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EXHIBIT 10.8
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BAY COLONY CORPORATE CENTER
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950 Winter Street
Waltham, Massachusetts
REFERENCE DATA
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LANDLORD: Desmond Taljaard and Howard Friedman, Trustees of London &
Leeds NDAI Bay Colony I Realty Trust
LANDLORD'S ADDRESS: c/o London & Leeds Development Corporation
One Wall Street Court
New York, NY 10005
Copies to: I. Aaron Cohen, P.C.
c/o Kassler & Feuer, P.C.
101 Arch Street
Boston, MA 02110
and
Thomas Collins, Esquire
c/o London & Leeds Development Corporation
One Wall Street Court
New York, NY 10005
LANDLORD'S
REPRESENTATIVE: Howard Friedman and John O'Neil, III
c/o London & Leeds Development Corporation
1000 Winter Street
Waltham, MA 02154
TENANT: Leasecomm Corporation, a Massachusetts corporation; and
Boyle Leasing Technologies, Inc., a Massachusetts
corporation, jointly and severally
TENANT'S ADDRESS: 950 Winter Street, Waltham, MA 02154
INITIAL TERM: 60 months (plus, if the commencement date is a day other
than the first day of a calendar month, the partial month
between the commencement date and the last day of the
calendar month in which the commencement date occurs,
inclusive)
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SIZE OF SPACE: 17,039 square feet
BASIC RENT: (a) For the partial calendar month (if any) between
the Commencement Date and the first day of the first full
calendar month during the Term - $417,455.50, multiplied
by a fraction whose numerator is the number of days in the
partial calendar month and whose denominator is 365.
(b) For the 1st full calendar month during the Term - $0.
(c) For the 2nd through 4th full calendar months during
the Term - at the rate of $70,217.00 per annum (i.e.
$5851.42 per month).
(d) For the 5th through 12th full calendar months during
the Term - at the rate of $392,955.50 per annum (i.e.
$32,746.29 per month).
(e) For the remainder of the Term - at the rate of
$417,455.50 per annum (i.e. $34,787.96 per month, and
proportionately at such rate for any partial month).
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STANDARD OFFICE LEASE
950 WINTER STREET
BAY COLONY CORPORATE CENTER
WALTHAM, MASSACHUSETTS
<< TABLE OF CONTENTS >>
C a p t i o n
Article
Number
I. BASIC LEASE PROVISIONS...................................................
II. PREMISES AND APPURTENANT RIGHTS..........................................
III. BASIC RENT; TENANT'S ELECTRICAL CHARGE...................................
IV. TERM OF LEASE............................................................
V. REAL ESTATE TAXES........................................................
VI. OPERATING EXPENSES.......................................................
VII. USE OF PREMISES..........................................................
VIII. ASSIGNMENT AND SUBLETTING................................................
IX. RESPONSIBILITY FOR REPAIRS AND CONDITION OF
PREMISES; SERVICES TO BE FURNISHED BY LANDLORD...........................
X. INDEMNITY AND INSURANCE..................................................
XI. LANDLORD'S ACCESS TO PREMISES............................................
XII. FIRE, EMINENT DOMAIN, ETC................................................
XIII. DEFAULT..................................................................
XIV. MISCELLANEOUS PROVISIONS
14.1 Extra Hazardous Use
14.2 Waiver
14.3 Covenant of Quiet Enjoyment
14.4 Landlord's Liability
14.5 Rules and Regulations
14.6 Additional Charges
14.7 Invalidity of Particular Provisions
14.8 Provisions Binding, Etc.
14.9 Recording
14.10 Notices
14.11 When Lease Becomes Binding
14.12 Paragraph Headings
14.13 Subordination; Attornment
14.14 Assignment of Rents and Transfer of Title
14.15 Status Report
14.16 Remedying Defaults
14.17 Holding Over
14.18 Waiver of Subrogation
14.19 Surrender of Premises
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14.20 Brokerage
14.21 [INTENTIONALLY OMITTED]
14.22 Waiver of Jury Trial
14.23 Governing Law
14.24 [INTENTIONALLY OMITTED]
14.25 Termination of the Existing Lease
14.26 Landlord's Contribution toward Tenant's Relocation Expenses
14.27 Tenant's Option to Extend
14.28 Tenant's Right of First Offer
{EXHIBITS}. The Exhibits listed below are incorporated in this Lease by
reference and are to be construed as part of this Lease.
