. Subject to D. hereof, First 91.78%
Expansion Commencement Date through
the day immediately preceding the
Second Expansion Commencement Date
C. Subject to D. hereof, Second 100%
Expansion Commencement Date through
the last day of the Term of this Lease
D. Notwithstanding the foregoing to the contrary, in the event that the
entire Expansion Space is added to the Premises as of the Expansion
Commencement Date pursuant to Section 14.29(b) hereof (rather than
phased in pursuant to Section 14.29(c) and (d) hereof) then, effective
as of the Expansion Commencement Date and thereafter for the remainder
of the Term of this Lease, the Escalation Factor shall be 100%.
INITIAL TERM: 7 years and three full calendar months commencing on the
Commencement Date and expiring at the close of the day which is 87 full
calendar months after the Commencement Date (plus any partial calendar
month in which the Commencement Date shall occur in the event that the
Commencement Date shall be other than the first day of a calendar month).
SECURITY DEPOSIT: $229,000.00 payable as and when provided in Section
14.17 hereof.
BASE OPERATING EXPENSES: The Operating Expenses for the calendar year
ending December 31, 1996 adjusted and extrapolated as provided in Section
9.1(ii) hereof.
BASE TAXES: The real estate taxes assessed to the Property for the fiscal
year ending June 30, 1996, as they may be reduced by the amount of any
abatement.
1.3 ADDITIONAL DEFINITIONS.
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MANAGER: Finard & Company, Inc.
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BUILDING RENTABLE AREA: 39,482 rentable square feet.
BUSINESS DAYS: All days except Saturday, Sunday, New Year's Day,
Washington's Birthday, Good Friday, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, the Friday immediately following Thanksgiving Day,
Christmas Day (and the following day when any such day occurs on Sunday).
COMMENCEMENT DATE: As defined in Section 4.1.
DEFAULT OF TENANT: As defined in Section 13.1.
ESCALATION CHARGES: The amounts prescribed in Sections 8.1 and 9.2.
ESCALATION FACTOR COMPUTATION: Premises Rentable Area divided by the
Building Rentable Area.
FORCE MAJEURE: Collectively and individually, strike or other labor
trouble, fire or other casualty, governmental preemption of priorities or
other controls in connection with a national or other public emergency or
shortages of, or inability to obtain, fuel, supplies or labor resulting
therefrom, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control.
INITIAL PUBLIC LIABILITY INSURANCE: $1,000,000 per person; $3,000,000 per
occurrence (combined single limit) for property damage, bodily injury or
death.
LEASE YEAR OR LEASE YEAR: Each consecutive 12 calendar month period
immediately following the Commencement Date, but if the Commencement Date
shall fall on other than the first day of a calendar month, then such
term shall mean each consecutive twelve calendar month period commencing
with the first day of the first full calendar month of the Initial Term.
The first lease year shall include any partial month between the
Commencement Date and the first day of the first full calendar month
immediately following the Commencement Date.
OBS Costs: Shall mean, as to the initial 30,183 square foot Premises
being built-out pursuant to Article IV hereof, all costs associated with
completing Landlord's Work resulting from the inclusion of matters not
shown on Exhibit B into Proposed Plans or Tenant's Plans and those costs
to Landlord resulting from changes in Tenant's Plans once approved by
Landlord and Tenant and as to the Expansion Space all costs of performing
Landlord's Expansion Work, Landlord's First Expansion Work and Landlord's
Second Expansion Work, as applicable, in excess of, respectively, the
Expansion Allowance, the
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First Expansion Allowance and the Second Expansion Allowance in excess of
Sections 14.29(b), (c) and (d) of this Lease.
OPERATING EXPENSES: As set forth in Section 9. 1.
OPERATING YEAR: As defined in Section 9.1.
PREMISES:
Period Premises
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A. Subject to D. hereof, The portions of the Building marked on Exhibit A
Commencement Date through as the "Original Space"
the day immediately
preceding the First
Expansion Commencement
Date
B. Subject to D. hereof, The portion of the Building marked on Exhibit A as
First Expansion the "Original Space" plus the "First Expansion
Commencement Date through Space"
the day immediately
preceding the Second
Expansion Commencement
Date
C. Subject to D. hereof, The portion of the Building marked on Exhibit A as
Second Expansion the "Original Space" plus the "First Expansion
Commencement Date through Space and the "Second Expansion Space"
the last day of the Term
of this Lease
D. Notwithstanding the foregoing to the contrary, in the event that the
entire Expansion Space is included in the Premises as of the Expansion
Commencement Date pursuant to Section 14.29(b) (rather than phased in
pursuant to Sections 14.29(c) and (d) hereof) then, effective as of the
Expansion Commencement Date and thereafter for the remainder of the
Term of this Lease, the Premises shall include the entire Expansion
Space.
PROPERTY: The Building and the land parcels on which it is located
(including adjacent sidewalks).
TAX YEAR: As defined in Section 8.1.
TAXES: As determined in accordance with Section 8. 1.
TENANTS REMOVABLE PROPERTY: As defined in Section 5.2.
TERM OF THIS LEASE: The Initial Term and any extension thereof in
accordance with the provisions hereof.
UTILITY EXPENSES: As defined in Section 9.1.
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EXHIBITS: The following Exhibits are annexed to this Lease and
incorporated herein by this reference:
Exhibit A - Plan showing Premises (including "Original Space", "First
Expansion Space" and "Second Expansion Space")
Exhibit B - Space Plan and Specifications
Exhibit B-1 - Tenant's Additional Work
Exhibit C - Landlord's Base Building Work
Exhibit D - Janitorial and Cleaning Services to be
provided to Premises
Exhibit E - Operating Expenses
Exhibit F - Plan of the Land Parcel
Exhibit G - Rules and Regulations
Exhibit H - Tenant's Approved Signage
ARTICLE II
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PREMISES AND APPURTENANT RIGHTS.
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2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for
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the Term of this Lease and upon the terms and conditions hereinafter set
forth, and Tenant hereby accepts from Landlord, the Premises upon the
terms and conditions hereinafter set forth.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
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appurtenant to the Premises, the non-exclusive right to use, and permit
its agents, servants, guests, employees and invitees to use in common with
others, public or common lobbies, hallways, stairways and elevators and
common walkways and roadways necessary for access to the Building together
with common parking areas, and if the portion of the Premises on any floor
includes less than the entire floor, the common toilets, corridors and
elevator lobby of such floor; but Tenant shall have no other appurtenant
rights and all such rights shall always be subject to reasonable rules and
regulations from time to time established by Landlord pursuant to Section
14.7 and to the right of Landlord to designate and change from time to
time areas and facilities so to be used. Landlord shall not grant rights
to use the parking areas on the Property to tenants or occupants of other
buildings, it being agreed and understood that the parking areas located
on the Property are exclusively for the use of tenants and occupants of
the Building.
(b) Excepted and excluded from the Premises are the areas above the
interior surface plane of the ceiling, floor slab, exterior perimeter
walls and exterior windows, except the inner surfaces thereof, but the
entry doors (and related glass and finish work) to the Premises are a part
thereof; and Tenant agrees that Landlord shall have
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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) interior storm
windows, subcontrol devices (by way of illustration, an electric sub
panel, etc.), utility lines, pipes, equipment and the like, in, over and
upon the Premises. Tenant shall install and maintain, as Landlord may
require, proper access panels in any hung ceilings or walls as may be
installed by Tenant in the Premises to afford access to any facilities
above the ceiling or within or behind the walls. Except as otherwise
expressly provided in this Lease, Landlord shall be responsible for the
installation, repair and maintenance of such access panels.
(c) Tenant and any permitted sublessee or permitted assignee of Tenant
shall have the right in common with other tenants of the Building to have
identity on the Building Directory Sign.
ARTICLE III
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BASIC RENT
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3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
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Landlord, commencing on the Commencement Date without offset, abatement
(except as otherwise expressly provided in this Lease), deduction or
demand, the Basic Rent. Such Basic Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every calendar
month during the Term of this Lease, at Landlord's Original Address, or at
such other place as Landlord shall from time to time designate by notice
to Tenant, in lawful money of the United States. In the event that any
installment of Basic Rent is not paid within ten (10) days after the due
date thereof, Tenant shall pay, in addition to any Escalation Charges or
other additional charges due under this Lease, at Landlord's request an
administrative fee equal to 5% of the overdue payment.
(b) Basic Rent for any partial month shall be pro-rated on a daily basis,
and if the first day on which Tenant must pay Basic Rent shall be other
than the first day of a calendar month, the first payment which Tenant
shall make to Landlord shall be equal to a proportionate part of the
monthly installment of Basic Rent for the partial month from the first day
on which Tenant must pay Basic Rent to the last day of the month in which
such day occurs, plus the installment of Basic Rent for the succeeding
calendar month.
(c) Intentionally Omitted.
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(d) Notwithstanding anything contained in Section 1.2 or in this Article
III to the contrary, Tenant shall not be required to pay Basic Rent for
and with respect to the first two (2) calendar months of the Initial Term.
ARTICLE IV
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COMMENCEMENT AND CONDITION
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4.1 COMMENCEMENT DATE. The Commencement Date shall be the last to occur
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of (i) November 1, 1995 (the "Construction Completion Date"), or (ii) the
day following the date on which the Premises are "ready for occupancy" as
provided in Section 4.2. Notwithstanding the foregoing, if Tenant's
personnel shall occupy all or any part of the Premises for the conduct of
its business prior to the Commencement Date, such date shall for all
purposes of this Lease be the Commencement Date. The Tenant shall, upon
demand of the Landlord, execute a certificate confirming the Commencement
Date as it is determined in accordance with the provisions of this Section
4.1. Notwithstanding the foregoing to the contrary, Landlord shall permit
Tenant's agents to have access to the Premises for purposes of performing
installation of Tenant's wiring and telecommunications systems in
coordination with Landlord's Contractors. Tenant shall cause and require
that its agents and contractors perform such work in compliance with
Article V and in such a manner as to avoid substantial interference with
the performance of Landlord's Work, Tenant's Additional Work and Landlord's
Base Building Work. From and after the date of such entry, Tenant shall be
bound by all of the provisions of this Lease except the obligation to pay
Basic Rent and Escalation Charges.
4.2 TENANT'S PLANS; APPROVALS; PREPARATION OF THE PREMISES.
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(a) Attached hereto as Exhibit B is a Space Plan together with
certain written specifications (hereafter the "Space Plan") depicting
installations and improvements necessary to prepare the Premises for
Tenant's occupancy. Upon execution and delivery of this Lease by Landlord
and Tenant, Landlord shall cause its architects and engineers to prepare
final working drawings and specifications reflecting the work and
improvements shown on Exhibit B (the "Proposed Plans"). Upon completion of
such Proposed Plans, Landlord shall submit same to Tenant for review and
approval Tenant shall either approve or reject such Proposed Plans within
ten (10) days after receipt from Landlord. Tenant hereby agrees to approve
such Proposed Plans provided that they are substantially in compliance with
those matters set forth in Exhibit B. Failure of Tenant to object to any
aspect of such Proposed Plans within the time and manner provided
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above shall be deemed an approval of such Proposed Plans and authorization
for Landlord to proceed with Landlord's Work in accordance therewith.
Tenant shall have the right to consult with Landlord's architect for
purposes of review and approval of Proposed Plans.
If Tenant shall reject any aspect of such Proposed Plans within
the time and manner provided above, Landlord shall promptly make such
revisions to the Proposed Plans as may be necessary so as to bring them
into substantial compliance with the matters set forth in Exhibit B.
Tenant shall approve such revised Proposed Plans provided that the matters
shown thereon are in substantial compliance with those matters set forth in
Exhibit B. Tenant shall approve or reject such revised Proposed Plans
within Ten (10) days after receipt from Landlord. Failure of Tenant to
object to any aspect of such revised Proposed Plans within the time and
manner herein provided shall be deemed a waiver of such right by Tenant and
Tenant shall be deemed to have approved such revised Proposed Plans as
submitted by Landlord and to have authorized Landlord to proceed with
Landlord's Work in accordance therewith. Upon approval of such Proposed
Plans by both Landlord and Tenant in accordance with the provisions hereof,
such working drawings and specifications shall be deemed to be Tenant's
Plans for all purposes under this Lease.
To the extent that Tenant shall request any changes or
modifications to the Proposed Plans (other than changes necessary to make
the Proposed Plans substantially comply with the matters set forth in
Exhibit B), and provided the Landlord shall approve such changes, which
approval shall not be unreasonably withheld or delayed, Landlord shall
promptly make such revisions as requested by Tenant. Upon completion of
such revised Proposed Plans, Landlord shall submit same, together with a
statement from Landlord of the OBS Costs, if any, and the amount of Tenant
Delays, if any, in completing Landlord's Work as a result of such requested
changes, to Tenant for Tenant's prompt review and approval. Tenant shall
respond to such revisions within Ten (10) days after receipt from Landlord.
Tenant's failure to respond to any such changes within the Ten (10) day
period specified above shall be deemed an approval of such revised Proposed
Plans, acceptance of the applicable OBS Costs and the amount of Tenant
Delays, if any, and authorization to Landlord to proceed with the work as
shown on such revised Proposed Plans. Upon final approval of revised
Proposed Plans by Landlord and Tenant, Landlord shall proceed with the work
as shown on such revised Proposed Plans.
To the extent that Tenant shall request any changes or
modifications to Tenant's Plans once they are approved by Landlord and
Tenant or if Tenant shall require modifications to Proposed Plans to
include matters not specifically shown on Exhibit B (and provided that
Landlord shall approve such
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changes, in accordance with the provisions of this Lease), Tenant shall pay
the additional cost of completing Landlord's Work as the result of such
changes to Landlord as OBS Costs hereunder as follows: 50% of OBS Costs
shall be paid at the time of approval of such change and 50% shall be paid
on the Commencement Date (or, in either case, at such later time as
Landlord advises Tenant of the amount of such excess). Tenant shall, if
requested by Landlord, execute a work letter confirming such excess costs
prior to the time Landlord shall be required to commence work.
Landlord shall exercise all reasonable good faith efforts to
complete the work ("Landlord's Work") necessary to prepare the Premises for
Tenant's occupancy pursuant to Tenant's Plans and Landlord's Base Building
Work on or before the Construction Completion Date, but Tenant shall have
no claim against Landlord for failure to complete such Landlord's Work and
Landlord's Base Building Work on or before the Construction Completion
Date, except for the right to terminate this Lease in accordance with
Section 4.2(c). Landlord hereby agrees to perform Landlord's Work and
Landlord's Base Building Work (i) in compliance with all applicable laws,
rules, ordinances and codes in effect as of the Commencement Date (ii) in a
good and workmanlike manner and (iii) at Landlord's sole cost and expense
(subject to Tenant's obligation to pay OBS Costs as hereinabove set forth).
(b) The Premises shall be deemed "ready for occupancy" on the first
Business Day (the "Substantial Completion Date") following written notice
to Tenant that Landlord's Work and Landlord's Base Building Work have been
completed except for items of work (and, if applicable, adjustment of
equipment and fixtures) which can be completed after occupancy has been
taken without causing substantial interference with Tenant's use of the
Premises (i.e., so called "punch list" items) which notice shall be
accompanied by Landlord's and the architect's certificates certified to
Tenant that Landlord's Work and Landlord's Base Building Work have been
substantially completed (a "Completion Certificate") and Landlord shall
have obtained a Final Certificate of Occupancy or an Occupancy Permit for
the Premises (a "C of O"). It is agreed and understood that a so-called
"conditional" or "temporary" Certificate of Occupancy or Occupancy Permit
shall be deemed to satisfy the C of O requirement of the immediately
preceding sentence provided that the only condition(s) to issuance of a
Final C of O then outstanding pertain solely to matters or work which are
the responsibility of the Tenant rather than the obligation or
responsibility of Landlord under this Lease. Tenant shall provide Landlord
with the final punch list (the "Final Punch List") within Ten (10) days
after Tenant's receipt of a Completion Certificate from Landlord's
Architect. Tenant shall afford Landlord access to the Premises for the
purpose of completing the Final Punch List after the Commencement
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Date, if necessary and such Final Punch List shall be completed within
Thirty (30) days after Landlord's receipt of same.
(c) If the Substantial Completion Date has not occurred by the Construction
Completion Date (as it may be extended pursuant to Section 4.4), Tenant
shall have the right to terminate this Lease by giving notice to Landlord,
not later than fifteen (15) days after the Construction Completion Date (as
so extended), of Tenant's desire so to do. Upon the giving of such notice
within the time and manner required, this Lease shall cease and come to an
end without further liability or obligation on the part of either party and
Landlord shall release any security then being held by Landlord under this
Lease on the date which is the first to occur of (i) the date which is
seventy five (75) days after the giving of such notice (which 75 day period
shall be automatically extended by delays in Substantial Completion caused
by Force Majeure) or (ii) March 1, 1996 (the "Outside Date"), unless,
within such period, Landlord substantially completes Landlord's Work to the
extent required by Section 4.2(b) above, which substantial completion shall
void Tenant's election to terminate; and such right of termination shall be
Tenant's sole and exclusive remedy at law or in equity for Landlord's
failure so to complete such work within such time.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Unless Tenant
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shall have given Landlord written notice by the end of the first full
calendar year after the Commencement Date of specific respects in which
Landlord has not performed Landlord's Work and Landlord's Base Building
Work in compliance with the matters set forth in Exhibit B and the final
approved Tenant's Plans, Tenant shall have no claim that Landlord has
failed to perform any of Landlord's Work or Landlord's Base Building Work.
Except for Landlord's Work and Landlord's Base Building Work and except as
otherwise expressly provided in this Lease, the Premises are being leased
in their condition, "as is" without warranty or representation by Landlord.
Landlord hereby agrees to perform Landlord's Work and Landlord's Base
Building Work in compliance with the requirements of the Americans with
Disabilities Act of 1990 as amended. Tenant acknowledges that it has
inspected the Premises and common areas of the Building and, except for
Landlord's Work and Landlord's Base Building Work shown on Exhibit C has
found the same to be satisfactory.
4.4 TENANT'S DELAYS. (a) If a delay shall occur in the
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Substantial Completion Date as the result of:
(i) any written request by Tenant that Landlord delay in the
commencement or completion of Landlord's Work for any reason; or
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(ii) any requested change by Tenant in Exhibit B or Proposed
Plans (except such changes to Proposed Plans as are required and necessary
due to the fact that Proposed Plans are not submitted to Tenant
substantially in accordance with Exhibit B) Tenant's Plans or Tenant's
failure to timely approve Proposed Plans submitted to Tenant for approval
by Landlord; or
(iii) any other act or omission of Tenant or its officers,
partners, agents, servants or contractors which shall cause a delay in the
Substantial Completion Date; or
(iv) any requested change by Tenant with respect to Exhibit B-1;
or
(v) any reasonably necessary displacement of any of Landlord's
Work from its place in Landlord's construction schedule resulting from any
of the causes for delay referred to in clauses (i), (ii), (iii) or (iv) of
this paragraph and the fitting of such Work back into the schedule;
then, in any such event, Tenant shall, from time to time and within ten
(10) days after demand therefor, pay to Landlord for each day the
Substantial Completion Date is delayed by reason of the delays referred to
in clauses (i), (ii), (iii), (iv) or (v) above, an amount equal to one day
of Basic Rent (pro-rated on a daily basis) for each such day of delay.