Exhibit A: Plan(s) Showing Leased Premises
Exhibit B: Rules and Regulations
Exhibit C: Tenant's Floor Plans
Exhibit D: Building Standard Tenant Improvements
Exhibit E: Building Services
Exhibit F: Description of Land
Exhibit G: Description of Office Park
Exhibit H: Offer Space
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L E A S E
THIS INSTRUMENT IS A LEASE, dated as of April 14, 1994, in which Landlord
and Tenant are the parties hereafter named, and which relates to space in a
building (the "Building") known as 950 Winter Street, located in Bay Colony
Corporate Center, Waltham, Massachusetts. The parties to this instrument hereby
agree as follows:
ARTICLE I
BASIC LEASE PROVISIONS
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1.1 INTRODUCTION. Each reference in this Lease to any of the following
subjects referred to in Section 1.2 or 1.3 shall be construed to incorporate the
data stated for that subject in this Article.
1.2 BASIC DATA.
Landlord: Desmond Taljaard and Howard Friedman,
Trustees of London & Leeds NDAI Bay
Colony I Realty Trust
Landlord's Address: c/o London & Leeds Development Corporation
One Wall Street Court
New York, NY 10005
Attention:Desmond Taljaard
with a copy to: I. Aaron Cohen, P.C.
c/o Kassler & Feuer, P.C.
101 Arch Street
Boston, MA 02110
and
Thomas Collins, Esquire
c/o London & Leeds Development Corporation
One Wall Street Court
New York, NY 10005
Tenant: Leasecomm Corporation, a Massachusetts
corporation; and Boyle Leasing
Technologies, Inc., a Massachusetts
corporation, jointly and severally
Tenant's
Original Address: 281 Winter Street, Suite 311,
Waltham, MA 02154
Building
Rentable Area: 274,628 square feet
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Tenant's
Rentable Area: 17,039 square feet
Leased Premises
or Premises: See Exhibit A
Anticipated Term
Commencement Date: July 1, 1994
Initial Term: 60 months
Option to Extend: One (1) period of five (5) years
Basic Rent: (a) For the partial calendar month (if
any) between the Commencement Date and the
first day of the first full calendar month
during the Term - $417,455.50, multiplied
by a fraction whose numerator is the
number of days in the partial calendar
month and whose denominator is 365.
(b) For the 1st full calendar month during
the Term - $0.
(c) For the 2nd through 4th full calendar
months during the Term at the rate of
$70,217.00 per annum (i.e. $5851.42 per
month).
(d) For the 5th through 12th full calendar
months during the Term - at the rate of
$392,955.50 per annum (i.e. $32,746.29 per
month).
(e) For the remainder of the Term - at the
rate of $417,455.50 per annum (i.e.
$34,787.96 per month, and proportionately
at such rate for any partial month).
Operating Expense Base: Operating Expenses incurred on account of
calendar 1994
Tax Base: Taxes incurred on account of calendar 1994
Tenant's Tax and
Operating Percentage: 6.204% (See Section 5.1.)
Tenant's Electrical
Charge: $14,483.15 per annum
($0.85 per rentable sq. ft.)
Security Deposit: None
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Landlord's Maximum
Contribution toward Tenant's
Moving Expenses: $17,039.00
Public Liability Insurance: combined single limit for bodily
insurance and property damage of
$3,000,000.00.
Permitted Uses: administrative offices, clerical
offices and statistical offices.
Broker(s): Fallon, Hines & O'Connor; and RSI
Properties
Construction Representatives:
For Landlord: Rustom Cowasjee
For Tenant: Richard Latour
1.3 ADDITIONAL DEFINITIONS.
Building: The building erected on the Land, and all alterations and
additions thereto and replacements thereof.
Business Days: All days except Sundays and legal holidays.
Commencement Date: As defined in Section 4.1.
Common Property: All of the land and improvements in the Office Park, as
from time to time constituted (including land owned by any entity affiliated
with Landlord), which is used or enjoyed by, or made available to, Tenant and
other lessees of the Office Park for access, parking or other purposes. The term
Common Property shall include all retention ponds, drainage facilities, electric
substations, utility lines, pumping stations and other facilities and structures
which serve the Building and other buildings in the Office Park; provided,
however, that Common Property shall not include (a) any office building located
in the Office Park except the Building, (b) land reserved exclusively to provide
parking or other amenities for other buildings within the Office Park and (c)
property reserved for future development (or under construction) by Landlord,
except to the extent the same is reserved for, made available to or used by all
lessees of the Office Park.