Landlord shall provide Tenant with written notice of any circumstances
which will result in a Tenant's Delay within a reasonable time after
Landlord or Landlord's agents, employees or contractors shall have actual
knowledge and notice of the occurrence of any such circumstances. Landlord
shall provide Tenant with written notice of any claimed Tenant's Delay.
(b) The delays referred to in paragraph (a) are herein referred to
collectively and individually as "Tenant's Delay".
(c) If, as a result of Tenant's Delay, the Substantial Completion Date is
delayed in the aggregate for more than seventy five (75) days, Landlord may
(but shall not be required to) at any time thereafter terminate this Lease
by giving written notice of such termination to Tenant and thereupon this
Lease shall terminate without further liability or obligation on the part
of either party, except that Tenant shall pay to Landlord the cost
theretofore incurred by Landlord in performing Landlord's Work, plus an
amount equal to Landlord's out-of-pocket expenses incurred in connection
with this Lease, including, without limitation, brokerage and reasonable
legal fees, together with any amount required to be paid pursuant to
paragraph (a) through the effective termination date.
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(d) The Construction Completion Date and the Outside Date (as defined in
Section 4.2(c) shall automatically be extended for the period of any delays
caused by Tenant's Delay.
4.5 LANDLORD'S BASE BUILDING WORK. Landlord hereby agrees to perform the
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work and provide the materials necessary to complete the improvements
referenced in Exhibit C hereto ("Landlord's Base Building Work") at
Landlord's sole cost and expense on or before the Commencement Date.
4.6 SATELLITE DISH. To the extent permitted by applicable laws, rules,
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ordinances and codes of the Town of Burlington or any other state or
federal agency having jurisdiction, Landlord will not unreasonably withhold
or delay its consent to the installation of up to ten (10) rooftop
satellite dishes on the roof of the building. Such satellite dishes shall
be used solely by Tenant in the course and conduct of its business and
Tenant shall not grant others the right to use same. Tenant shall be
responsible for all costs and expenses associated with the installation,
maintenance and repair of said rooftop satellite dishes. The location of
any such dish shall be subject to the mutual agreement of Landlord and
Tenant which shall not be unreasonably withheld or delayed. Upon
expiration or earlier termination of the Lease, Tenant shall remove such
satellite dishes from the roof of the building and repair any damage to the
roof of the building caused by the installation and/or removal of such
satellite dishes. Tenant hereby acknowledges and agrees that Landlord
makes no representation or warranty as to whether or not installation of
rooftop satellite dishes is permitted in accordance with applicable laws of
the Town of Burlington and/or any other state, local or federal agency.
Tenant hereby acknowledges and agrees that responsibility for compliance of
law with respect to such satellite dishes shall be the sole and exclusive
responsibility of the Tenant. Notwithstanding anything to the contrary in
this Lease, Tenant shall be solely responsible for any damages or the cost
of any repairs to or replacements of the building roof system resulting
from the installation, removal or maintenance of the satellite dishes by
Tenant.
4.7 TENANT'S ADDITIONAL WORK. Attached as Exhibit B-1 is a description
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of certain work and improvements which Tenant has requested that Landlord
perform ("Tenant's Additional Work"). Landlord and Tenant hereby approve
all matters described in Exhibit B-1. Landlord shall perform Tenant's
Additional Work in compliance with all applicable laws and in a good and
workmanlike manner.
As an additional charge under this Lease, Tenant shall reimburse Landlord
for all costs and expenses incurred by Landlord in connection with
performing Tenant's Additional Work in the amounts shown on Exhibit
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B-1 as and when Tenant is invoiced therefor by Landlord, but in no event
later than thirty (30) days after such invoice. If Tenant shall request
and Landlord shall agree to perform any modifications or changes to Exhibit
B-1, Tenant shall also be responsible for any costs or expenses incurred by
Landlord in connection with performing the work resulting from modification
or change to B-1. Notwithstanding the foregoing to the contrary, Landlord
shall be responsible for the first $25,000.00 of the cost of Tenant's
Additional Work.
ARTICLE V
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USE OF PREMISES
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5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
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occupied by Tenant only for Permitted Uses.
(b) Tenant agrees to conform to the following provisions during the Term
of this Lease:
(i) Tenant shall cause all freight to be delivered to or removed
from the Building and the Premises in accordance with reasonable rules and
regulations established by Landlord therefor;
(ii) Except as expressly permitted in Section 14.30 hereof, Tenant
will not place on the exterior of the Premises (including both interior
and exterior surfaces of doors and interior surfaces of windows) or on any
part of the Building outside the Premises, any signs, symbol,
advertisements or the like visible to public view outside of the Premises.
Landlord will not unreasonably withhold consent for signs or lettering in
Tenant's reception area or on the entry doors to the Premises provided
such signs conform to building standards adopted by Landlord and Tenant
has submitted a sketch of the sign to be placed on such entry doors.
In addition to the foregoing, at such time as the Tenant is the sole
tenant of the Building (and only during such times as Tenant is the sole
Tenant of the Building) Landlord shall not unreasonably withhold or delay
its consent to Tenant installing signage consisting of Tenant's name on
the exterior glass main entry door to the Building. Tenant shall remove
any such signage upon expiration or earlier termination of the Term of
this Lease.
(iii) Tenant shall not perform any act or carry on any practice
which may injure the Premises, or any other part of the Building, or
cause offensive odors or loud
-15-
noise or constitute a nuisance or menace to any other tenant or tenants
or other persons in the Building;
(iv) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and regulations;
and
(v) Tenant shall only occupy the Premises for the Permitted Uses and
for no other purposes.
5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no
---------------------------------------
alterations, additions (including, for the purposes hereof, wall-to-wall
carpeting), or improvements in or to the Premises without Landlord's prior
written consent. Any such alterations, additions or improvements shall (i)
be in accordance with complete plans and specifications prepared by Tenant
and approved in advance by Landlord; (ii) be performed in a good and
workmanlike manner and in compliance with all applicable laws including,
without limitation, the provisions of the Americans with Disabilities Act
of 1990 and applicable regulations; (iii) be performed and completed in
the manner required in Section 5.2(d) hereof; (iv) be made at Tenant's
sole expense and at such times as Landlord may from time to time
reasonably designate; and (v) become a part of the Premises and the
property of Landlord unless Landlord shall require removal thereof by
Tenant upon expiration or earlier termination of the Term of this Lease or
if Tenant shall advise Landlord that Tenant intends to remove same upon
expiration of this Lease, by written notice to Landlord either at the time
Tenant shall request permission to install same or no later than nine (9)
months prior to expiration of the Term of this Lease. Tenant shall repair
any damage occasioned by such removal. Notwithstanding the foregoing to
the contrary, Landlord will not unreasonably withhold or delay its consent
to non-structural and non-mechanical alterations or improvements to the
Premises.
(b) All articles of personal property and all business fixtures, machinery
and equipment and furniture owned or installed by Tenant solely at its
expense in the Premises ("Tenant's Removable Property") shall remain the
property of Tenant and may be removed by Tenant at any time prior to the
expiration of this Lease, provided that Tenant, at its expense, shall
repair any damage to the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any labor
or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for any such labor or materials shall attach
to or affect the reversion or other estate or interest of Landlord in and
to the Premises. Whenever and as often as any mechanic's lien shall have
been filed against the
-16-
Premises based upon any act or interest of Tenant or of anyone claiming
through Tenant, Tenant shall forthwith take such actions by bonding,
deposit or payment as will remove or satisfy the lien.
(d) All of the Tenant's alterations, additions and installation of
furnishings shall be coordinated with any work being performed by Landlord
and in such manner as to maintain harmonious labor relations and not
damage the Property or interfere with Building construction or operation
and, except for installation of furnishings, shall be performed by
contractors or workmen first approved by Landlord, which approval will not
be unreasonably withheld or delayed. Installation and moving of
furnishings, equipment and the like shall be performed only with labor
compatible with that being employed by Landlord for work in or to the
Building and not to employ or permit the use of any labor or otherwise
take any action which might result in a labor dispute involving personnel
providing services in the Building. Except for work by Landlord's general
contractor, Tenant before its work is started shall: secure all licenses
and permits necessary therefor; deliver to Landlord a statement of the
names of all its contractors and subcontractors and the estimated cost of
all labor and material to be furnished by them; and cause each contractor
to carry workmen's compensation insurance in statutory amounts covering
all the contractor's and subcontractor's employees and comprehensive
public liability insurance and property damage insurance with such limits
as Landlord may reasonably require but in no event less than a combined
single limit of Two Million and No/100ths ($2,000,000.00) Dollars (all
such insurance to be written in companies approved by Landlord and
insuring Landlord and Tenant as well as the contractors), and to deliver
to Landlord certificates of all such insurance. Tenant agrees to pay
promptly when due the entire cost of any work done on the Premises by
Tenant, its agents, employees, or independent contractors, and not to
cause or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the Premises or the Property and to
discharge any such liens which may so attach within thirty (30) days of
attachment and, at the request of Landlord to deliver to Landlord
performance bonds as to work that has an aggregate cost of completion in
excess of $100,000.00. Upon completion of any work done on the Premises
by Tenant, its agents, employees, or independent contractors, Tenant shall
promptly deliver to Landlord original lien releases and waivers executed
by each contractor, subcontractor, supplier, materialmen, architect,
engineer or other party which furnished labor, materials or other services
in connection with such work and pursuant to which all liens, claims and
other rights of such party with respect to labor, material or services
furnished in connection with such work are unconditionally released and
waived.
-17-
ARTICLE VI
----------
ASSIGNMENT AND SUBLETTING
-------------------------
6.1 PROHIBITION. (a) Except as otherwise expressly provided in this
------------
Lease, Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise, neither this Lease nor
the term and estate hereby granted, nor any interest herein or therein,
will be assigned, mortgaged, pledged, encumbered or otherwise transferred
and that neither the Premises nor any part thereof will be encumbered in
any manner by reason of any act or omission on the part of Tenant, or used
or occupied, by anyone other than Tenant, or for any use or purpose other
than a Permitted Use, or be sublet (which term, without limitation, shall
include granting of concessions, licenses and the like) in whole or in
part, or be offered or advertised for assignment or subletting.
(b) The provisions of paragraph (a) of this Section shall not apply to
transactions with an entity into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are
transferred or to any entity which controls or is controlled by Tenant or
is under common control with Tenant, provided that in any of such events
(i) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the net worth
of Tenant immediately prior to such merger, consolidation or transfer,
(ii) proof reasonably satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least 10 days prior to the effective
date of any such transaction, and (iii) the assignee agrees directly with
Landlord, by written instrument in form reasonably satisfactory to
Landlord, to be bound by all the obligations of Tenant hereunder
including, without limitation, the covenant against further assignment or
subletting.
(c) If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may, at any time
and from time to time, collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to the rent and
other charges herein reserved, but no such assignment, subletting,
occupancy, collection or modification of any provisions of this Lease
shall be deemed a waiver of this covenant, or the acceptance of the
assignee, subtenant or occupant as a tenant or a release of the original
named Tenant from the further performance by the original named Tenant
hereunder. No assignment or subletting hereunder shall relieve Tenant from
its obligations hereunder and Tenant shall remain fully and
-18-
primarily liable therefor. No assignment or subletting, or occupancy shall
affect Permitted Uses.
(d) In connection with any request by Tenant for consent to
assignment or subletting, Tenant shall first submit to Landlord in
writing: (i) the name of the proposed assignee or subtenant, (ii) such
information as to its financial responsibility and standing as Landlord
may reasonably require, and (iii) all terms and provisions upon which the
proposed assignment or subletting is to be made. Upon receipt from Tenant
of such request and information, the Landlord shall have an option
(sometimes hereinafter referred to as the "option" or "Take Back Option")
to be exercised in writing within fifteen (15) days after its receipt from
Tenant of such request and information, if the request is to assign the
Lease or to sublet all of the Premises, to cancel or terminate this Lease,
or, if the request is to sublet a portion, of the Premises only, to cancel
and terminate this Lease with respect to such portion, in each case, as of
the date set forth in Landlord's notice of exercise of such option, which
shall be not less than thirty (30) nor more than sixty (60) days following
the giving of such notice; in the event Landlord shall exercise such
option, Tenant shall surrender possession of the entire Premises, or the
portion which is the subject of the option, as the case may be, on the
date set forth in such notice in accordance with the provisions of this
Lease relating to surrender of Premises at the expiration of the Term. If
this Lease shall be cancelled as to a portion of the Premises only, Basic
Rent, and Escalation Charges shall thereafter be abated proportionately
according to the ratio the number of square feet of the portion of the
space surrendered bears to the size of the Premises.
If Landlord shall not exercise its option pursuant to the foregoing
provisions, Landlord will not unreasonably delay or withhold its consent
to the assignment or subletting to the party referred to upon all the
terms and provisions set forth in Tenant's notice to Landlord, provided
that the terms and provisions of such assignment or subletting shall
specifically make applicable to the assignee or sublessee all of the
provisions of this Article VI of the Lease so that Landlord shall have
against the assignee or sublessee all rights with respect to any further
assignment or subletting which are set forth in Article VI of the Lease as
amended hereby except that no such assignee or sublessee shall have any
right to further assign or sublet the Premises. Further, in any case where
Landlord consents to an assignment or a subletting, Landlord shall be
entitled to receive all Subleasing Overages (as said term is hereinafter
defined). As used herein, the term "Subleasing Overages" shall mean, for
each period in question, all amounts received by Tenant in excess of Basic
Rent, and Escalation Charges and other
-19-
items of additional rent reserved under this Lease attributable to the
space sublet (including, without limitation, all lump sum payments made in
connection therewith).
Any such assignment or subletting shall nevertheless be subject to
all the terms and provisions of Article VI and no assignment shall be
binding upon Landlord or any of Landlord's mortgagees, unless Tenant shall
deliver to Landlord an instrument in recordable form which contains a
covenant of assumption by the assignee running to Landlord and all persons
claiming by, through or under Landlord. The failure or refusal of the
assignee to execute such instrument of assumption shall not release or
discharge the assignee from its liability as Tenant hereunder. In
addition, Tenant shall furnish to Landlord a conformed copy of any
sublease effected under terms of this Article VI. In no event shall the
Tenant hereunder be released from its liability under this Lease.
(e) Provided that Tenant shall first provide Landlord with written
notice and the information described in clauses d(i), (ii) and (iii) of
Section 6.1(d) hereof, Landlord shall not unreasonably withhold or delay
its consent (nor shall the Take Back Option apply) to the subletting of up
to 10,000 rentable square feet of the Premises (in the aggregate). In
addition, Landlord shall only be entitled to receive 50% of the Subleasing
Overages attributable to a subletting made by Tenant pursuant to the
provisions of Section 6.1(e) hereof. Except as herein specified all other
provisions of this Article VI shall be applicable to any such subletting
made by Tenant pursuant to this Section 6.1 (e).
(f) As additional rent, Tenant shall reimburse Landlord promptly for
reasonable legal and other expenses incurred by Landlord in connection
with any assignment or subletting under this Article VI.
ARTICLE VII
-----------
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
------------------------------------------------------
SERVICES TO BE FURNISHED BY LANDLORD
------------------------------------
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
-----------------
Landlord agrees to keep in good order, condition and repair the roof,
common areas, exterior walls (including exterior glass) and structure of
the Building (including plumbing, mechanical and electrical systems
installed by Landlord but excluding any Liebert hvac units serving
Tenant's computer room and any systems installed by Tenant or installed
specifically for Tenant's benefit
-20-
after the completion of Landlord's Work pursuant to Article IV), all
insofar as they affect the Premises, except that Landlord shall in no
event be responsible to Tenant for the condition of glass in the Premises
or for the doors (or related glass and finish work) leading to the
Premises, or for any condition in the Premises or the Building caused by
any act or neglect of Tenant, its agents, employees, invitees or
contractors. Subject to all other applicable provisions of this Lease, if
Landlord or Landlord's agents, servants, employees or contractors shall
negligently perform or negligently fail to perform a repair, and as a
result of such negligent act or omission in performing such repair, damage
to the physical condition of the Premises shall occur, then Landlord
shall, at its sole cost and expense, repair such physical damage to the
Premises (exclusive of Tenant's Removable Property) resulting from such
negligent act or omission by Landlord (and the cost of repairing such
physical damage shall not be includable in Operating Expenses). Landlord
shall not be responsible to make any improvements or repairs to the
Premises or Building other than as expressly in this Section 7.1 provided,
unless expressly provided otherwise in this Lease. Except as otherwise
expressly provided in this Section 7.1, all costs and expenses sustained
or incurred by Landlord in performing its obligations pursuant to this
Section 7.1 shall be included in Operating Expenses.
(b) Landlord shall never be liable for any failure to make repairs which
Landlord has undertaken to make under the provisions of this Section 7.1
or elsewhere in this Lease, unless Tenant has given notice to Landlord of
the need to make such repairs, and Landlord has failed to commence to make
such repairs within a reasonable time after receipt of such notice, or
fails to proceed with reasonable diligence to complete such repairs.
(c) Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option be furnished from time
to time, in whole or in part, by employees of Landlord or by the Manager
of the Property or by one or more third persons.
7.2 TENANT'S AGREEMENT. (a) Tenant will keep neat and clean and maintain
-------------------
in good order, condition and repair the Premises and every part thereof,
excepting only those repairs for which Landlord is responsible under the
terms of this Lease, reasonable wear and tear of the Premises, and damage
by fire or other casualty and 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 continually
during the Term of this Lease maintain the Premises in accordance with all
laws, codes and ordinances from time to time in effect and all directions,
rules and
-21-
regulations of the proper officers of governmental agencies having
jurisdiction, and of the Boston Board of Fire Underwriters, and shall, at
Tenant's own expense, obtain all permits, licenses and the like required
by applicable law.
Notwithstanding the foregoing provisions of this Section 7.2(a), and
provided that Tenant is acting in good faith, Tenant shall have the right
to contest or appeal any order by a court or governmental authority
requiring compliance with such laws, ordinances, directions, rules or
regulations and to negotiate compliance therewith and Tenant shall not be
required to comply with same to the extent that Tenant is in good faith
contesting or appealing compliance by appropriate proceedings.
Notwithstanding anything contained in this paragraph to the contrary, in
no event shall any such non-compliance, contest or appeal by Tenant result
in or impose upon Landlord any criminal or civil penalties or enforcement
actions or liabilities of any kind or nature. Further, Tenant hereby
agrees to indemnify and hold Landlord harmless from and against any loss,
cost, damage, claim, injury or harm sustained or incurred by Landlord
(including, without limitation, all costs and legal fees) as the result of
or related to any attempted exercise or exercise of Tenant's rights to
contest not comply or appeal as set forth in this paragraph.
Notwithstanding the foregoing or the provisions of Article XII, Tenant
shall be responsible for the cost of repairs which may be necessary by
reason of damage to the Building caused by any act or neglect of Tenant or
its agents, employees, contractors or invitees (including any damage by
fire or any other casualty arising therefrom).
(b) 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 (the provisions
of Section 14.18 being applicable to the costs thereof) and shall not be
responsible to Tenant for any loss or damage that may accrue to Tenant's
stock or business by reason thereof. Notwithstanding the foregoing,
Landlord may elect to take action hereunder immediately and without notice
to Tenant if Landlord reasonably believes an emergency to exist.
(c) Without limitation of the foregoing provisions of this Section 7.2,
Tenant shall throughout the Term of this Lease perform, at Tenant's sole
cost and expense, the cleaning and janitorial services to the Premises and
(as specified in Exhibit D) the Common Areas of the Building in accordance
with and as and when specified in Exhibit D. It is agreed and understood
that Landlord shall have no
-22-
responsibility to clean the Premises or the Common Areas or any of the
windows of the Building.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load
-----------------------------
upon any floor in the Premises exceeding 80 pounds per square foot and
which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all business machines and mechanical equipment,
including safes, which shall be placed so as to distribute the weight.
Business machines and mechanical equipment shall be placed and maintained
by Tenant at Tenant's expense in settings sufficient, in Landlord's
judgment, to absorb and prevent vibration, noise and annoyance. Tenant
shall not move any safe, heavy machinery, heavy equipment, freight, bulky
matter or fixtures into or out of the Building without Landlord's prior
consent, which consent shall not be unreasonably withheld or delayed but
which may include a requirement to provide insurance, naming Landlord as
an insured, in such amounts as Landlord may deem reasonable.
(b) 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 such 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, indemnity and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly
from such moving.
7.4 BUILDING SERVICES. (a) Landlord shall furnish heating and cooling as
------------------
normal seasonal changes may require to provide reasonably comfortable
space temperature and ventilation for occupants of the Premises under
normal business operation at an occupancy of not more than one person per
125 square feet of Premises Rentable Area. The cost and expense of
utilities required to provide heating, ventillation and cooling to the
Premises shall be borne by Tenant in accordance with the provisions of
Section 7.5 hereof. In the event Tenant introduces to the Premises
personnel or equipment which overloads the capacity of the Building system
or in any other way interferes with the system's ability to perform
adequately its proper functions, supplementary systems may, if and as
needed, at Landlord's option, be provided by Landlord, at Tenant's
expense.
(b) Landlord shall also provide:
(i) Passenger elevator service from the existing passenger elevator
system in common with Landlord and other tenants in the Building on a 24
hour, seven (7) day a week basis.
-23-
(ii) Cold water (at temperatures supplied by the Town of Burlington)
for drinking, lavatory and toilet purposes on a 24 hour, seven (7) day a
week basis. If Tenant uses water for any purpose other than for ordinary
lavatory, shower and drinking purposes, Landlord may assess a reasonable
charge for the additional water so used, or install a water meter and
thereby measure Tenant's water consumption for all purposes. In the
latter event, Tenant shall pay the cost of the meter and the cost of
installation thereof and shall keep such meter and installation equipment
in good working order and repair. Tenant agrees to pay for water
consumed, as shown on such meter, together with the sewer charge based on
such meter charges, as and when bills are rendered, and in default in
making such payment Landlord may pay such charges and collect the same
from Tenant as an additional charge.
(iii) Intentionally Omitted.
(iv) Access to the Premises seven days per week, twenty-four hours
per day, subject to reasonable security restrictions and restrictions
based on emergency conditions and all other applicable provisions of this
Lease including, without limitation, the provisions of Section 7.4(a)
hereof.
(v) Landscaping for the exterior areas of the Property and snow and
ice removal with respect to the parking areas, roadways and sidewalks
located on the Property.
(c) Landlord reserves the right to curtail, suspend, interrupt and/or stop
the supply of water, sewage, electrical current, cleaning, and other
services, and to curtail, suspend, interrupt and/or stop use of entrances
and/or lobbies serving access to the Building, without thereby incurring
any liability to Tenant, when necessary by reason of accident or
emergency, or for repairs, alterations or replacements, in the reasonable
judgment of Landlord desirable or necessary, or when prevented from
supplying such services or use by strikes, lockouts, difficulty in
obtaining materials, accidents or any other cause beyond Landlord's
control, or by laws, orders or inability, by exercise of reasonable
diligence, to obtain electricity, water, gas, steam, coal, oil or other
suitable fuel or power. No diminution or abatement of rent or other
compensation, nor any direct, indirect or consequential damages shall or
will be claimed by Tenant as a result of, nor shall this Lease or any of
the obligations of Tenant be affected or reduced by reason of, any such
interruption, curtailment, suspension or stoppage in the furnishing of the
foregoing services or use, irrespective of the cause thereof. Failure or
omission on the part of Landlord to furnish any of the foregoing
-24-
services or use shall not be construed as an eviction of Tenant, actual or
constructive, nor entitle Tenant to an abatement of rent, nor to render
the Landlord liable in damages, nor release Tenant from prompt fulfillment
of any of its covenants under this Lease. To the extent within its
reasonable control, Landlord shall use good faith, commercially reasonable
efforts to promptly restore any such service which is suspended,
curtailed, stopped or interrupted.
7.5 UTILITIES. (a) Electric service and consumption for the entire Property
---------
(inclusive of the Premises, interior and exterior common areas, parking
lots and all other vacant and occupied space in the Building) is
presently metered by one main electric meter (the "House Meter"). The
House Meter also measures electrical useage and consumption necessary to
provide heating, ventillation and air conditioning to the entire Building
Rentable Area(occupied and unoccupied) and all common areas of the
Building. Due to logistical and economic reasons, Landlord and Tenant
have agreed to have the costs of electric service and consumption for the
entire Property continue to be measured by and passed through the House
Meter and the costs of such electrical service and consumption shall be
allocated and paid in the manner hereafter specified.
Until such time as Tenant is in occupancy of the entire Building Rentable
Area, the House Meter shall be in Landlord's name and Tenant shall (as an
additional charge under the Lease) reimburse Landlord monthly, within
thirty days after receipt of an invoice from Landlord, for "Tenant's
Proportionate Share" of the "Electric Charge" (as each of said terms is
hereafter defined) based on the actual costs and expenses billed to
Landlord as measured by the House Meter. As used herein, the term
"Tenant's Proportionate Share" shall mean the percentage obtained by
dividing the Premises Rentable Area (as that amount may be adjusted
hereunder from time to time) by the number of rentable square feet of the
Building leased to tenants or occupants, including Tenant during such
period. As used herein, the term "Electric Charge" shall mean a monthly
amount equal to the monthly amount invoiced by the applicable utility for
all electrical use and consumption on the Property as measured and billed
to the House Meter less the "Landlord's Electrical Share".
As used herein, the term "Landlord's Electrical Share" shall mean a
monthly dollar amount equal to the product obtained by multiplying (i)
0.075 by (ii) the Vacant Square Footage Amount (as said term is hereafter
defined). As used herein, the term "Vacant
-25-
Square Footage Amount" shall mean the total number of rentable square
feet in the Building not leased during such period. (For example, if
during the applicable calendar month for which the Electrical Charge is
being computed, the Premises Rentable Area consisted of 30,183 rentable
square feet and no other portion of the Building was leased, the
Landlord's Electrical Share would be calculated as follows: .075 x
(39,482 -30,183) = 697.42 and, accordingly, the Electric Charge for such
month would be the total amount of the electric bill for such month less
697.42.)
At such time as the Premises Rentable Area consists of the entire
Building Rentable Area, the House Meter shall be placed in Tenant's name
and Tenant shall be responsible for all costs and expenses for
electricity used and consumed on the Property as measured by such House
Meter (Tenant shall then arrange to have all bills for electricity used
and consumed at the Property as measured by the House Meter billed
directly to and paid solely by Tenant) and there shall be no Tenant's
Proportionate Share of the Electric Charge, no Landlord's Electrical
Share nor any adjustment therefore.
Landlord shall have the same rights and remedies against Tenant for
failure to pay the Tenant's Proportionate Share of the Electric Charge as
and when due hereunder as Landlord has against Tenant for failure to pay
Basic Rent when due.
(b) Natural Gas service and consumption for the entire Property
(inclusive of the Premises, interior and exterior common areas and all
other vacant and occupied space in the Building) is presently metered by
one main gas meter (the "Gas Meter"). The Gas Meter also measures gas
useage and consumption necessary to provide heating and hot water to the
entire Building Rentable Area(occupied and unoccupied) and all common
areas of the Building. Due to logistical and economic reasons, Landlord
and Tenant have agreed to have the costs of natural gas service and
consumption for the entire Property continue to be measured by and passed
through the Gas Meter and the costs of such gas service and consumption
shall be allocated and paid in the manner hereafter specified.
Until such time as Tenant is in occupancy of the entire Building Rentable
Area, the Gas Meter shall be in Landlord's name and Tenant shall (as an
additional charge under the Lease) reimburse Landlord monthly, within
thirty (30) days after receipt of an invoice from Landlord, for "Tenant's
Proportionate Share" of
-26-
"Gas Charges" (as each of said terms is hereafter defined) based on the
actual costs and expenses billed to Landlord as measured by the Gas
Meter. As used herein, the term "Tenant's Proportionate Share" shall mean
the percentage obtained by dividing the Premises Rentable Area (as that
amount may be adjusted hereunder from time to time) by the number of
rentable square feet of the Building leased to tenants or occupants,
including Tenant, during such period. As used herein, the term "Gas
Charges" shall mean a monthly amount equal to the monthly amount invoiced
by the applicable utility for all natural gas use and consumption on the
Property as measured and billed to the Gas Meter less the "Landlord's Gas
Share". As used herein, the term "Landlord's Gas Share" shall mean a
monthly dollar amount equal to the product obtained by multiplying (i)
0.0383 by (ii) the Vacant Square Footage Amount (as said term is defined
in Section 7.5(a)). For example, if during the applicable calendar month
for which the Gas Charges are being computed, the Premises Rentable Area
consisted of 30,183 rentable square feet and no other portion of the
Building was leased, the Landlord's Gas Share would be calculated as
follows: 0.0383 x (39,482 -30,183) = 356.15 and, accordingly, the Gas
Charges for such month would be the total amount of the gas bill for such
month less 356.15.
At such time as the Premises Rentable Area consists of the entire
Building Rentable Area, the Gas Meter shall be placed in Tenant's name
and Tenant shall be responsible for all costs and expenses for gas used
and consumed on the Property as measured by such Gas Meter (Tenant shall
then arrange to have all bills for gas used and consumed at the Property
as measured by the Gas Meter billed directly to and paid solely by
Tenant) and there shall be no Tenant's Proportionate Share of the Gas
Charge, no Landlord's Gas Share nor any adjustment therefore.
Landlord shall have the same rights and remedies against Tenant for
failure to pay the Tenant's Proportionate Share of the Gas Charge as and
when due hereunder as Landlord has against Tenant for failure to pay
Basic Rent when due.
7.6 INTERRUPTION OF ESSENTIAL SERVICES. Notwithstanding anything
----------------------------------
contained in this Lease (including Exhibit E) to the contrary, if (a) an
interruption or curtailment, suspension or stoppage of an Essential
Service (as said term is hereinafter defined) shall occur (any such
interruption of an Essential Service being hereinafter referred to as a
"Service Interruption"), and (b) such Service Interruption occurs or
continues as a result of the negligence or a wrongful conduct of the
Landlord or
-27-
Landlord's agents, servants, employees or contractors, and (c) such
Service Interruption continues for more than Seven (7) Business Days after
Landlord shall have received notice thereof from Tenant and (d) as a
result of such Service Interruption, the conduct of Tenant's normal
operations in the Premises are materially and adversely affected, then
there shall be an abatement of one day's Basic Rent and Escalation Charges
for each day during which such Service Interruption continues (beginning
with or relating back to the first day of such Service Interruption);
provided, further, however, that if any part of the Premises is reasonably
useable for Tenant's normal business operations or if Tenant conducts all
or any part of its operations in and portion of the Premises
notwithstanding such Service Interruption, then the amount of each daily
abatement of Basic Rent and Escalation Charges shall only be proportionate
to the nature and extent of the interruption of Tenant's normal
operations. The rights granted under this paragraph shall be personal to
the original Tenant and shall terminate upon any assignment of the Lease
or any subletting of all or any portion of the Premises outstanding at any
one time. For purposes hereof, the term "Essential Services" shall mean
the following services: access to the Premises, heating, air-conditioning,
water, sewer service and electricity, but only to the extent that Landlord
has an obligation to provide same to Tenant under this Lease. Any
abatement of Basic Rent and Escalation Charges under this paragraph shall
apply only with respect to Basic Rent allocable to the period after each
of the conditions set forth in subsections (a) through (d) hereof shall
have been satisfied and only during such times as each of such conditions
shall exist.
7.7 DEFAULT BY LANDLORD REGARDING HVAC SERVICES.
--------------------------------------------
(a) If (i) Landlord shall fail to perform any of Landlord's repair
obligations under Section 7.1 of this Lease with respect to the Heating,
Ventilating and Cooling ("HVAC") System servicing the Premises, (ii)
Tenant's use and enjoyment of the Premises are materially and adversely
affected as a result of such failure, and (iii) if Landlord shall fail to
perform, cure or commence to perform such repair obligation within 48
hours after Landlord's receipt of written notice from Tenant (by fax or
in-hand delivery) of the repair in question and, in reasonable detail, the
proposed remedial action and the estimated cost of performance thereof
then, subject to the terms and provisions hereafter set forth, Tenant
shall have the right to perform such repairs. Tenant shall invoice
Landlord for the fair, reasonable and competitive cost of such remedial
action, which costs shall be payable by Landlord to Tenant within thirty
(30) days after invoice. (Tenant shall provide Landlord with reasonable
documentation and evidence of the amounts so expended by
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Tenant in the form of copies of actual vendor invoices for such work). In
no event shall Tenant be entitled to perform any such repairs in the event
that Landlord has commenced to cure and is diligently prosecuting the same
to completion prior to Tenant commencing to cure the same.
(b) Tenant will in no event be entitled to any such exercise of self-
help rights if the cause of any failure of Landlord to act is the result
of any act or omission of Tenant or any employee, agent, invitee or
contractor of Tenant.
(c) The rights granted to Tenant in this Section 7.7 shall be Tenant's
sole exclusive right and remedy against Landlord both at law and in equity
for Landlord's failure to perform Landlord's repair obligations as to the
HVAC System serving the Premises under this Article VII.
(d) The costs and expenses incurred by Landlord in connection with
reimbursing Tenant pursuant to this Section 7.7 shall be deemed Operating
Expenses pursuant to Exhibit E hereof but only to the extent includable in
Operating Expenses pursuant to Exhibit E had Landlord (rather than Tenant)
performed such work.
ARTICLE VIII
------------
REAL ESTATE TAXES
-----------------
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of
-----------------------------------------
this Article, the term "Tax Year" shall mean the twelve-month period
commencing on the July 1 immediately preceding the Commencement Date and
each twelve-month period thereafter commencing during the Term of this
Lease; and the term "Taxes" shall mean real estate taxes assessed with
respect to the Property for any Tax Year together with any and all
betterment assessments, whether general or special assessed against the
Property (regardless of when assessed). Taxes shall not include
inheritance taxes, estate taxes, transfer taxes, net income taxes nor
capital stock taxes of Landlord.
(b) In the event that, for any reason, Taxes shall be greater during any
Tax Year than Base Taxes, Tenant shall pay to Landlord, as an Escalation
Charge, an amount equal to (i) the excess of Taxes over Base Taxes,
multiplied by (ii) the Escalation Factor, such amount to be apportioned
for any fraction of a Tax Year in which the Commencement Date falls or the
Term of this Lease ends. Tenant's payment obligations under this Article
VIII shall begin with the Fiscal Tax Year beginning on July 1, 1996.
(c) Estimated payments by Tenant on account of Taxes shall be made monthly
and at the time and in the fashion herein
-29-
provided for the payment of Basic Rent. The monthly amount so to be paid
to Landlord shall be sufficient to provide Landlord by the time real
estate tax payments are due a sum equal to Tenant's required payments, as
estimated by Landlord from time to time, on account of Taxes for the then
current Tax Year. Promptly after receipt by Landlord of bills for such
Taxes, Landlord shall advise Tenant of the amount thereof and the
computation of Tenant's payment on account thereof (accompanied by a copy
of the applicable tax bills). If estimated payments theretofore made by
Tenant for the Tax Year covered by such bills exceed the required payments
on account thereof for such Year, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant on account of Taxes
(or refund such overpayment if the Term of this Lease has ended and Tenant
has no further obligation to Landlord); but if the required payments on
account thereof for such Year are greater than estimated payments
theretofore made on account thereof for such Year, Tenant shall make
payment to Landlord within 30 days after being so advised by Landlord.
Landlord shall have the same rights and remedies for the non-payment by
Tenant of any payments due on account of Taxes as Landlord has hereunder
for the failure of Tenant to pay Basic Rent.
8.2 ABATEMENT. If Landlord shall receive any tax refund or reimbursement
----------
of Taxes or sum in lieu thereof with respect to any Tax Year which is not
due to vacancies in the Building, then out of any balance remaining
thereof after deducting Landlord's expenses reasonably incurred in
obtaining such refund, Landlord shall pay to Tenant, provided there does
not then exist a Default of Tenant, an amount equal to such refund or
reimbursement or sum in lieu thereof (exclusive of any interest)
multiplied by the Escalation Factor; provided, that in no event shall
Tenant be entitled to receive more than the payments made by Tenant on
account of real estate tax increases for such Year pursuant to paragraph
(b) of Section 8.1 or to receive any payments or abatement of Basic Rent
if Taxes for any Year are less than Base Taxes or Base Taxes are abated.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall replace
----------------
the current method of assessment of real estate taxes in whole or in part,
or the type thereof, or if additional types of taxes are imposed upon the
Property or Landlord relating to the Property, Tenant agrees that Tenant
shall pay a proportionate share of the same as an additional charge
computed in a fashion consistent with the method of computation herein
provided, to the end that Tenant's share thereof shall be, to the maximum
extent practicable, comparable to that which Tenant would bear under the
foregoing provisions.
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(b) If a tax (other than Federal or State net income tax) is assessed on
account of the rents or other charges payable by Tenant to Landlord under
this Lease, Tenant agrees to pay the same as an additional charge within
ten (10) days after billing therefor, unless applicable law prohibits the
payment of such tax by Tenant.
ARTICLE IX
----------
OPERATING EXPENSES
------------------
9.1 DEFINITIONS. For the purposes of this Article, the following terms
------------
shall have the following respective meanings:
(i) Operating Year: Each calendar year in which any part of the Term
of this Lease shall fall.
(ii) Operating Expenses: The aggregate costs or expenses reasonably
incurred by Landlord with respect to the operation, administration,
repair, maintenance and management of the Property (but specifically
excluding Utility Expenses) all as set forth in Exhibit E annexed hereto,
provided that, if during any portion of the Operating Year for which
Operating Expenses are being computed, less than all of Building Rentable
Area was occupied by tenants or if Landlord is not supplying all tenants
with the services being supplied hereunder, actual Operating Expenses
incurred shall be reasonably extrapolated by Landlord on an item by item
basis to the estimated Operating Expenses that would have been incurred if
the Building were fully occupied for such entire Operating Year and such
services were being supplied to all tenants, and such extrapolated amount
shall, for the purposes hereof, be deemed to be the Operating Expenses for
such Year.