Default Rate: As defined in Section 14.16.
Escalation Charges: The amounts prescribed in Sections 5.1, 5.2 and 6.2
plus Tenant's Electrical Charge.
Existing Lease Termination Date: As defined in Section 14.25.
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Land: The lot or parcel of land on which the Building is located as more
particularly set forth on Exhibit F, subject to adjustments of the Lot
boundaries from time to time.
Landlord's Work: As defined in Section 4.2.
Leased Premises or Premises: A portion of the Building as shown on
Exhibit A annexed hereto.
Office Park: Bay Colony Corporate Center, which includes all of the land
described in Exhibit G (subject to adjustments of the boundaries thereof and/or
the boundaries of each lot thereof) plus such additional land as may be added
thereto from time to time.
Operating Expenses: As determined in accordance with Section 6.1.
Property: The Building and the Land.
Taxes: As determined in accordance with Section 5.1.
Tax Year: As defined in Section 5.1.
Tenant's Floor Plans: As defined in Section 4.2.
Tenant's Plans: As defined in Section 4.2.
Tenant's Removable Property: As defined in Section 7.2.
Term of this Lease: The Initial Term and any proper extension thereof
exercised in accordance with the provisions of this Lease. The Initial Term
shall commence on the Commencement Date and expire at the close of the day on
which the Initial Term ends, except that if the Commencement Date shall be other
than the first day of a calendar month, the expiration of the Initial Term shall
be at the close of the day on the last day of the calendar month in which the
end of the Initial Term shall fall.
ARTICLE II
PREMISES AND APPURTENANT RIGHTS
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2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for
the Term of this Lease and upon the terms and conditions hereinafter set forth,
and Tenant hereby accepts from Landlord, the Premises and all appurtenant areas.
2.2 APPURTENANT RIGHTS AND RESERVATIONS.
(a) Tenant shall have, as appurtenant to the Premises, the non-exclusive
right to use and permit its invitees to use, in common with others, public or
common lobbies, hallways, stairways, elevators and common walkways necessary for
access to the Building, and if the portion of the Premises on any floor includes
less than the entire floor, the common toilets,
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corridors and elevator lobby of such floor; but such rights shall always be
subject to the rules and regulations from time to time established by Landlord
pursuant to Section 14.5 and to the right of Landlord to designate and change
from time to time areas and facilities so to be used.
(b) Tenant shall have, as appurtenant to the Premises, the nonexclusive
right, in common with others entitled thereto, to use the portions of the Land
in such other locations thereon as are designated from time to time by Landlord,
for parking by its customers, employees, suppliers and visitors. Landlord
reserves the right from time to time, and at Landlord's sole discretion, to
alter or redesign the parking area, to temporarily close portions of the parking
area and/or to relocate the ingress and egress to and from the parking area and
Building provided, however, that Landlord will use reasonable efforts to
minimize interference with Tenant's use and enjoyment of the Premises. Tenant
and its employees shall also have the right to use, in common with others
entitled thereto, such other common areas and facilities in or appurtenant to
the Building as Landlord may from time to time designate and provide.
(c) Tenant shall also have, as appurtenant to the Premises, the
non-exclusive right, in common with others entitled thereto from time to time,
subject to such regulations as Landlord shall from time to time impose, to use
the roads of the Office Park located within the Common Property for access to
the Property and the Premises.
(d) Excepted and excluded from the Premises are exterior faces of
exterior walls, the common stairways and stairwells, elevators and elevator
shafts; but the entry doors to the Premises are a part thereof. Landlord
reserves the right from time to time (a) to install, use, maintain, replace and
relocate for service to the Premises and other parts of the Building, or either,
pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the
Premises or Building, and (b) to alter or relocate any other common facility,
provided that substitutions are substantially equivalent or better. However,
with respect to any such activities within the Premises, Landlord shall act
diligently to minimize interference with Tenant's activities, so as to assure
that there will be no material interference with Tenant's use and enjoyment of
the Premises. Landlord reserves the exclusive use of all fan rooms, electric and
telephone closets, janitor closets, freight elevator vestibules, pipes, ducts,
conduits, wires and appurtenant fixtures located within the Premises which serve
exclusively or in common other parts of the Building.
ARTICLE III
BASIC RENT; TENANT'S ELECTRICAL CHARGE
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3.1 BASIC RENT.
(a) Tenant agrees to pay to Landlord, or as directed by Landlord, without
offset, abatement (except as provided in Section 12.1), deduction or demand,
Basic Rent and Tenant's Electrical Charge. Basic Rent and Tenant's Electrical
Charge shall be payable in monthly installments, in advance, on the first day of
each and every calendar month during the Term of this Lease, at Landlord's
Address, or at such other place as Landlord shall from time to time designate by
notice. Basic Rent and Tenant's Electrical Charge for any partial month shall be
prorated on a daily basis.
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(b) On the Commencement Date, Tenant shall pay to Landlord Tenant's
Electrical Charge for the first full calendar month of the Term, along with
Tenant's Electrical Charge and Basic Rent (in the amount specified in
Section 1.2) for the partial calendar month (if any) between the Commencement
Date and the first day of the first full calendar month during the Term.
Beginning with the first day of the second full calendar month during the Term,
and on the first day of each succeeding calendar month during the Term, Tenant
shall pay to Landlord Basic Rent and Tenant's Electrical Charge, in the amounts
specified in Section 1.2, above.
(c) In addition to any charges pursuant to Section 14.16, Tenant shall
pay a late charge equal to 5% of the amount of any Basic Rent payment or
Escalation Charge not paid when due (unless such late charge is prohibited by
any applicable law); provided, however, that on the first two occasions during
any twelve month period during which any Basic Rent payment or Escalation Charge
is not paid when due, such late charge shall be payable only if such payment is
not made within ten (10) days after Tenant receives notice that such payment was
not made when due.
ARTICLE IV
TERM OF LEASE
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4.1 COMMENCEMENT DATE. The Commencement Date shall be the earlier of (a)
that date on which the Premises are ready for occupancy as provided in
Section 4.3, and (b) that date on which Tenant commences occupancy for the
Permitted Uses. However, if the Premises are ready for occupancy prior to
July 1, 1994, then the Commencement Date shall be the earlier of (a) July 1,
1994 and (b) that date on which Tenant commences occupancy for the Permitted
Uses.
4.2 TENANT'S PLANS. As used herein, "Tenant's Floor Plans" shall mean the
plans for the Premises specified on Exhibit C, annexed (including, without
limitation, frosting of glass and installation of a wood rail at the windows
from the Premises into the Building's central atrium); "Tenant's Plans" shall
mean architectural plans and working drawings for the preparation of the
Premises, based upon Tenant's Floor Plans and. incorporating the Building
Standard Tenant Improvements specified on Exhibit D, annexed; and "Landlord's
Work" shall mean the work shown on Tenant's Plans. Following the Existing Lease
Termination Date (as defined in Section 14.25, below), Landlord shall, at its
sole cost and expense, prepare Tenant's Plans. Within seven (7) business days
after Tenant's receipt of Tenant's Plans, Tenant shall either approve Tenant's
Plans or notify Landlord of any respect(s) in which Tenant requests that
Tenant's Plans be modified. (Tenant's failure to respond prior to the expiration
of such seven (7) business day period shall be deemed to constitute approval of
Tenant's Plans as submitted by Landlord.) Promptly following Tenant's approval
of Tenant's Plans (which approval shall not be unreasonably withheld or
delayed), Landlord shall, at its sole cost and expense, undertake Landlord's
Work.
If, during the course of Landlord's Work, Tenant shall request a change in
Tenant's Plans, Landlord shall notify Tenant of the anticipated increase (if
any) in Landlord's costs resulting from such change. (The increase in Landlord's
Costs resulting from such change shall be comprised of the actual increase in
out-of-pocket costs and expenses incurred by Landlord as a
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result of such change, plus an additional charge of ten (10%) percent of such
increased out-of-pocket costs and expenses, serving as reimbursement to Landlord
for additional administrative costs and supervisory fees arising on account of
such change.) If Tenant shall thereafter authorize such change, then, incident
to the delivery of such authorization, Tenant shall deliver to Landlord a
payment in the amount of the anticipated increase in Landlord's costs. At such
time as Landlord's Work has been completed, a final determination of the actual
increase in Landlord's costs resulting from changes in Tenant's Plans during the
course of Landlord's Work will be made and additional payment by Tenant to
Landlord or reimbursement by Landlord to Tenant will be made, as appropriate, so
that Tenant will be required to pay the actual amount of the increase in
Landlord's costs.