(iii) Utility Expenses: The aggregate costs or expenses incurred by
Landlord with respect to supplying water and sewer to the Property and
not paid for directly by tenants, provided that, if during any portion of
the Operating Year for which Utility Expenses are being computed, less
than all of the Building Rentable Area was occupied by tenants or if
Landlord is not supplying all tenants with the utilities being supplied
hereunder, actual Utility Expenses incurred shall be reasonably
extrapolated by Landlord on an item-by-item basis to the estimated
Utility Expenses that would have been incurred if the Building were fully
occupied for such Year and such utilities were being supplied to all
tenants, and such extrapolated amount shall, for the purposes hereof, be
deemed to be the Utility Expenses for such Operating Year. It is agreed
and understood that
-31-
only water and sewer charges and not the costs of electricity and natural
gas described in Section 7.5(a) and (b) hereof shall be included in
Utility Expenses.
9.2 TENANT'S PAYMENTS. (a) In the event that for any Operating Year
------------------
Operating Expenses shall exceed Base Operating Expenses, Tenant shall pay
to Landlord, as an Escalation Charge, an amount equal to (i) such excess
Operating Expenses multiplied by (ii) the Escalation Factor, such amount
to be apportioned for any partial Operating Year in which the Term of this
Lease ends.
(b) Tenant shall pay to Landlord, as an Escalation Charge, an amount equal
to (i) Utility Expenses (as defined in 9.1(iii)) multiplied by (ii) the
Escalation Factor, such amount to be apportioned for any partial Operating
Year in which the Commencement Date falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of Operating Expenses and
Utility Expenses shall be made monthly and at the time and in the fashion
herein provided for the payment of Basic Rent. The monthly amount so to be
paid to Landlord shall be sufficient to provide Landlord by the end of
each Operating Year a sum equal to Tenant's required payments, as
estimated by Landlord from time to time during each Operating Year, on
account of Operating Expenses and Utility Expenses for such Operating
Year. After the end of each Operating Year, Landlord shall submit to
Tenant a reasonably detailed accounting of Operating Expenses and Utility
Expenses for such Operating Year, and Landlord shall certify to the
accuracy thereof. If estimated payments theretofore made for such
Operating Year by Tenant exceed Tenant's required payment on account
thereof for such Operating Year, according to such statement, Landlord
shall credit the amount of overpayment against subsequent obligations of
Tenant with respect to Operating Expenses and Utility Expenses (or refund
such overpayment if the Term of this Lease has ended and Tenant has no
further obligation to Landlord), but, if the required payments on account
thereof for such Operating Year are greater than the estimated payments
(if any) theretofore made on account thereof for such Operating Year,
Tenant shall make payment to Landlord within thirty (30) days after being
so advised by Landlord. Landlord shall have the same rights and remedies
for the nonpayment by Tenant of any payments due on account of Operating
Expenses and Utility Expenses as Landlord has hereunder for the failure of
Tenant to pay Basic Rent.
ARTICLE X
---------
INDEMNITY AND PUBLIC LIABILITY INSURANCE
----------------------------------------
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10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be
-------------------
made effective according to law, Tenant agrees to defend, indemnify and
save harmless Landlord from and against all claims, loss, liability, costs
and damages of whatever nature arising from any default by Tenant under
this Lease and the following: (i) from any accident, injury, death or
damage whatsoever to any person, or to the property of any person,
occurring in or about the Premises; (ii) from any accident, injury, death
or damage occurring outside of the Premises but on the Property, 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, invitees or independent contractors; or (iii) in connection
with the conduct or management of the Premises or of any business therein,
or any thing or work whatsoever done, or any condition created in or about
the Premises; and, in any case, occurring after the date of this Lease,
until the end of the Term of this Lease, and thereafter so long as Tenant
is in occupancy of the Premises. 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, including, without
limitation, reasonable attorneys' fees and costs at both the trial and
appellate levels. The provisions of this Section 10.1 shall survive the
expiration or any earlier termination of this Lease. Nothing contained in
this Section 10.1 shall require Tenant to indemnify Landlord from the
negligence of Landlord or the negligence of Landlord's agents, servants,
employees or contractors.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force
---------------------------
from the date upon which Tenant first enters the Premises for any reason,
throughout the Term of this Lease, and thereafter so long as Tenant is in
occupancy of any part of the Premises, a policy of general liability and
property damage insurance (including broad form contractual liability,
independent contractor's hazard and completed operations coverage) under
which Landlord, Manager (and such other persons as are in privity of
estate with Landlord as may be set out in notice from time to time) and
Tenant are named as insureds, and under which the insurer agrees to
defend, indemnify and hold Landlord, Manager, and those in privity of
estate with Landlord, harmless from and against all cost, expense and/or
liability arising out of or based upon any and all claims, accidents,
injuries and damages set forth in Section 10.1. Each such policy shall be
non-cancellable and non-amendable with respect to Landlord, Manager and
Landlord's said designees without thirty (30) days' prior notice to
Landlord and shall be in at least the amounts of the Initial Public
Liability Insurance specified in Section 1.3 or such greater amounts as a
mortgagee of the Property
-33-
shall from time to time reasonably request in connection with the placing
of new financing on the Property (but in no event shall such mortgagee
have the right to require more than 150% of the then existing coverages
hereunder) and a certificate thereof shall be delivered to Landlord.
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 Property as Tenant is herein given
the right to use at Tenant's own risk; and except for Landlord's
obligation to repair physical damage to the physical condition of the
Premises caused by Landlord's negligent acts or omissions in performing
Landlord's repair obligations as provided in Section 7.1, Landlord shall
have no responsibility or liability for any loss of or damage to Tenant's
Removable Property or for any inconvenience, annoyance, interruption or
injury to business arising from Landlord's making any repairs or changes
which Landlord is permitted by this Lease or required by law to make in
or to any portion of the Premises or other sections of the Property, or
in or to the fixtures, equipment or appurtenances thereof. Tenant shall
carry "all-risk" property insurance on a "replacement cost" basis
(including so-called improvements and betterments), and provide a waiver
of subrogation as required in Section 14.20. The provisions of this
Section 10.3 shall be applicable from and after the execution of this
Lease and until the end of the Term of this Lease, 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 Property or otherwise. The provisions of this Section
10.4 shall survive the expiration or any earlier termination of this
Lease.
10.5 LANDLORD'S INSURANCE. Landlord shall maintain and keep in effect
--------------------
throughout the term of this Lease (a) insurance against loss or damage to
the Building by fire or other casualty as may be included within either
fire and extended coverage insurance or "all-risk" insurance in an amount
equal to the full replacement cost of the Building (exclusive of
foundations) and (b) comprehensive general liability insurance in amounts
reasonably determined by Landlord. Such coverage may be effected
directly and/or through the use of blanket insurance coverage covering
more than one location and may contain such reasonable deductibles as
Landlord may elect.
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ARTICLE XI
----------
LANDLORD'S ACCESS TO PREMISES
-----------------------------
11.1 LANDLORD'S RIGHTS. Landlord shall have the right, upon reasonable
------------------
advance written or oral notice to Tenant (except in the case of emergency
when no notice shall be necessary), to enter the Premises at all
reasonable hours for the purpose of inspecting or making repairs to the
same, and Landlord shall also have the right to make access available at
all reasonable hours and upon advance oral or written notice to Tenant to
prospective or existing mortgagees, purchasers or tenants of any part of
the Property and, during the last nine (9) months of the Term of the Lease
to enter the Premises in order to show the Premises to prospective
tenants. In exercising its rights pursuant to this Section 11.1, Landlord
shall use good faith, commercially reasonable efforts to avoid unnecessary
interference with Tenant's use of the Premises.
ARTICLE XII
-----------
FIRE, EMINENT DOMAIN, ETC.
--------------------------
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
------------------
casualty, Basic Rent, Escalation Charges, Tenant's Proportionate Share of
the Electric Charges and Tenant's Proportionate Share of Gas Charges
payable by Tenant shall abate proportionately for the period in which, by
reason of such damage, there is substantial interference with Tenant's use
of the Premises, having regard to the extent to which Tenant may be
required to discontinue Tenant's use of all or a portion of the Premises,
but such abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises (excluding any alterations, additions
or improvements made by Tenant pursuant to Section 5.2) to the condition
in which they were prior to such damage. If the Premises shall be affected
by any exercise of the power of eminent domain, Basic Rent, Escalation
Charges, Tenant's Proportionate Share of the Electric Charges and Tenant's
Proportionate Share of Gas Charges payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the
loss of use of the Premises suffered by Tenant. In no event shall Landlord
have any liability for damages to Tenant for inconvenience, annoyance, or
interruption of business arising from such fire, casualty or eminent
domain.
-35-
12.2 RIGHT OF TERMINATION. If the Premises or the Building are damaged
---------------------
by fire or casualty, Landlord shall cause an independent contractor
selected by it to make a written estimate (the "Estimate") of the amount
of time normally required in the ordinary course to perform and
substantially complete the restoration of the damage in question, and a
copy of the Estimate shall be furnished to both Landlord and Tenant within
sixty (60) days after the applicable casualty. If (a) the Premises or the
Building are substantially damaged by fire or casualty (the term
"substantially damaged" meaning damage of such a character that the same
cannot, as set forth in the Estimate, reasonably be expected to be
repaired within sixty (60) days from the time the repair work would
commence), or (b) any Mortgagee then holding a Mortgage on the Property or
any interest of Landlord therein, should require that insurance proceeds
payable as a result of a fire, casualty or action by taking authority be
applied to the Mortgage debt or (c) if any part of the Building is taken
by any exercise of the right of eminent domain, then, in the case of (a),
(b), or (c) above, Landlord shall have the right to terminate this Lease
(even if Landlord's entire interest in the Premises may have been
divested) by giving notice of Landlord's election so to do within (i)
thirty (30) days after Landlord's receipt of the Estimate in the case of a
fire or casualty or (ii) 60 days after the effective date of the action
described in (b) or (c) above, whereupon this Lease shall terminate thirty
(30) days after the date of such notice with the same force and effect as
if such date were the date originally established as the expiration date
hereof.
12.3 RESTORATION; TENANT'S RIGHT OF TERMINATION. (a) If this Lease shall
-------------------------------------------
not be terminated pursuant to Section 12.2 and if the amount of time
normally required to perform and substantially complete such restoration
in the ordinary course as set forth in the Estimate exceeds One Hundred
Eighty (180) days from the date of the casualty, then Tenant shall have
the right to terminate this Lease effective as of the date of Tenant's
Termination Notice, such right to be exercised, if at all, by written
notice (a "Tenant's Termination Notice") to Landlord within twenty (20)
days after receipt of the Estimate. Failure of Tenant to exercise such
right within the time and manner herein provided shall constitute a waiver
of such right by Tenant, time being of the essence. Any termination of
this Lease by Tenant pursuant to this Section 12.3(a) shall have the same
force and effect as if such date were the date originally established as
the date of expiration of the Lease.
(b) If the Premises is damaged by fire or casualty or as a result of a
taking and if this Lease shall not be terminated pursuant to Section 12.2
or 12.3(a), Landlord shall thereafter use due diligence to restore the
Premises
-36-
to substantially its condition prior to such fire or casualty, as
described in Section 12.1. Landlord's obligation to restore shall be
limited to the amount of insurance proceeds actually made available to the
Landlord for the purpose of restoration or the condemnation awards
actually made available to Landlord therefor and provided, further, that
Landlord shall have no obligation to restore the Premises or the Building
as and to the extent the same cannot be lawfully restored under then
applicable zoning and building laws. If, for any reason, restoration of
the Premises to the condition required hereby shall not be substantially
completed as aforesaid within the One Hundred Eighty (180) day period set
forth in 12.3(a) hereof (which One Hundred Eighty (180) day period shall
be extended due to Force Majeure or any reason beyond the control of
Landlord, but in no event for more than an additional Twenty (20) days),
Tenant shall have the right to terminate this Lease by giving notice to
Landlord thereof within Thirty (30) days after the expiration of such
period (as so extended). Upon the giving of such notice, this Lease shall,
effective as of the date of giving such notice, cease and come to an end
without further liability or obligation on the part of either party.
If at any time Landlord shall determine that the proceeds of insurance
or condemnation awards to be available to Landlord for restoration are
insufficient for restoration of the Building, Landlord shall provide
Tenant written notice of such insufficiency and upon receipt of such
notice, Tenant shall have the right to terminate this Lease by written
notice to Landlord not later than fifteen (15) days after Tenant's receipt
of such written notice from Landlord, time being of the essence. Such
rights of termination set forth in this Section 12.3 shall be Tenant's
sole and exclusive remedy at law or in equity for Landlord's failure to
complete such restoration.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and
------
Tenant hereby grants and assigns to Landlord, all rights to recover for
damages to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction 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, at its sole cost and
expense, prosecuting a separate condemnation proceeding with respect to a
claim for the value of any of Tenant's Removable Property 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 XIII
------------
DEFAULT
-------
13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this
-----------------
Lease any one or more of the following events (herein referred to as a
"Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation Charges,
Tenant's Proportionate Share of the Electric Charges, Tenant's
Proportionate Share of Gas Charges or other sums payable as additional
charges hereunder when due and such failure shall continue for more than
five (5) days after written notice thereof from Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or observed,
or Tenant shall desert or abandon the Premises or the Premises shall
become abandoned (regardless whether the keys shall have been surrendered
or the rent and all other sums due shall have been paid), and Tenant
shall fail to remedy the same within thirty (30) days after written
notice to Tenant specifying such neglect or failure, or if such failure
is of such a nature that Tenant cannot reasonably remedy the same within
such thirty (30) day period, Tenant shall fail to commence promptly to
remedy the same and to prosecute such remedy to completion with diligence
and continuity; or
(iii) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition in bankruptcy or shall be adjudicated
bankrupt or insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future
Federal, State or other statute, law or regulation for the relief of
debtors, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit in writing its
inability to pay its debts generally as they become due; or
(v) A petition shall be filed against Tenant in bankruptcy or under
any other law seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any
-38-
present or future Federal, State or other statute, law or regulation and
shall remain undismissed or unstayed for an aggregate of sixty (60) days
(whether or not consecutive), or if any debtor in possession (whether or
not Tenant) trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties or of the Premises shall be appointed
without the consent or acquiescence of Tenant and such appointment shall
remain unvacated or unstayed for an aggregate of sixty (60) days (whether
or not consecutive); or
(vi) If a default of the kind set forth in clauses (i) or (ii) above
shall occur and if either (a) Tenant shall cure such default within the
applicable grace period or (b) Landlord shall, in its sole discretion ,
permit Tenant to cure such default after the applicable grace period has
expired, and an event which would constitute a similar default if not
cured within the applicable grace period shall occur more than twice
within the next 365 days, whether or not such event is cured within the
applicable grace period;
then in any such case (1) if such Default of Tenant shall occur prior to
the Commencement Date, this Lease shall ipso facto, and without further
---- -----
act on the part of Landlord, terminate, and (2) if such Default of Tenant
shall occur after the Commencement Date, Landlord may terminate this Lease
by notice to Tenant, and thereupon this Lease shall come to an end as
fully and completely as if such date were the date herein originally fixed
for the expiration of the Term of this Lease, and Tenant will then quit
and surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
(b) If this Lease shall be terminated as provided in this Article, or if
any execution or attachment shall be issued against Tenant or any of
Tenant's property and such matter is not discharged within thirty (30)
days whereupon the Premises shall be taken or occupied by someone other
than Tenant, then Landlord may, without notice, re-enter the Premises,
either by force, summary proceedings, ejectment or otherwise, and remove
and dispossess Tenant and all other persons and any and all property from
the same, as if this Lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal
proceedings to that end.
(c) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges, Tenant's Proportionate Share of Electric Charges, Gas
Charges and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what would have been
the Term of this Lease in the absence of such termination, and whether or
not the Premises shall have been relet, shall be liable to Landlord for,
and shall pay to
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Landlord, as liquidated current damages, the Basic Rent, Escalation
Charges, Tenant's Proportionate Share of the Electric Charges, Tenant's
Proportionate Share of Gas Charges and other sums which would be payable
hereunder if such termination had not occurred, less the net proceeds, if
any, of any reletting of the Premises, after deducting all reasonable
expenses in connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, legal expenses, attorneys'
fees, advertising, expenses of employees, alteration costs and expenses of
preparation for such reletting. Tenant shall pay such current damages to
Landlord monthly on the days which the Basic Rent would have been payable
hereunder if this Lease had not been terminated. Landlord shall use good
faith, commercially reasonable efforts to mitigate its damages sustained
as a result of a termination of this Lease due to a Default of Tenant.
(d) At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in
lieu of all such current damages beyond the date of such demand, at
Landlord's election Tenant shall pay to Landlord an amount equal to the
excess (discounted to present value), if any, of the Basic Rent,
Escalation Charges, Tenant's Proportionate Share of the Electric Charges,
Tenant's Proportionate Share of Gas Charges and other sums as hereinbefore
provided which would be payable hereunder from the date of such demand
(assuming that, for the purposes of this paragraph, annual payments by
Tenant on account of Taxes, Utility Expenses, Tenant's Proportionate Share
of the Electric Charges, Tenant's Proportionate Share of Gas Charges and
Operating Expenses would be the same as the payments required for the
immediately preceding Operating or Tax Year) for what would be the then
unexpired Term of this Lease if the same had remained in effect, over the
then fair net rental value of the Premises for the same period.
(e) In the case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceeding or otherwise, Landlord may (i) re-let
the Premises or any part or parts thereof, either in the name of Landlord
or otherwise, for a term or terms which may at Landlord's option be equal
to or less than or exceed the period which would otherwise have
constituted the balance of the Term of this Lease and may grant
concessions or free rent to the extent that Landlord considers advisable
and necessary (provided that such concessions are commercially reasonable
given then current market conditions) to re-let the same and (ii) may make
such reasonable alterations, repairs and decorations in the Premises as
Landlord in its sole judgment considers advisable and necessary for the
purpose of reletting the Premises; and the making of such alterations,
repairs and decorations shall not operate or
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be construed to release Tenant from liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatsoever for failure to
re-let the Premises, or, in the event that the Premises are re-let, for
failure to collect the rent under such re-letting. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed, or in
the event of Landlord obtaining possession of the Premises, by reason of
the violation by Tenant of any of the covenants and conditions of this
Lease.
(f) Intentionally Omitted.
(g) The specified remedies to which Landlord may resort hereunder are not
intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled to lawfully, and Landlord may invoke
any remedy (including the remedy of specific performance) allowed at law
or in equity as if specific remedies were not herein provided for.
(h) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses) in enforcing
its rights hereunder or occasioned by any Default of Tenant shall be paid
by Tenant.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default of the
-------------------
performance of any of Landlord's obligations hereunder unless and until
(i) Landlord shall have unreasonably failed to commence to perform such
obligation within a period of time reasonably required to commence to
correct any such default (but in no event later than thirty (30) days),
after notice by Tenant to Landlord specifying wherein Landlord has failed
to perform any such obligations or (ii) if timely commenced, Landlord
shall thereafter promptly fail to diligently prosecute such cure to
completion.
ARTICLE XIV
-----------
MISCELLANEOUS PROVISIONS
------------------------
14.1 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
property or liability insurance on the Premises or of the Building above
the standard rate applicable to premises being occupied for Permitted
Uses; and Tenant further agrees that, in the event that Tenant shall do
any of the foregoing, Tenant will promptly pay to Landlord, on
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demand, any such increase resulting therefrom, which shall be due and
payable as an additional charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of
-------
any action or non-action 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 the other's rights 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.
(b) 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 of the earliest installment of any payment due
from Tenant under the provisions hereof. Unless expressly set forth in a
writing originated by and from Landlord to Tenant, 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.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
----------------------------
provisions of this Lease, on payment of the Basic Rent and Escalation
Charges and observing, keeping and performing all of the other 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, interruption
or ejection by any persons lawfully claiming by, through or under Landlord
to have title to the Premises superior to Tenant; the foregoing covenant
of quiet enjoyment is in lieu of any other covenant, express or implied.
14.4 LANDLORD'S LIABILITY. (a) Except as otherwise expressly provided in
---------------------
Section 14.17 and Section 14.26(c) hereof, Tenant specifically agrees to
look solely to Landlord's then equity interest in the Property at the time
owned, for recovery of any judgment from Landlord; it being specifically
agreed that Landlord (original or successor) shall never be personally
liable for any such 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
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might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or to take any action not involving the
personal liability of Landlord (original or successor) to respond in
monetary damages from Landlord's assets other than Landlord's equity
interest in the Property.
(b) Except as otherwise expressly set forth in this Lease, with respect to
any services or utilities to be furnished by Landlord to Tenant, Landlord
shall in no event be liable for failure to furnish the same when prevented
from doing so by Force Majeure, 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
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 or any person claiming
by, through or under Tenant; nor shall any such failure give rise to any
claim in Tenant's favor that Tenant has been evicted, either
constructively or actually, partially or wholly.
(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by Tenant
from whatever cause.
(d) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same may be made during normal
business hours and Landlord shall have no liability for damages to Tenant
for inconvenience, annoyance or interruption of business arising
therefrom.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from
-------------------------------------
any person, firm or other entity that it holds a mortgage or a ground
lease which includes the Premises, no notice from Tenant to Landlord
alleging any default by Landlord shall be effective unless and until a
copy of the same is given to such holder or ground lessor (provided Tenant
shall have been furnished with the name and address of 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.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. 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 on property which includes the Premises,
Tenant agrees that the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage, shall never be treated as an
assumption by such holder of any of the obligations of Landlord hereunder
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unless such holder shall, by notice sent to Tenant, specifically otherwise
elect and that, except as aforesaid, such holder 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.
14.7 RULES AND REGULATIONS. Tenant shall abide by the Rules and
----------------------
Regulations set forth in Exhibit G and any future rules and regulations
from time to time established by Landlord, it being agreed that such rules
and regulations will be established and applied by Landlord in a non-
discriminatory fashion, such that all rules and regulations shall be
generally applicable to other tenants of the Building of similar nature to
the Tenant named herein. Landlord agrees to use reasonable efforts to
insure that any such rules and regulations are uniformly enforced, but
Landlord shall not be liable to Tenant for violation of the same by any
other tenant or occupant of the Building, or persons having business with
them. In the event that there shall be any conflict between such rules and
regulations and the provisions of this Lease, the provisions of this Lease
shall control.
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums
-------------------
under this Lease designated or payable as an additional charge, Landlord
shall have the same rights and remedies as Landlord has hereunder for
failure to pay Basic Rent.
14.9 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 be enforced to the fullest extent
permitted by Law.
14.10 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. 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 VI hereof.
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14.11 RECORDING. Tenant agrees not to record this Lease, but each party
----------
hereto agrees, on the request of the other, to execute a so-called notice
of 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.
14.12 NOTICES. Whenever, by the terms of this Lease, notices, consents or
--------
approvals shall or may be given either to Landlord or to Tenant, such
notices, consents or approvals shall be in writing and shall be sent by
registered or certified mail, return receipt requested, postage prepaid:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address with a copy Addressed to Landlord at 730 Third Avenue, New York,
New York 10017 Attention: Douglas Lawrence (or to such other address as
may from time to time hereafter by designated by Landlord by like notice).
If intended for Tenant, addressed to Tenant, Attn: Chief Financial
Officer, at Tenant's Original Address until the Commencement Date and
thereafter to the Premises with a copy to Richard B. Weitzen, Esq., Lawson
& Weitzen, 425 Summer Street, Boston, MA 02210 (or to such other address
or addresses as may from time to time hereafter be designated by Tenant by
like notice.)
All such notices shall be effective when deposited in the United States
Mail within the Continental United States, provided that the same are
received in ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING. 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 this Lease expressly supersedes any proposals or
other written documents relating hereto. This Lease 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.
14.14 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
-45-
explain, modify, amplify or aid in the interpretation, construction, or
meaning of the provisions of this Lease.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be
-------------------------------------
subordinate to any mortgage or ground lease from time to time encumbering
the Premises, whether executed and delivered prior to or subsequent to the
date of this Lease, if the holder of such mortgage or ground lease shall
so elect. If this Lease is subordinate to any mortgage or ground lease and
the holder thereof (or successor) shall succeed to the interest of
Landlord, at the election of such holder (or successor) Tenant shall
attorn to such holder and this Lease shall continue in full force and
effect between such holder (or successor) and Tenant. Tenant agrees to
execute such instruments of subordination or attornment in confirmation of
the foregoing agreement as such holder may request.
Notwithstanding anything to the contrary contained in this Section
14.15, Tenant shall not be required to subordinate this Lease to any
mortgage or to the lien of any mortgage or sale and leaseback, nor shall
the subordination provided herein be self-operative unless the holder of
such mortgage or ground lease, as the case may be, shall enter into an
agreement with Tenant, recordable in form, to the effect that in the
event of foreclosure of, or similar action taken under, such mortgage or
ground lease, this Lease shall not be terminated or Tenant's occupancy
disturbed by such mortgageholder or ground lessor or anyone claiming under
such mortgageholder or ground lessor, as the case may be, so long as
Tenant shall not be in default under this Lease. The form of any such
agreement shall be the form as reasonably required by any such mortgagee
or ground lessor.
14.16 STATUS REPORT. Recognizing that both parties may find it necessary
--------------
to establish to third parties, such as accountants, banks, mortgagees,
ground lessors, 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 or
ground lease 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, acknowledgment that (or the extent to which) each
party is in compliance with its obligations under the terms of this Lease.
14.17 SECURITY DEPOSIT. Concurrently with the execution and delivery of
-----------------
this Lease, Tenant shall deposit 1/3 of the Security Deposit specified in
Section 1.2 hereof with Landlord. Not later than the date which is ten
(10) days after the date Landlord shall advise Tenant that the Landlord's
Work is 50% complete, Tenant shall deposit an additional 1/3 of the
Security Deposit with Landlord. The
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remaining 1/3 of the Security Deposit shall be deposited with Landlord on
the date that Tenant shall occupy the Premises and as a condition to
Tenant's occupancy of the Premises for the conduct of its business
notwithstanding that the Commencement Date as defined in Article IV
hereof may have occurred. Landlord shall have the same rights and
remedies against Tenant for Tenant's failure to timely deposit any
installment of the Security Deposit with Landlord as Landlord has against
Tenant for failure to pay Basic Rent when due. 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 hereunder. 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, or to cure, any Default of
Tenant. If Landlord shall so apply any or all of such deposit, Tenant
shall immediately deposit with Landlord the amount so applied to be held
as security hereunder. There then existing no Default of Tenant, Landlord
shall return the deposit, or so much thereof as shall theretofore not
been applied in accordance with the terms of this Section 14.17, to
Tenant on the expiration or earlier termination of the Term of this Lease
and surrender of possession of the Premises by Tenant to Landlord at such
time. Landlord shall deposit the Security Deposit in a separate federally
insured savings account with a bank or financial institution selected by
Landlord. All interest accrued in such account less a 1% administrative
fee payable to Landlord shall be paid to Tenant at the end of each Lease
Year upon the written request of Tenant. The one percent fee shall be
earned, paid to and retained by Landlord on an annual basis.
If Landlord conveys Landlord's interest under this Lease, the deposit,
or any part thereof not previously applied, may 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 14.17, and the return thereof
in accordance therewith. To the extent that the deposit or any part
thereof not previously applied, has not been turned over by Landlord to
Landlord's grantee or successor in interest, Tenant may, in addition to
any other remedies it may have at law or in equity, look to Landlord for
the proper application of the deposit in accordance with the terms of
this Section 14.17, and the return thereof in accordance therewith. The
provisions of Section 14.4(a) shall not apply to an action brought
against Landlord arising out of Landlord's failure to return the deposit
to Tenant as and when required hereunder nor to Landlord's failure to
deliver same to its grantee or successor in interest and Tenant may seek
to recover same from other assets of Landlord. The holder of
-47-
a mortgage shall not 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 hand by such holder.
The amount of the Security Deposit shall be reduced over time as follows:
(a) beginning on the date of execution and delivery of this Lease by
Tenant through the last day of the 12th full calendar month immediately
following the Commencement Date, the amount of the Security Deposit shall
be $229,000.00.
(b) During the six (6) full calendar months immediately following the
period described in (a) above, the amount of the Security Deposit shall
be in the amount of $150,000.00.
(c) For the period beginning immediately following expiration of the
Period described in (b) through the last day of the Term of the Lease,
the amount of the Security Deposit shall be $100,000.00.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
-------------------
required, to pay such sums or to do any act which requires the expenditure
of monies which may be necessary or appropriate by reason of the failure
or neglect of Tenant to perform any of the provisions of this Lease, and
in the event of the exercise of such right by Landlord, Tenant agrees to
pay to Landlord forthwith upon demand all such sums, together with
interest thereon at a rate equal to 3% over the prime rate in effect from
time to time at the First National Bank of Boston (but in no event less
than 18% per annum), as an additional charge. Any payment of Fixed Rent,
Escalation Charges or other sums payable hereunder not paid when due
shall, at the option of Landlord, bear interest at a rate equal to 3% over
the prime rate in effect from time to time at the First National Bank of
Boston (but in no event less than 18% per annum) from the due date thereof
and shall be payable forthwith on demand by Landlord, as an additional
charge.
14.19 HOLDING OVER. Any holding over by Tenant after the expiration of
-------------
the Term of this Lease shall be treated as a daily tenancy at sufferance
at a rate equal to the then fair rental value of the Premises but in no
event less than 150% of the sum of (i) Basic Rent and (ii) Escalation
Charges in effect on the expiration date plus all Tenant's Proportionate
Share of the Electric Charges and Tenant's Proportionate Share of Gas
Charges. Tenant shall also pay to Landlord all damages, direct and/or
indirect (including any loss of a tenant or rental income), sustained by
-48-
reason of any such holding over. Otherwise, such holding over shall be on
the terms and conditions set forth in this Lease as far as applicable.
14.20 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the
----------------------
following provision shall not make it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in
the locality in which the Property is located (even though extra premium
may result therefrom) Landlord and Tenant mutually agree that any property
damage insurance carried by either shall provide for the waiver by the
insurance carrier of any right of subrogation against the other, and they
further mutually agree that, with respect to any damage to property, the
loss from 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 to the extent of the insurance proceeds paid with respect thereto.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination
----------------------
of the Term of this Lease, Tenant shall peaceably quit and surrender to
Landlord the Premises in neat and clean condition and in good order,
condition and repair, together with all alterations, additions and
improvements which may have been made or installed in, on or to the
Premises prior to or during the Term of this Lease, excepting only
ordinary wear and use and damage by fire or other casualty for which,
under other provisions of this Lease, Tenant has no responsibility of
repair and restoration. Tenant shall remove all of Tenant's Removable
Property and, to the extent specified by Landlord, all alterations and
additions made by Tenant after the Commencement Date which Landlord shall
designate for removal by Tenant at the time of Landlord granting its
consent to the making or installation of the applicable alteration or
improvement; and shall repair any damage to the Premises or the Building
caused by such removal. Any Tenant's Removable Property which shall remain
in the Building or on the Premises after the expiration or termination of
the Term of this Lease shall be deemed conclusively to have been
abandoned, and either may be retained by Landlord as its property or may
be disposed of in such manner as Landlord may see fit, at Tenant's sole
cost and expense.
14.22 INTENTIONALLY OMITTED.
----------------------
14.23 INTENTIONALLY OMITTED.
----------------------
14.24 BROKERAGE. Tenant warrants and represents that Tenant has dealt
----------
with no broker in connection with the consummation of this Lease other
than Lynch, Murphy, Walsh & Partners and Cushman & Wakefield (collectively
the "Broker"), and,
-49-
in the event of any brokerage claims against Landlord predicated upon
prior dealings with Tenant, Tenant agrees to defend the same and indemnify
Landlord against any such claim (except any claim by the Broker which
shall be paid by Landlord in accordance with its arrangements with the
Broker).
14.25 SPECIAL TAXATION PROVISIONS. Landlord shall have the right at any
----------------------------
time and from time to time, to unilaterally amend the provisions of this
Lease if Landlord is advised by its Counsel that all or any portion of the
monies paid by Tenant to Landlord hereunder are, or may be deemed to be,
unrelated business income within the meaning of the United States Internal
Revenue Code, or regulation issued thereunder, and Tenant agrees that it
will execute all documents or instruments necessary to effect such
amendment or amendments, provided that no such amendment shall result in
Tenant having to pay in the aggregate more money on account of its
occupancy of the demised premises under the provisions of this Lease as so
amended and provided further, that no such amendment or amendments shall
result in Tenant receiving under the provisions of this Lease less
services than it is entitled to receive nor services of a lesser quality.
Anything contained in the foregoing provisions of this Lease (including,
without limitation, Article VI hereof) to the contrary notwithstanding,
neither Tenant nor any other person having an interest in the possession,
use, occupancy or utilization of the Premises, shall enter into any lease,
sublease, license, concession or other agreement for use, occupancy,
utilization of space in the Premises which provides for rental or other
payment for such use, occupancy or utilization of space, in whole or in
part, on the net income or profits derived by any person from the Premises
leased, used, occupied or utilized (other than an amount based on a fixed
percentage or percentage of receipts for sales) and any such recorded
lease, sublease, license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right or interest
in the possession, use, occupancy or utilization of any part of the
Premises.
14.26 HAZARDOUS MATERIALS. (a) Tenant shall not (either with or without
--------------------
negligence) cause or permit the escape, disposal, release or threat of
release of any biologically or chemically active or other Hazardous
Materials (as said term is hereafter defined) on, in, upon or under the
Property or the Premises. Tenant shall not allow the generation, storage,
use or disposal of such Hazardous Materials on the Property, nor allow to
be brought into the Property any such Hazardous Materials. Hazardous
Materials shall include, without limitation, any material or substance
which is (i) petroleum, (ii) asbestos, (iii) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control
Act, 33 U.S.C.
-50-
Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to
Section 307 of the Federal Water Pollution Control Act (33 U.S.C. Section
1317), (iv) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42
U.S.C. Section 6903), (v) defined as a "hazardous substance" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), as
amended ("CERCLA"), or (vi) defined as "oil" or a "hazardous waste", a
"hazardous substance", a "hazardous material" or a "toxic material" under
any other law, rule or regulation applicable to the Property, including,
without limitation, Chapter 21E of the Massachusetts General Laws, as
amended ("Chapter 21E"). If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any release of
Hazardous Materials, then the reasonable costs thereof shall be reimbursed
by Tenant to Landlord upon demand as additional charges but only if such
testing determines that such release or the presence of Hazardous
Materials is or was the result of the acts or omissions of Tenant. In
addition, Tenant shall execute affidavits, representations and the like,
from time to time, at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of Hazardous Materials on the
Premises. In all events, Tenant shall indemnify and save Landlord harmless
from and against any and all loss, claims, liability, costs, expenses,
reasonable attorneys fees and damages of every nature from any release or
threat of release or the presence or existence of Hazardous Materials on
the Premises occurring while Tenant is in possession, or elsewhere on the
Property if caused, in whole or in part, by Tenant or persons acting under
Tenant. The within covenants and indemnity shall survive the expiration or
earlier termination of the Term of this Lease. Landlord expressly reserves
the right to enter the Premises to perform regular inspections.
(b) Landlord agrees to indemnify and save harmless Tenant from and against
all claims, loss, liability, costs, expenses (including, without
limitation, reasonable attorneys' fees as referred to in paragraph (c) of
this Section) and damages of whatever nature arising from any release or
threat of release of the presence or existence of Hazardous Materials on
the Premises, or elsewhere on the Property, or on properties other than
the Property, if caused in whole or in part by any person or entity other
than Tenant or persons acting under Tenant ("Non-Tenant Release")
including without limitation: (i) Hazardous Waste presently existing in,
on, or under the Property; (ii) any future release or disposal, or threat
of release or disposal, of Hazardous Waste in, on or under the Property
resulting from a Non-Tenant Release; (iii) Hazardous Waste presently
existing in, on, or under properties other than the Property and which
migrate, or
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in the future migrate or may migrate, in, on, or under the Property; (iv)
any future release or disposal, or threat of release or disposal, of
Hazardous Waste in, on, or under properties other than the Property and
which migrate, or in the future migrate or may migrate, in, on, or under
the Property resulting from a Non-Tenant Release; (v) the cleanup and/or
removal of any Hazardous Waste from the Property or any other property
resulting from a Non-Tenant Release; (vi) the performance of any response
or remediation action, and any response action or remediation costs, fees,
expenses, charges, or penalties ordered, assessed, exacted, levied,
imposed, or required by the United States of America, the Commonwealth of
Massachusetts or the Town of Burlington, or any compliance with the
CERCLA, Chapter 21E, the Massachusetts Contingency Plan (310 C.M.R.
40.0000), or other federal, state or local laws, by-laws, rules or
regulations that apply to response actions, all as the same may be amended
from time to time, resulting from a Non-Tenant Release; (vii) any
administrative or judicial enforcement action brought by the United States
of America, the Commonwealth of Massachusetts or the Town of Burlington
(including, without limitation, claims regarding contamination-related
damage to natural resources) resulting from a Non-Tenant Release; and
(viii) any personal injury or property damage claims or actions brought by
third parties resulting from a Non-Tenant Release. It is agreed and
understood that except as otherwise expressly provided in this Section
(b), the provisions of Section 14.4 of this Lease shall be applicable to
all of the matters described in this Section (b).
(c) Landlord agrees to promptly reimburse Tenant for any and all
reasonable attorneys' fees and court costs (up to the aggregate amount of
Twenty-Five Thousand ($25,000.00) Dollars) incurred by Tenant in
connection with any claim or matter relating to, or in connection with,
any Non-Tenant Release including, without limitation, any of the matters
referred to in paragraph (b) of this Section. The provisions of Section
14.4(a) shall not apply with respect to any action brought by Tenant
against Landlord for reimbursement of the fees, expenses and costs
referred to in this paragraph (c).
14.27 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.
14.28 OPTION TO EXTEND. (a) Tenant shall have the right and option,
-----------------
which said option and right shall not be severed from this Lease or
separately assigned, mortgaged or transferred, to extend the Initial Term
for one (1) additional consecutive period of three (3)years (hereinafter
referred to as the "Extension Period"), provided that (a) Tenant shall
give Landlord notice of
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Tenant's exercise of such option at least thirteen (13) full calendar
months prior to the expiration of the Initial Term (b) there shall exist
no Default of Tenant arising under any of the terms and provisions of the
Lease on the part of Tenant to be performed or observed both at the time
of giving the applicable notice and the commencement of the Extension
Period (c) the original Tenant named in this Lease or any assignee of
Tenant permitted pursuant to Article VI shall be in occupancy of the
Premises both at the time of giving such notice and upon commencement of
the applicable Extension Period. Except for the amount of Basic Rent
(which is to be determined as hereinafter provided), all the terms,
covenants, conditions, provisions and agreements in the Lease contained
shall be applicable to the additional period through which the Term of
this Lease shall be extended as aforesaid, except that there shall be no
further option to extend the Term nor shall Landlord be obligated to make
or pay for any improvements to the Premises nor pay any inducement
payments or allowances of any kind or nature. If Tenant shall give notice
of its exercise of such option to extend in the manner and within the
time period provided aforesaid then, subject to the provisions of the
remainder of this Section 14.28, the Term of this Lease shall be extended
upon the giving of each such notice without the requirement of any
further attention on the part of either Landlord or Tenant. Landlord
hereby reserves the right, exercisable by Landlord in its sole
discretion, to waive (in writing) any condition precedent set forth in
clauses (a), (b) or (c) above.
If Tenant shall fail to give timely notice of the exercise of such
option as aforesaid, Tenant shall have no right to extend the Term of
this Lease, time being of the essence of the foregoing provisions. Any
termination of this Lease Agreement shall terminate the rights hereby
granted Tenant.
(b) Fair Market Value. The Basic Rent per annum payable during the
-----------------
Extension Period shall be 95% of the Fair Market Rental Value (as said
term is hereinafter defined) as of commencement of the Extension Period,
but in no event less than the Basic Rent plus Escalation Charges payable
for and with respect to the 12 month period immediately preceding the
Extension Period. "Fair Market Rental Value" shall be computed as of the
date in question at the then current annual rental charges, including
provisions for subsequent increases and other adjustments, for extensions
of existing leases then being negotiated or executed for comparable space
located in comparable buildings in Burlington, Massachusetts . In
determining Fair Market Rental Value, the following factors, among
others, shall be taken into account and given effect: size of the
premises, escalation charges then payable
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under the Lease, location of the premises, location of the building,
allowances or lack of allowances (if any) leasing concessions (if any),
age and condition of improvements and lease term. In no event shall the
Basic Rent payable with respect to the Extension Period be less than the
Basic Rent plus Escalation Charges payable during the last Year of the
Initial Term.
(c) Dispute as to Fair Market Rental Value. Landlord shall initially
--------------------------------------
designate the Fair Market Rental Value and shall furnish data in support
of such designation. If Tenant disagrees with Landlord's designation of
the Fair Market Rental Value, Tenant shall have the right, by written
notice given to Landlord within fifteen (15) days after Tenant has been
notified of Landlord's designation, to submit such Fair Market Rental
Value to arbitration as follows: Fair Market Rental Value shall be
determined by impartial arbitrators who shall be licensed real estate
appraisers who are members of the Massachusetts or American Society of
Real Estate Appraisers with at least ten (10) years of experience (a
"Qualified Appraiser"), one to be chosen by Landlord, one to be chosen by
Tenant, and a third to be selected, if necessary, as below provided. The
unanimous written decision of the two first chosen, without selection and
participation of a third arbitrator, or otherwise, the written decision
of a majority of three arbitrators chosen and selected as provided below,
shall be conclusive and binding upon Landlord and Tenant. If the
designations of all three arbitrators are different in amount, then the
Fair Market Rental Value shall be deemed to be the average of the two
designations that are the closest in amount.
Landlord and Tenant shall each notify the other of its chosen
arbitrator within ten (10) days following the call for arbitration and,
if such two arbitrators shall not have reached a unanimous decision
within twenty (20) days after their designation, they shall so notify the
then president of the Boston Bar Association and request him to select an
impartial third arbitrator, who shall be , a Qualified Appraiser to
determine Fair Market Rental Value as herein defined. The arbitrators
shall advise the parties of their determination by written notice (a
"Fair Market Value Designation") no later than the date which is ten (10)
full calendar months prior to the commencement of the Extension Period.
(d) Upon receipt of such Fair Market Value Designation, and if
Landlord and Tenant have not otherwise agreed upon the Fair Market Rental
Value Designation, then Tenant shall have the right to revoke its
exercise of the Extension Option by written notice to Landlord (an
"Option Rent Revocation") given to Landlord not later than the date which
is nine (9) full calendar months prior to expiration of the Initial Term.
Failure of Tenant to give
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Landlord an Option Rent Revocation in the time and manner herein
specified, time being of the essence shall be deemed a waiver of Tenant's
right to revoke its exercise of the applicable Option to Extend and
Tenant shall be deemed to have (i) accepted the determination of the Fair
Market Rental Value by the Arbitrators as set forth in the Fair Market
Value Designation and (ii) exercised and not revoked its option to extend
for the applicable Extension Period. If Tenant shall provide Landlord
with a timely Option Rent Revocation, Tenant shall promptly reimburse
Landlord for all costs and expenses sustained or incurred by Landlord for
the Qualified Appraisers.
14.29 AUTOMATIC EXPANSION OF PREMISES. (a) There is certain space,
--------------------------------
identified on Exhibit A as the "First Expansion Space" and the "Second
Expansion Space" (the First Expansion Space and the Second Expansion
Space are sometimes hereafter collectively referred to as the "Expansion
Space"). The Expansion Space is presently occupied by another tenant
("NEMRB"). In the event that NEMRB shall remain in occupancy of the
Expansion Space beyond October 31, 1996, Landlord, at its sole cost and
expense, shall promptly commence summary process proceedings to cause the
removal or eviction of NEMRB from the Expansion Space (and shall
thereafter diligently pursue such action to completion) upon expiration
of the Term of the NEMRB Lease. Notwithstanding anything contained in
this Section 14.29 to the contrary, in the event that NEMRB shall not
vacate the Expansion Space on or before January 31, 1997, Tenant may, at
its option, by written notice to Landlord on or before February 5, 1997
terminate the provisions of this Section 14.29 (the "NEMRB Termination
Right") and all of Landlord and Tenant's rights and obligations under
this Lease as they pertain to the Expansion Space (and only as they
pertain to the Expansion Space), which termination shall be effective as
of the date of such notice. Failure of Tenant to give Landlord such
termination notice within the time and manner herein specified shall be
deemed a waiver of Tenant's NEMRB Termination Right. Upon NEMRB vacating
the Expansion Space, Landlord shall commence Landlord's Expansion Work
(as hereafter defined) in the applicable portion(s) of the Expansion
Space.
Landlord and Tenant acknowledge and agree that their preference would
be to have Tenant occupy and to include within the Premises all of the
Expansion Space as of the Expansion Commencement Date. However, Landlord
may enter into a leasing arrangement with another tenant of an adjacent
property owned by Landlord, which tenant is known as Workgroup Solutions,
Inc. ("Workgroup") pursuant to which Workgroup would lease the Second
Expansion Space through October 31, 1997. In the event that Landlord
shall enter into a leasing arrangement for the Second Expansion Space
with Workgroup, Tenant shall first occupy
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the First Expansion Space on the First Expansion Commencement Date upon,
subject to and in accordance with the terms and provisions of Section
14.29(c) hereof and shall thereafter occupy the Second Expansion Space on
the Second Expansion Commencement Date upon, subject to and in accordance
with the provisions of Section 14.29(d) hereof. If Landlord shall not
enter into such an arrangement with Workgroup, Tenant shall occupy the
entire Expansion Space upon, subject to and in accordance with the
provisions of Section 14.29(b) hereof, all as hereafter set forth. Upon
determining whether or not Workgroup will be occupying the Second
Expansion Space as aforesaid, Landlord shall promptly provide Tenant with
written notice of its decision and arrangements with Workgroup (a
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"Workgroup Notice"), if any, as to the Second Expansion Space. In any
and all events, Landlord shall give Tenant a Workgroup Notice on or
before January 1, 1996.
For purposes of preparing, as applicable, the Expansion Cost
Statement, the First Expansion Cost Statement and the Second Expansion
Cost Statement pursuant to Section 14.29(b), 14.29(c) and 14.29(d) hereof
or any revisions thereto, Landlord shall solicit three (3) bids from each
of the major trades (two names designated by Landlord, one designated by
Tenant) and Landlord shall select and designate the lowest qualified
bidder and bid in each such trade in rendering such statements or any
modifications thereto. Landlord shall notify Tenant in advance of
soliciting bids that Tenant's designee is not a qualified bidder and the
reasons therefor.
(b) If the provisions of this Section 14.29 shall not be terminated
pursuant to Section 14.29(a) hereof and provided that Landlord shall give
Tenant a Workgroup Notice indicating that Workgroup will not be leasing
the Second Expansion Space then, Tenant shall lease the entire Expansion
Space from Landlord pursuant to this Section 14.29(b) at one time (rather
than in two phases) and effective as of the Expansion Commencement Date
(as hereafter defined), the entire Expansion Space shall be added to and
included within the "Premises" for all purposes under the Lease without
the requirement of any further attention on the part of either Landlord
or Tenant and in such case, effective as of the Expansion Commencement
Date, this Lease shall be deemed amended in the following respects (and
if requested by Landlord, Tenant shall promptly execute and deliver an
amendment to this Lease reflecting the matters herein set forth):
(i) The Premises and the Premises Rentable Area shall be deemed
amended to include the entire Expansion Space within the Premises and the
Premises and the Premises Rentable Area shall be increased by 9,299
rentable square feet included in the Expansion Space to be and consist of
a total of 39,482 rentable square feet for all purposes under this Lease;
(ii) Basic Rent per annum shall be increased by an annual amount (the
"Expansion Rent") equal to the Per Square Foot Rent Rate (as said term is
hereinafter defined) from time to time applicable multiplied by the
number of rentable square feet contained in the Expansion Space (9,299);
(iii) the Escalation Factor shall be deemed increased to be 100% for
all purposes and, accordingly, Tenant's monthly and annual payments on
account of the Escalation Charges shall be increased to reflect the
increase in the Premises by virtue of the addition of the Expansion
Space;
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(iv) The increases in Basic Rent and Escalation Charges as determined
pursuant to subparagraphs (i) through (iii) above shall become effective
on the Expansion Commencement Date.
As used herein, the terms Per Square Foot Rent Rate and Expansion Rent
shall be in the following amounts during the following periods of the
Initial Term of this Lease:
Period Per Square Foot Expansion Rent
- - --------------------------- Rent Rate ----------------------------------
---------------
Expansion Commence-ment $10.28 $95,593.72 per annum ($7,966.14
Date through June 30, 1997 per month)
July 1, 1997 through June $10.53 $97,918.47 per annum ($8,159.87
30, 1998 per month)
July 1, 1998 through June $10.78 $100,243.22 per annum ($8,353.60
30, 1999 per month)
July 1, 1999 through the $11.03 $102,567.97 per annum ($8,547.33
last day of the Initial per month)
Term
As used herein, the term "Expansion Commencement Date" shall be
the last to occur of (i) January 31, 1997 (the "Expansion Construction
Completion Date"), or (ii) the day following the date on which the
Expansion Space is "ready for occupancy" as hereafter provided.
Notwithstanding the foregoing, if Tenant's personnel shall occupy all or
any part of the Expansion Space for the conduct of its business prior to
the Expansion Commencement Date, such date shall for all purposes of this
Lease be the Expansion Commencement Date. The Tenant shall, upon demand
of the Landlord, execute a certificate confirming the Expansion
Commencement Date as it is determined in accordance with the provisions
of this Section 14.29(b)
On or before July 31, 1996, Tenant shall deliver to Landlord a
Space Plan together with certain written specifications (hereafter the
"Expansion Space Plan") depicting installations and improvements
necessary to prepare the Expansion Space for Tenant's occupancy. Upon
receipt of the Expansion Space Plan from Tenant, Landlord shall promptly
cause its architects and engineers to prepare final working drawings and
specifications
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reflecting the work and improvement shown on the Expansion Space Plan
(the "Proposed Expansion Plans"). Upon completion of such Proposed
Expansion Plans, Landlord shall submit same to Tenant for review and
approval together with a statement from Landlord (the "Expansion Cost
Statement") with respect to whether or not the costs of all work,
materials, permit fees, architectural fees and engineering fees (the
"Cost of Expansion Work") necessary to prepare such Proposed Expansion
Plans and to complete the improvements shown thereon exceed $69,747.50
(the "Expansion Allowance"). Such costs set forth in the Expansion Cost
Statement which are in excess of the Expansion Allowance (the "Expansion
OBS Costs") shall be borne by Tenant in the manner hereafter specified.
Tenant shall either approve or reject such Proposed Expansion Plans
within ten (10) days after receipt from Landlord. Tenant hereby agrees to
approve and shall not unreasonably withhold or delay its approval of such
Proposed Expansion Plans provided that they are substantially in
compliance with those matters set forth in the Expansion Space Plan.
Failure of Tenant to object to any aspect of such Proposed Expansion
Plans within the time and manner provided above shall be deemed an
approval of such Proposed Expansion Plans and authorization for Landlord
to proceed with Landlord's Expansion Work in accordance therewith. Tenant
shall have the right to consult with Landlord's architect for purposes of
review and approval of Proposed Expansion Plans and review of the
Expansion Cost Statement. Landlord and Tenant shall each cooperate with
the architect in connection with the preparation, review and approval of
Proposed Expansion Plans and the finalization of Tenant's Expansion
Plans.
If Tenant shall reject any aspect of such Proposed Expansion
Plans within the time and manner provided above, Landlord shall promptly
make such revisions to the Proposed Expansion Plans as may be necessary
so as to bring them into substantial compliance with the matters set
forth in the Expansion Space Plan and shall provide Tenant with a revised
Expansion Cost Statement based on the cost of completing the work shown
on the revised Proposed Expansion Plans. Tenant shall approve or reject
such revised Proposed Expansion Plans within ten (10) days after receipt.
Tenant shall not unreasonably withhold or delay its approval to such
revised Proposed Expansion Plans provided that they substantially comply
with the Expansion Space Plan. Failure of Tenant to respond within the
time and manner herein provided shall be deemed a waiver of such right by
Tenant and Tenant shall be deemed to have approved such revised Proposed
Expansion Plans as submitted by Landlord and to have authorized Landlord
to proceed with Landlord's Expansion Work in accordance therewith. Upon
approval by both Landlord and Tenant, such working drawings and
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specifications shall be deemed to be Tenant's Expansion Plans for all
purposes under this Lease. The OBS Costs described in such revised
Expansion Cost Statement shall, for all purposes hereunder, be deemed to
be "Expansion OBS Costs".
To the extent that Tenant shall request any changes or
modifications to Tenant's Expansion Plans (and provided that Landlord
shall approve such changes, which approval will not be unreasonably
withheld or delayed), Tenant shall pay the additional cost of completing
Landlord's Expansion Work resulting from such changes to Landlord as
additional Expansion OBS Costs hereunder as follows: 50% of costs shall
be paid at the time of approval of such change and 50% shall be paid on
the Expansion Commencement Date and Landlord's approval of any such
proposed changes shall be accompanied by a Statement of Expansion OBS
Costs and Tenant's Delay, if any, which will result from such changes.
Similarly, all Expansion OBS Costs shall be paid in the same manner, 50%
prior to Landlord commencing work and 50% on the Expansion Commencement
Date. Landlord and Tenant shall, if requested by the other, execute a
work letter confirming such excess costs prior to the time Landlord shall
be required to commence work. Upon final approval of any such revised
Tenant's Expansion Plans by Landlord and Tenant, Landlord shall promptly
proceed with such Landlord's Expansion Work.
The Expansion Space shall be deemed "ready for occupancy" on the
first Business Day (the "Expansion Substantial Completion Date")
following written notice to Tenant that Landlord's Expansion Work has
been completed except for items of work (and, if applicable, adjustment
of equipment and fixtures) which can be completed after occupancy has
been taken without causing substantial interference with Tenant's use of
the Expansion Space (i.e., so called "punch-list" items. Landlord's
notice shall be accompanied by Landlord's Architect's certificate of
completion (certified to Landlord and Tenant) of Landlord's Expansion
Work and, if applicable, a C of O (as defined in Section 4.2(b) for the
Expansion Space. It is agreed and understood that a so-called
"conditional" or "temporary" Certificate of Occupancy or Occupancy Permit
shall be deemed to satisfy the C of O requirement of the immediately
preceding sentence provided that the only condition to issuance of a
Final C of O then outstanding pertains solely to matters or work which
are the responsibility of the Tenant rather than the obligation or
responsibility of Landlord under this Lease. Tenant shall provide
Landlord with a final punch list (the "Expansion Punch-list") as to the
status of completion of Landlord's Expansion Work within ten (10) days
after delivery to Tenant of the aforementioned notice that the Expansion
Space is "ready for occupancy."
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Tenant shall afford Landlord access to the Expansion Space for the
purpose of completing the Expansion Punch List, which Expansion Punch
List shall be completed within thirty (30) days after the Landlord's
receipt of the Expansion Punch List.
If the Expansion Substantial Completion Date has not occurred by the
Expansion Construction Completion Date (as it may be extended by the
terms hereof), Tenant shall have the right to terminate the provisions of
this Section 14.29 and all of the rights and obligations of Landlord and
Tenant under this Lease as they relate to the Expansion Space (and only
the Expansion Space) by giving notice to Landlord, not later than thirty
(30) days after the Expansion Construction Completion Date (as so
extended), of Tenant's desire so to do; and the provisions of this
Section 14.29 and all of the rights and obligations of Landlord and
Tenant under this Lease as they relate to the Expansion Space (and only
the Expansion Space) shall cease and come to an end without further
liability or obligation on the part of either party seventy-five (75)
days after the giving of such notice, unless within such seventy-five
(75) day period, Landlord substantially completes Landlord's Expansion
Work to the extent required by the provisions of this Section 14.29,
which substantial completion shall void Tenant's election to terminate;
and such right of termination shall be Tenant's sole and exclusive remedy
at law or in equity for Landlord's failure so to complete Landlord's
Expansion Work within such time.
Unless Tenant shall have given Landlord written notice by the
end of the first ninety (90) days after the Expansion Commencement Date
of specific respects in which Landlord has not performed Landlord's
Expansion Work in compliance with the matters set forth in the Expansion
Space Plan and the final approved Tenant's Expansion Plans, Tenant shall
have no claim that Landlord has failed to perform any of Landlord's
Expansion Work. Landlord hereby agrees to perform Landlord's Expansion
Work (i) in compliance with the requirements of the Americans with
Disabilities Act of 1990, as amended to the extent applicable) (ii) in
compliance with all applicable laws, rules, ordinances and codes in
effect on the Expansion Substantial Completion Date and (iii) in a good
and workmanlike manner. Unless Landlord shall lease the Second Expansion
Space to Workgroup, Landlord hereby agrees that it will not substantially
alter the present physical layout of the Expansion Space. In the event
of any such alteration, Landlord shall, at its sole cost, restore same
to its condition prior to such alteration prior to performing Landlord's
Expansion Work and the costs of such restoration shall not be charged
against the Expansion Allowance.
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If a delay shall occur in the Expansion Substantial Completion
Date as the result of:
(i) any written request by Tenant that Landlord delay in the
commencement or completion of Landlord's Expansion Work for any reason;
or
(ii) any failure by Tenant to timely deliver the Expansion
Space Plan beyond July 31, 1996 or any change by Tenant in the Expansion
Space Plan or Tenant's failure to timely approve Proposed Expansion Plans
or Expansion Cost Statements (except such changes as are required and
necessary due to the fact that the Proposed Expansion Plans are not
submitted to Tenant substantially in accordance with the Expansion Space
Plan) submitted to Tenant for approval by Landlord; or
(iii) any other act or omission of Tenant or its officers,
partners, agents, servants or contractors; or
(iv) any reasonably necessary displacement of any of Landlord's
Expansion Work from its place in Landlord's construction schedule
resulting from any of the causes for delay referred to in clauses (i),
(ii) or (iii) of this paragraph and the fitting of such Work back into
the schedule;
then, in any such event, Tenant shall, from time to time and within
ten (10) days after demand therefor, pay to Landlord for each day the
Expansion Substantial Completion Date is delayed by reason of the delays
referred to in clauses (i), (ii), (iii) and (iv) above, an amount equal
to one day of Basic Rent (pro-rated on a daily basis) applicable to the
Expansion Space for each such day of delay. Landlord shall provide
Tenant with written notice of any circumstances which will result in a
Tenant's Delay, which notice shall be given at the time of occurrence of
such circumstance.
If a delay in the Expansion Substantial Completion Date, or if any
substantial portion of such delay, is the result of Force Majeure, and
such delay would not have occurred but for a delay described in (i),
(ii), (iii) or (iv above, such delay shall be deemed added to the delay
described in that paragraph.
The delays referred to above are herein referred to
collectively and individually as "Tenant's Delay".
The Expansion Construction Completion Date shall automatically be
extended for the period of any delays caused by (i) Tenant's Delay or
(ii) Force Majeure (provided that in no event shall Force Majeure alone
extend the Expansion Construction Completion Date beyond August 31, 1997)
or (iii) subject to the limitations of
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Section 14.29(a), any delay in NEMRB vacating the Expansion Space beyond
October 31, 1996 but in no event beyond August 31, 1997 in the case of
NEMRB not vacating.
(c) If the provisions of this Section 14.29 shall not be terminated
pursuant to Section 14.29(a) hereof and provided that Landlord shall give
Tenant a Workgroup Notice indicating that Workgroup will be leasing the
Second Expansion Space then, Tenant shall lease the First Expansion Space
from Landlord pursuant to this Section 14.29(c) effective as of the First
Expansion Commencement Date (as hereafter defined) on the First Expansion
Commencement Date, the entire First Expansion Space shall be added to and
included within the "Premises" for all purposes under the Lease without
the requirement of any further attention on the part of either Landlord
or Tenant and in such case, effective as of the First Expansion
Commencement Date, this Lease shall be deemed amended in the following
respects (and if requested by Landlord, Tenant shall promptly execute and
deliver an amendment to this Lease reflecting the matters herein set
forth):
(i) The Premises and the Premises Rentable Area shall be deemed
amended to include the entire First Expansion Space within the Premises
and the Premises and the Premises Rentable Area shall be increased by the
6,055 rentable square feet included in the First Expansion Space to be
and consist of a total of 36,238 rentable square feet for all purposes
under this Lease;
(ii) Basic Rent per annum shall be increased by an annual amount (the
"First Expansion Rent") equal to the Per Square Foot Rent Rate (as said
term is defined in Section 14.29(b) hereof) from time to time applicable
multiplied by the number of rentable square feet contained in the First
Expansion Space;
(iii) the Escalation Factor shall be deemed increased to be 91.78%
for all purposes and, accordingly, Tenant's monthly and annual payments
on account of the Escalation Charges shall be increased to reflect the
increase in the Premises by virtue of the addition of the First Expansion
Space;
(iv) The increases in Basic Rent and Escalation Charges as determined
pursuant to subparagraphs (i) through (iii) above shall become effective
on the First Expansion Commencement Date.
As used herein, the term "First Expansion Commencement Date"
shall be the last to occur of (i) January 31, 1997 (the "First Expansion
Construction Completion Date"), or (ii) the day following the date on
which the First Expansion Space is "ready for occupancy" as hereafter
provided. Notwithstanding the foregoing, if Tenant's
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personnel shall occupy all or any part of the First Expansion Space for
the conduct of its business prior to the First Expansion Commencement
Date, such date shall for all purposes of this Lease be the First
Expansion Commencement Date. The Tenant shall, upon demand of the
Landlord, execute a certificate confirming the First Expansion
Commencement Date as it is determined in accordance with the provisions
of this paragraph.
On or before July 31, 1996, Tenant shall deliver to Landlord a
Space Plan together with certain written specifications (hereafter the
"First Expansion Space Plan") depicting installations and improvements
necessary to prepare the First Expansion Space for Tenant's occupancy.
Upon receipt of the First Expansion Space Plan from Tenant, Landlord
shall promptly cause its architects and engineers to prepare final
working drawings and specifications reflecting the work and improvement
shown on the First Expansion Space Plan (the "Proposed First Expansion
Plans"). Upon completion of such Proposed First Expansion Plans,
Landlord shall submit same to Tenant for review and approval together
with a statement from Landlord (the "First Expansion Cost Statement")
with respect to whether or not the costs of all work, materials, permit
fees, architectural fees and engineering fees (the "Cost of First
Expansion Work") necessary to prepare such Proposed First Expansion Plans
and to complete the improvements shown thereon exceed $45,335.88 (the
"First Expansion Allowance"). Such costs set forth in the First
Expansion Cost Statement which are in excess of the First Expansion
Allowance (the "First Expansion OBS Costs") shall be borne by Tenant in
the manner hereafter specified. Tenant shall either approve or reject
such Proposed First Expansion Plans within ten (10) days after receipt
from Landlord. Tenant hereby agrees to approve and shall not
unreasonably withhold or delay its approval of such Proposed First
Expansion Plans provided that they are substantially in compliance with
those matters set forth in the First Expansion Space Plan. Failure of
Tenant to object to any aspect of such Proposed First Expansion Plans
within the time and manner provided above shall be deemed an approval of
such Proposed First Expansion Plans and authorization for Landlord to
proceed with Landlord's First Expansion Work in accordance therewith.
Tenant shall have the right to consult with Landlord's architect for
purposes of review and approval of Proposed First Expansion Plans and
review of the First Expansion Cost Statement. Landlord and Tenant shall
each cooperate with the architect in connection with the preparation,
review and approval of Proposed First Expansion Plans and the
finalization of Tenant's First Expansion Plans.
If Tenant shall reject any aspect of such Proposed First
Expansion Plans within the time and manner provided
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above, Landlord shall promptly make such revisions to the Proposed First
Expansion Plans as may be necessary so as to bring them into substantial
compliance with the matters set forth in the First Expansion Space Plan
and shall provide Tenant with a revised First Expansion Cost Statement
based on the cost of completing the work shown on the revised Proposed
First Expansion Plans. Tenant shall approve or reject such revised
Proposed First Expansion Plans and First Expansion Cost Statement within
ten (10) days after receipt. Tenant shall not unreasonably withhold or
delay its approval to such revised Proposed First Expansion Plans
provided that they substantially comply with the First Expansion Space
Plan. Failure of Tenant to respond within the time and manner herein
provided shall be deemed a waiver of such right by Tenant and Tenant
shall be deemed to have approved such revised Proposed First Expansion
Plans and First Expansion Cost Statement as submitted by Landlord and to
have authorized Landlord to proceed with Landlord's First Expansion Work
in accordance therewith. Upon approval by both Landlord and Tenant, such
working drawings and specifications shall be deemed to be Tenant's First
Expansion Plans for all purposes under this Lease. The OBS Costs
described in such revised and accepted First Expansion Cost Statement
shall, for all purposes hereunder, be deemed to be "First Expansion OBS
Costs".
To the extent that Tenant shall request any changes or
modifications to Tenant's First Expansion Plans (and provided that
Landlord shall approve such changes, which approval will not be
unreasonably withheld or delayed), Tenant shall pay the additional cost
of completing Landlord's First Expansion Work resulting from such changes
to Landlord as additional First Expansion OBS Costs hereunder as follows:
50% of costs shall be paid at the time of approval of such change and 50%
shall be paid on the First Expansion Commencement Date and Landlord's
approval of any such proposed changes shall be accompanied by a Statement
of First Expansion OBS Costs and Tenant's Delay, if any, which will
result from such changes. Similarly, all First Expansion OBS Costs shall
be paid in the same manner, 50% prior to Landlord commencing work and 50%
on the First Expansion Commencement Date. Landlord and Tenant shall, if
requested by the other, execute a work letter confirming such excess
costs prior to the time Landlord shall be required to commence work.
Upon final approval of any such revised Tenant's First Expansion Plans by
Landlord and Tenant, Landlord shall promptly proceed with such Landlord's
First Expansion Work.
The First Expansion Space shall be deemed "ready for occupancy" on
the first Business Day (the "First Expansion Substantial Completion
Date") following written notice to Tenant that Landlord's First Expansion
Work has
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been completed except for items of work (and, if applicable, adjustment
of equipment and fixtures) which can be completed after occupancy has
been taken without causing substantial interference with Tenant's use of
the First Expansion Space (i.e., so called "punch-list" items. Landlord's
notice shall be accompanied by Landlord's Architect's certificate of
completion (certified to Landlord and Tenant) of Landlord's First
Expansion Work and, if applicable, a Certificate of Occupancy (as defined
in Section 4.2(b) for the First Expansion Space. It is agreed and
understood that a so-called "conditional" or "temporary" Certificate of
Occupancy or Occupancy Permit shall be deemed to satisfy the C of O
requirement of the immediately preceding sentence, provided that the only
condition to issuance of a Final C of O then outstanding pertains solely
to matters or work which are the responsibility of the Tenant rather than
the obligation or responsibility of Landlord under this Lease. Tenant
shall provide Landlord with a final punch list (the "First Expansion
Punch-list") as to the status of completion of Landlord's First Expansion
Work within ten (10) days after delivery to Tenant of the aforementioned
notice that the First Expansion Space is "ready for occupancy." Tenant
shall afford Landlord access to the First Expansion Space for the purpose
of completing the First Expansion Punch List, which First Expansion Punch
List shall be completed within thirty (30) days after the Landlord's
receipt of the First Expansion Punch List.
If the First Expansion Substantial Completion Date has not occurred
by the First Expansion Construction Completion Date (as it may be
extended by the terms hereof), Tenant shall have the right to terminate
the provisions of this Section 14.29 and all of the rights and
obligations of Landlord and Tenant under this Lease as they relate to the
Expansion Space (and only the Expansion Space) by giving notice to
Landlord, not later than thirty (30) days after the First Expansion
Construction Completion Date (as so extended), of Tenant's desire so to
do; and the provisions of this Section 14.29 and all of the rights and
obligations of Landlord and Tenant under this Lease as they relate to the
Expansion Space (and only the Expansion Space) shall cease and come to an
end without further liability or obligation on the part of either party
seventy-five (75) days after the giving of such notice, unless within
such seventy-five (75) day period, Landlord substantially completes
Landlord's First Expansion Work to the extent required by the provisions
of this Section 14.29, which substantial completion shall void Tenant's
election to terminate; and such right of termination shall be Tenant's
sole and exclusive remedy at law or in equity for Landlord's failure so
to complete Landlord's First Expansion Work within such time.
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Unless Tenant shall have given Landlord written notice by the
end of the first ninety (90) days after the First Expansion Commencement
Date of specific respects in which Landlord has not performed Landlord's
First Expansion Work in compliance with the matters set forth in the
First Expansion Space Plan and the final approved Tenant's First
Expansion Plans, Tenant shall have no claim that Landlord has failed to
perform any of Landlord's First Expansion Work. Landlord hereby agrees to
perform Landlord's First Expansion Work (i) in compliance with the
requirements of the Americans with Disabilities Act of 1990, as amended
to the extent applicable) (ii) in compliance with all applicable laws,
rules, ordinances and codes in effect on the First Expansion Substantial
Completion Date and (iii) in a good and workmanlike manner. Unless
Landlord shall lease the Second Expansion Space to Workgroup, Landlord
hereby agrees that it will not substantially alter the present physical
layout of the Expansion Space between the date of this Lease and the
First Expansion Commencement Date. In the event of any such alteration,
Landlord shall restore same to its condition prior to such alteration.
If a delay shall occur in the First Expansion Substantial
Completion Date as the result of:
(i) any written request by Tenant that Landlord delay in the
commencement or completion of Landlord's First Expansion Work for any
reason; or
(ii) any failure by Tenant to timely deliver the First
Expansion Space Plan beyond July 31, 1996 or any change by Tenant in the
First Expansion Space Plan or Tenant's failure to timely approve Proposed
First Expansion Plans or First Expansion Cost Statements (except such
changes as are required and necessary due to the fact that the Proposed
First Expansion Plans are not submitted to Tenant substantially in
accordance with the First Expansion Space Plan) submitted to Tenant for
approval by Landlord; or
(iii) any other act or omission of Tenant or its officers,
partners, agents, servants or contractors; or
(iv) any reasonably necessary displacement of any of Landlord's
First Expansion Work from its place in Landlord's construction schedule
resulting from any of the causes for delay referred to in clauses (i),
(ii) or (iii) of this paragraph and the fitting of such Work back into
the schedule;
then, in any such event, Tenant shall, from time to time and within
ten (10) days after demand therefor, pay to Landlord for each day the
First Expansion Substantial
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Completion Date is delayed by reason of the delays referred to in clauses
(i), (ii), (iii) and (iv) above, an amount equal to one day of Basic Rent
(pro-rated on a daily basis) applicable to the First Expansion Space for
each such day of delay. Landlord shall provide Tenant with written notice
of any circumstances which will result in a Tenant's Delay, which notice
shall be given at the time of occurrence of such circumstance.
If a delay in the First Expansion Substantial Completion Date, or if
any substantial portion of such delay, is the result of Force Majeure,
and such delay would not have occurred but for a delay described in (i),
(ii), (iii) or (iv) above, such delay shall be deemed added to the delay
described in that paragraph.
The delays referred to above are herein referred to
collectively and individually as "Tenant's Delay".
The First Expansion Construction Completion Date shall automatically
be extended for the period of any delays caused by (i) Tenant's Delay or
(ii) Force Majeure (provided that in no event shall Force Majeure alone
extend the First Expansion Construction Completion Date beyond August 31,
1997) or (iii) subject to the limitations of Section 14.29(a), any delay
-
in NEMRB vacating the First Expansion Space beyond October 31, 1996, but
in no event beyond August 31, 1997 in the case of a delay in NEMRB
vacating.
(d) If the provisions of this Section 14.29 shall not be terminated
pursuant to Section 14.29(a) hereof and provided that Tenant shall have
leased the First Expansion Space as and when required by the provisions
of Section 14.29(c) hereof then, Tenant shall lease the Second Expansion
Space from Landlord pursuant to this Section 14.29(d) and effective as of
the Second Expansion Commencement Date (as hereafter defined) the entire
Second Expansion Space shall be added to and included within the
"Premises" for all purposes under the Lease without the requirement of
any further attention on the part of either Landlord or Tenant and in
such case, effective as of the Second Expansion Commencement Date, this
Lease shall be deemed amended in the following respects (and if requested
by Landlord, Tenant shall promptly execute and deliver an amendment to
this Lease reflecting the matters herein set forth):
(i) The Premises and the Premises Rentable Area shall be deemed
amended to include the entire Second Expansion Space within the Premises
and the Premises and the Premises Rentable Area shall be increased by
3,244 rentable square feet included in the Second Expansion Space to be
and consist of a total of 39,482 rentable square feet for all purposes
under this Lease;
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(ii) Basic Rent per annum shall be increased by an annual amount (the
"Second Expansion Rent") equal to the Per Square Foot Rent Rate (as said
term is defined in Section 14.29(b) hereof) from time to time applicable
multiplied by the number of rentable square feet contained in the Second
Expansion Space;
(iii) the Escalation Factor shall be deemed increased to be 100% for
all purposes and, accordingly, Tenant's monthly and annual payments on
account of the Escalation Charges shall be increased to reflect the
increase in the Premises by virtue of the addition of the Second
Expansion Space;
(iv) The increases in Basic Rent and Escalation Charges as determined
pursuant to subparagraphs (i) through (iii) above shall become effective
on the Second Expansion Commencement Date.
As used herein, the term "Second Expansion Commencement Date"
shall be the last to occur of (i) January 31, 1998 (the "Second Expansion
Construction Completion Date"), or (ii) the day following the date on
which the Second Expansion Space is "ready for occupancy" as hereafter
provided. Notwithstanding the foregoing to the contrary, in the event
that Workgroup shall remain in occupancy of the Second Expansion Space
beyond October 31, 1997, Landlord, at its sole cost and expense, shall
promptly commence summary process proceedings to cause the removal or
eviction of Workgroup from the Expansion Space (and shall thereafter
diligently pursue such action to completion) upon expiration of the term
of the Workgroup Lease if Workgroup does not then vacate the Second
Expansion Space. Notwithstanding anything contained in this Section
14.29 to the contrary, in the event that Workgroup shall not vacate the
Second Expansion Space on or before January 31, 1998, Tenant may, at its
option, but written notice to Landlord on or before February 5, 1998
terminate the provisions of this Section 14.29(d) (the "Workgroup
Termination Right") and all of Landlord and Tenant's rights and
obligations under this Lease as they pertain to the Second Expansion
Space (and only as they pertain to the Second Expansion Space), which
termination shall be effective as of the date of such notice. Failure of
Tenant to give Landlord such termination notice within the time and
manner herein specified shall be deemed a waiver of Tenant's Workgroup
Termination Right. Upon Workgroup vacating the Second Expansion Space,
Landlord shall commence Landlord's Expansion Work (as hereafter defined)
in the Second Expansion Space. Notwithstanding the foregoing, if
Tenant's personnel shall occupy all or any part of the Second Expansion
Space for the conduct of its business prior to the Second Expansion
Commencement Date, such
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date shall for all purposes of this Lease be the Second Expansion
Commencement Date. The Tenant shall, upon demand of the Landlord, execute
a certificate confirming the Second Expansion Commencement Date as it is
determined in accordance with the provisions of this Section 14.29(d)
On or before July 31, 1997, Tenant shall deliver to Landlord a
Space Plan together with certain written specifications (hereafter the
"Second Expansion Space Plan") depicting installations and improvements
necessary to prepare the Second Expansion Space for Tenant's occupancy.
Upon receipt of the Second Expansion Space Plan from Tenant, Landlord
shall promptly cause its architects and engineers to prepare final
working drawings and specifications reflecting the work and improvement
shown on the Second Expansion Space Plan (the "Proposed Second Expansion
Plans"). Upon completion of such Proposed Second Expansion Plans,
Landlord shall submit same to Tenant for review and approval together
with a statement from Landlord (the "Second Expansion Cost Statement")
with respect to whether or not the costs of all work, materials, permit
fees, architectural fees and engineering fees (the "Cost of Second
Expansion Work") necessary to prepare such Proposed Second Expansion
Plans and to complete the improvements shown thereon exceed $23,293.00
(the "Second Expansion Allowance"). Such costs set forth in the Second
Expansion Cost Statement which are in excess of the Second Expansion
Allowance (the "Second Expansion OBS Costs") shall be borne by Tenant in
the manner hereafter specified. Tenant shall either approve or reject
such Proposed Second Expansion Plans within ten (10) days after receipt
from Landlord. Tenant hereby agrees to approve and shall not
unreasonably withhold or delay its approval of such Proposed Second
Expansion Plans provided that they are substantially in compliance with
those matters set forth in the Second Expansion Space Plan. Failure of
Tenant to object to any aspect of such Proposed Second Expansion Plans
within the time and manner provided above shall be deemed an approval of
such Proposed Second Expansion Plans and authorization for Landlord to
proceed with Landlord's Second Expansion Work in accordance therewith.
Tenant shall have the right to consult with Landlord's architect for
purposes of review and approval of Proposed Second Expansion Plans and
review of the Second Expansion Cost Statement. Landlord and Tenant shall
each cooperate with the architect in connection with the preparation,
review and approval of Proposed Second Expansion Plans and the
finalization of Tenant's Second Expansion Plans.
If Tenant shall reject any aspect of such Proposed Second
Expansion Plans within the time and manner provided above, Landlord shall
promptly make such revisions to the
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Proposed Second Expansion Plans as may be necessary so as to bring them
into substantial compliance with the matters set forth in the Second
Expansion Space Plan and shall provide Tenant with a revised Second
Expansion Cost Statement based on the cost of completing the work shown
on the revised Proposed Second Expansion Plans. Tenant shall approve or
reject such revised Proposed Second Expansion Plans and Second Expansion
Cost Statement within ten (10) business days after receipt. Tenant shall
not unreasonably withhold or delay its approval to such revised Proposed
Second Expansion Plans provided that they substantially comply with the
Second Expansion Space Plan. Failure of Tenant to respond within the time
and manner herein provided shall be deemed a waiver of such right by
Tenant and Tenant shall be deemed to have approved such revised Proposed
Second Expansion Plans and Second Expansion Cost Statement as submitted
by Landlord and to have authorized Landlord to proceed with Landlord's
Second Expansion Work in accordance therewith. Upon approval by both
Landlord and Tenant, such working drawings and specifications shall be
deemed to be Tenant's Second Expansion Plans for all purposes under this
Lease. The OBS Costs described in such revised and accepted Second
Expansion Cost Statement shall, for all purposes hereunder, be deemed to
be "Second Expansion OBS Costs".
To the extent that Tenant shall request any changes or
modifications to Tenant's Second Expansion Plans (and provided that
Landlord shall approve such changes, which approval will not be
unreasonably withheld or delayed), Tenant shall pay the additional cost
of completing Landlord's Second Expansion Work resulting from such
changes to Landlord as additional Second Expansion OBS Costs hereunder as
follows: 50% of costs shall be paid at the time of approval of such
change and 50% shall be paid on the Second Expansion Commencement Date
and Landlord's approval of any such proposed changes shall be accompanied
by a Statement of Second Expansion OBS Costs and Tenant's Delay, if any,
which will result from such changes. Similarly, all Second Expansion OBS
Costs shall be paid in the same manner, 50% prior to Landlord commencing
work and 50% on the Second Expansion Commencement Date. Landlord and
Tenant shall, if requested by the other, execute a work letter confirming
such excess costs prior to the time Landlord shall be required to
commence work. Upon final approval of any such revised Tenant's Second
Expansion Plans by Landlord and Tenant, Landlord shall promptly proceed
with such Landlord's Second Expansion Work.
The Second Expansion Space shall be deemed "ready for occupancy" on
the first Business Day (the "Second Expansion Substantial Completion
Date") following written notice to Tenant that Landlord's Second
Expansion Work
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has been completed except for items of work (and, if applicable,
adjustment of equipment and fixtures) which can be completed after
occupancy has been taken without causing substantial interference with
Tenant's use of the Second Expansion Space (i.e., so called "punch-list"
items). Landlord's notice shall be accompanied by Landlord's Architect's
certificate of completion (certified to Landlord and Tenant) of
Landlord's Second Expansion Work and, if applicable, a C of O (as defined
in Section 4.2(b) for the Second Expansion Space. It is agreed and
understood that a so-called "conditional" or "temporary" Certificate of
Occupancy or Occupancy Permit shall be deemed to satisfy the C of O
requirement of the immediately preceding sentence, provided that the only
condition to issuance of a Final C of O then outstanding pertains solely
to matters or work which are the responsibility of the Tenant rather than
the obligation or responsibility of Landlord under this Lease. Tenant
shall provide Landlord with a final punch list (the "Second Expansion
Punch-list") as to the status of completion of Landlord's Second
Expansion Work within ten (10) days after delivery to Tenant of the
aforementioned notice that the Second Expansion Space is "ready for
occupancy." Tenant shall afford Landlord access to the Second Expansion
Space for the purpose of completing the Second Expansion Punch List,
which Second Expansion Punch List shall be completed within thirty (30)
days after the Landlord's receipt of the Second Expansion Punch List.
If the Second Expansion Substantial Completion Date has not occurred
by the Second Expansion Construction Completion Date (as it may be
extended by the terms hereof), Tenant shall have the right to terminate
the provisions of this Section 14.29(d) and all of the rights and
obligations of Landlord and Tenant under this Lease as they relate to the
Second Expansion Space (and only the Second Expansion Space) by giving
notice to Landlord, not later than thirty (30) days after the Second
Expansion Construction Completion Date (as so extended), of Tenant's
desire so to do; and the provisions of this Section 14.29(d) and all of
the rights and obligations of Landlord and Tenant under this Lease as
they relate to the Second Expansion Space (and only the Second Expansion
Space) shall cease and come to an end without further liability or
obligation on the part of either party seventy-five (75) days after the
giving of such notice, unless within such seventy-five (75) day period,
Landlord substantially completes Landlord's Second Expansion Work to the
extent required by the provisions of this Section 14.29, which
substantial completion shall void Tenant's election to terminate; and
such right of termination shall be Tenant's sole and exclusive remedy at
law or in equity for Landlord's failure so to complete Landlord's Second
Expansion Work within such time.
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Unless Tenant shall have given Landlord written notice by the
end of the first ninety (90) days after the Second Expansion Commencement
Date of specific respects in which Landlord has not performed Landlord's
Second Expansion Work in compliance with the matters set forth in the
Second Expansion Space Plan and the final approved Tenant's Second
Expansion Plans, Tenant shall have no claim that Landlord has failed to
perform any of Landlord's Second Expansion Work. Landlord hereby agrees
to perform Landlord's Second Expansion Work (i) in compliance with the
requirements of the Americans with Disabilities Act of 1990, as amended
to the extent applicable) (ii) in compliance with all applicable laws,
rules, ordinances and codes in effect on the Second Expansion Substantial
Completion Date and (iii) in a good and workmanlike manner.
If a delay shall occur in the Second Expansion Substantial
Completion Date as the result of:
(i) any written request by Tenant that Landlord delay in the
commencement or completion of Landlord's Second Expansion Work for any
reason; or
(ii) any failure by Tenant to timely deliver the Second
Expansion Space Plan beyond July 31, 1997 or any change by Tenant in the
Second Expansion Space Plan or Tenant's failure to timely approve
Proposed Second Expansion Plans or Second Expansion Cost Statements
(except such changes as are required and necessary due to the fact that
the Proposed Second Expansion Plans are not submitted to Tenant
substantially in accordance with the Second Expansion Space Plan)
submitted to Tenant for approval by Landlord; or
(iii) any other act or omission of Tenant or its officers,
partners, agents, servants or contractors; or
(iv) any reasonably necessary displacement of any of Landlord's
Second Expansion Work from its place in Landlord's construction schedule
resulting from any of the causes for delay referred to in clauses (i),
(ii) or (iii) of this paragraph and the fitting of such Work back into
the schedule;
then, in any such event, Tenant shall, from time to time and within
ten (10) days after demand therefor, pay to Landlord for each day the
Second Expansion Substantial Completion Date is delayed by reason of the
delays referred to in clauses (i), (ii), (iii) and (iv) above, an amount
equal to one day of Basic Rent (pro-rated on a daily basis) applicable to
the Second Expansion Space for each such day of delay. Landlord shall
provide Tenant with written notice of any circumstances which will
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result in a Tenant's Delay, which notice shall be given at the time of
occurrence of such circumstance.
If a delay in the Second Expansion Substantial Completion Date, or
if any substantial portion of such delay, is the result of Force Majeure,
and such delay would not have occurred but for a delay described in (i),
(ii), (iii) or (iv) above, such delay shall be deemed added to the delay
described in that paragraph.
The delays referred to above are herein referred to
collectively and individually as "Tenant's Delay".
The Second Expansion Construction Completion Date shall
automatically be extended for the period of any delays caused by (i)
Tenant's Delay or (ii) Force Majeure (provided that in no event shall
Force Majeure alone extend the Second Expansion Construction Completion
Date beyond August 31, 1998 or (iii) any delay in Workgroup vacating the
Second Expansion Space beyond October 31, 1997, but in no event beyond
August 31, 1998 in the event of Workgroup's failure to vacate.
14.30 PERMITTED SIGNAGE. Subject to the terms and conditions hereafter
------------------
set forth and to all applicable building codes, ordinances, by-laws,
zoning codes and land use restrictions, Landlord has agreed that Tenant
may (to the extent permitted by applicable law) erect one sign (the
-
"Building Sign") on the exterior facade of the Building and one sign (the
-
"Entry Sign") on the ground at the entrance to the Property in the
vicinity of the existing street number sign (the Building Sign and the
Entry Sign are sometimes hereafter collectively the "Exterior Sign"). It
is hereby expressly agreed and understood that each Exterior Sign shall
consist only of Tenant's name and logo. Landlord hereby reserves the
right to review and approve the content, size, color, manner of
illumination, manner of attachment to the Building (in the case of the
-
Building sign) and location of each Exterior Sign, which approval shall
not be unreasonably withheld or delayed by Landlord but with such
reasonable additional conditions as Landlord may deem appropriate in its
reasonable discretion. Landlord hereby approves those matters set forth
hereinabove which are specifically expressed, provided and/or described
in Exhibit H.
Tenant shall be responsible (at its sole cost and expense) for obtaining
all necessary governmental permits, approvals and authorizations for the
approved Exterior Sign. Copies of all such permits, approvals and
authorizations shall be delivered to Landlord prior to Tenant performing
any work. In addition, Tenant shall, at its sole cost and expense, (i)
pay for all work and materials, permits, and approvals necessary for the
erection of the Exterior Signs (ii) continuously throughout the Term of
this Lease, maintain and repair the Exterior Signs and (iii) upon any
expiration or earlier termination of the
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Term of this Lease, remove the Exterior Signs from the
Property, repairing any and all damage to the Building and the Property
resulting from the installation and removal of such Exterior Sign.
It is expressly agreed and understood that Landlord shall not be
responsible for any costs or expenses in any way pertaining or related to
the installation, repair, maintenance or removal of the Exterior Sign.
The provisions of Article V of the Lease shall be applicable to Tenant's
installation of the Exterior Sign. Landlord makes no representation or
warranty as to whether the Exterior Sign will be permitted by applicable
laws, ordinances or codes.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
TENANT: LANDLORD:
- - ------- ---------
Desktop Data, Inc. Teachers Realty
Corporation
By: By:
---------------------- ------------------------
Richard J. Usas
Its: Its: Assistant Secretary
---------------------
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EXHIBIT E
---------
(ITEMS INCLUDED IN OPERATING EXPENSES)
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which
shall be directly related to employment of personnel, including
amounts incurred for wages, salaries and other compensation for
services, payroll, social security, unemployment and similar taxes,
workmen's compensation insurance, disability benefits, pensions,
hospitalization, retirement plans and group insurance, uniforms and
working clothes and the cleaning thereof, and expenses imposed on
Landlord or Landlord's agents in connection with the operation,
repair, maintenance, cleaning, management and protection of the
Property, and its mechanical systems including, without limitation,
day and night supervisors, property manager, accountants, bookkeepers,
janitors, carpenters, engineers, mechanics, electricians and plumbers
and personnel engaged in supervision of any of the persons mentioned
above excluding persons higher than Building Manager: provided that,
if any such employee is also employed on other property of Landlord,
such compensation shall be suitably allocated on a proportionate basis
by Landlord among the Property and such other properties based on time
spent.
2. The cost of services, materials and supplies furnished or used
in the operation, repair, maintenance, cleaning, management and
protection of the Property including, without limitation, fees and
assessments, if any, imposed upon Landlord, or charged to the
Property, by any governmental agency or authority or other duly
authorized private or public entity on account of public safety
services, transit, housing, police, fire, sanitation or other services
or purported benefits.
3. The cost of replacements for tools and other similar equipment
used in the repair, maintenance, cleaning and protection of the
Property, provided that, in the case of any such equipment used
jointly on other property of Landlord, such costs shall be allocated
by Landlord among the Property and such other properties.
4. Premiums for insurance against damage or loss to the Building
from such hazards as shall from time to time be generally required by
institutional mortgagees in the Boston area for similar properties,
including, but not by way of limitation, insurance covering loss of
rent attributable to any such hazards, and public liability insurance.
5. Where the Property is managed by Landlord or an affiliate of
Landlord, a sum equal to the amounts customarily charged by management
firms in the Boston area for similar properties, but in no event more
than six percent (6%) of gross annual income, whether or not actually
paid, or where managed by other than Landlord or an affiliate thereof,
the amounts accrued for management, together with, in either case,
amounts accrued for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in connection
with services rendered for securing or renewing leases and for matters
not related to the normal administration and operation of the
Building.
6. If, at any time during the Term of this Lease after expiration
of the First Lease Year, Landlord shall make a capital expenditure,
the total cost of which is not properly includable in Operating
Expenses for the Operating Year in which it was made and (i) such
capital expenditure was made in order to bring the Building into
compliance with any law, code, ordinance, by-law or statute not in
effect as of the date of this Lease or (ii) such capital
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expenditure was made in order to make the Building more operationally
efficient or in order to reduce Operating Expenses (regardless of
whether or not such efficiencies or reductions shall actually result)
then in any such case, there shall nevertheless be included in
Operating Expenses for the Operating Year in which it was made and in
Operating Expenses for each succeeding Operating Year the annual
charge-off of such expenditure. The annual charge-off shall be
determined by dividing the original capital expenditure plus an
interest factor, reasonably determined by Landlord, as being the
interest rate then being charged for long-term mortgages, by
institutional lenders on like properties within the locality in which
the Building is located, by the number of years of useful life of the
capital expenditure, and the useful life shall be determined
reasonably by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of making
such expenditure.
7. Betterment assessments provided the same are apportioned
equally over the longest period permitted by law.
8. Amounts paid to independent contractors for services,
materials and supplies furnished for the operation, repair,
maintenance, cleaning and protection of the Property.
The following shall not be included in Operating Expenses:
The following shall not be included in Operating Expenses:
(a) Work & Services. Leasehold improvements, alterations and decorations
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or other work done for specific tenants of the Building.
(b) Promotional Expenses. Advertising and promotional expenditures or
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contributions or gifts.
(c) Leasing Costs. Costs incurred in connection with Landlord's
-------------
preparation, negotiation and/or enforcement of leases, including court
costs and attorneys' fees and disbursements in connection with any
summary proceeding to dispossess any tenant.
(d) Financing Costs. Financing and refinancing costs in respect of any
---------------
mortgage placed upon the Property, including points and commissions in
connection therewith.
(e) Interest & Penalties. Interest or penalties for any late payments by
--------------------
Landlord.
(f) Brokerage Commissions. Leasing and brokerage fees and commissions.
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(g) Building Additions. Costs of constructing any additional floors or
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rentable area to the Building after the original construction.
(h) Interest and Amortization. Interest or amortization on any loan or
-------------------------
mortgage with respect to the Land or the Building.
(i) Legal & Accounting. Legal and auditing fees or other professional
------------------
fees, other than those reasonably incurred in connection with the
maintenance and routine management and operation of the Land and
Building.
(j) Ground Rent. Rent or other charges payable under any ground or
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underlying lease.
(k) Licenses & Permits. Costs and expenses of governmental licenses and
------------------
permits, or renewals thereof, unless the same are for governmental
licenses or permits normal to the operation or maintenance of the Land
or Building.
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EXHIBIT G
RULES AND REGULATIONS
1. The sidewalks, paved and/or landscaped areas shall not be
obstructed or encumbered by Tenant or used for any purpose other than ingress
and egress to and from the demised premises.
2. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the demised
premises or Building so as to be visible from outside the demised premises
without the prior written consent of Landlord, which will not be unreasonably
withheld or delayed. In the event of the violation of this paragraph, Landlord
may remove same without any liability, and may charge the expense incurred in
such removal to Tenant, as additional rent.
3. No awnings, curtains, blinds, shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
demised premises or any outside wall of the Building without the prior written
consent of Landlord, which will not be unreasonably withheld or delayed so long
as said upon other portions of the Building. Such awnings, curtains, blinds,
shades, screens or other projections must be of a quality, type, design and
color, and attached in the manner, approved by Landlord. If any portion of the
demised premises which is not used for office purposes shall have windows, such
windows shall be equipped with curtains, blinds or shades approved by Landlord,
and said curtains, blinds or shades shall be kept closed at all times.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids, chemicals, process water,
cooling water or like substances shall be deposited therein. Said plumbing
fixtures and the discharge of so-called sanitary waste. All damage resulting
from any misuse of said fixtures and/or plumbing system by Tenant or anyone
claiming under Tenant shall be borne by Tenant.
5. Tenant must, upon the termination of its tenancy, return to
Landlord all locks, cylinders and keys to the demised premises and any offices
therein
6. Tenant shall keep any sidewalks and planters in front of the
demised premises reasonably free and clear of litter and refuse, regardless of
the source thereof.
7. Intentionally Omitted.
8. Tenant shall not make, or permit to be made, any unseemly or
disturbing odors or noises or disturb or interfere with occupants of the
Building or those having business with them, whether by use of any musical
instrument, radio machine, or in any other way.
9. Canvassing, soliciting, and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
10. Tenant shall keep the demised premises free at all time of pests,
rodents and other vermin, and Tenant shall keep all trash and rubbish stored in
containers of a type approved by Landlord, such containers to be kept at
locations designated by Landlord. Tenant shall cause such containers to be
emptied whenever necessary to prevent them from overflowing or form producing
any objectionable odors.
11. Landlord reserves the right to rescind, alter, waive and/or
establish any reasonable rules and regulations of uniform application to all
tenants which, in its judgment, are necessary, desirable or proper for its best
interests and the best interests of the occupants of the Building.
12. The access roads, driveways, entrances and exits shall not be
obstructed or encumbered by Tenant or used for any purpose other than ingress
and egress.
-78-
EXHIBIT H
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TENANT'S APPROVED SIGNAGE
-------------------------
As f the date of this Lease, Tenant has not provided any information
regarding signage. Accordingly, any signage proposed by Tenant shall be
subject to the provisions of Article V and this Section 14.30.
-79-