4.3 LANDLORD'S AND TENANT'S WORK; DELAYS.
(a) Tenant hereby agrees that the initial installation of improvements to
the Premises will be performed by Landlord's general contractor. Landlord agrees
to use due diligence to complete the work described in Tenant's Plans on or
before the Anticipated Term Commencement Date. Landlord shall not be required to
install any improvements which are not in conformity with plans and
specifications for the Building or which are not approved by Landlord's
architect or which do not comply with applicable laws, ordinances or codes. In
case of delays due to governmental regulation, unusual scarcity or inability to
obtain labor or materials, labor difficulties, casualty or other causes beyond
Landlord's reasonable control, the Anticipated Term Commencement Date shall be
extended for the period of such delays. The Premises shall be deemed ready for
occupancy when (i) the work described in Tenant's Plans, together with the
common facilities for access and services to the Premises, has been completed
except for items of work and 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"), and (ii) Tenant has received Landlord's certificate of the completion
of the Premises in accordance with clause (i) of this sentence. Landlord shall
complete as soon as conditions practicably permit all items of work excepted by
said clause (i) and Tenant shall cooperate reasonably with Landlord so as to
avoid unreasonable interference with such completion.
Prior to the Commencement Date, Landlord shall permit Tenant access
for installing furnishings in portions of the Premises when it can be done
without material interference with remaining work. In connection with such
access, Tenant covenants (i) to cease promptly upon request by Landlord any
activity or work during any period which, in Landlord's judgment, shall
interfere with or delay Landlord's prosecution or completion of Landlord's Work
at the earliest possible date, (ii) that Tenant shall comply promptly with all
procedures and regulations prescribed by Landlord from time to time for
coordinating such work and activities with any other activity or work in the
Premises or the Building, (iii) that such access shall be at the sole risk of
Tenant and shall be deemed to be a license, (iv) that Tenant shall indemnify and
hold harmless Landlord from and against any and all claims arising from, or
claimed to arise from or out of the performance of any work by or on behalf of
Tenant in the Building or the Premises, or which may arise by reason of any
matter collateral thereto, and from and against any and all claims arising from,
or claimed to arise from, any negligence, act or failure to act of Tenant, its
contractors, decorators, servants, agents or employees or for any other reason
whatsoever arising
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out of Tenant's access to or being in the Premises or in connection with
Tenant's work, (v) that Tenant shall not employ or permit the employment of any
contractor, mechanic or laborer, or permit any materials in the Premises, if the
use of such contractor, mechanic or laborer would, in Landlord's opinion, create
any difficulty, strike or jurisdictional dispute with other contractors,
mechanics or laborers employed by Tenant, Landlord or others, or would in any
way disturb, interfere with or delay any work being performed by Landlord or any
other tenant or their respective contractors, and (vi) to pay any loss or
additional expense caused to Landlord by any delay in the completion of
Landlord's Work resulting from Tenant's access and Tenant's work. Such access by
Tenant shall be deemed to be pursuant to all the provisions of this Lease and
Tenant shall comply therewith, except that the obligation to pay rent shall not
commence until the Commencement Date. No material or equipment shall be
incorporated in the Premises in connection with the making of such installations
which is subject to any lien, charge, mortgage or other encumbrance of any kind
whatsoever, or subject to any conditional sale or other similar or dissimilar
title retention agreement. If Tenant fails to comply with any of the foregoing
obligations, then, in addition to all other rights and remedies hereunder,
Landlord may by notice to Tenant require Tenant to cease the performance of such
activity and Tenant's work until Landlord's Work has been completed.
(b) Tenant agrees that if the Premises would have been ready for
occupancy at an earlier date but for Tenant's Delay (as hereinafter defined),
then, for the purposes of subparagraphs 4.3(a) and 4.3(c), the Premises shall be
deemed to have been ready for occupancy on the date on which the Premises would
have been ready for occupancy if such delay(s) had not occurred. As used herein,
the term "Tenant's Delay" means any delay in the completion of Landlord's Work
resulting from:
(i) Tenant's request for changes in Tenant's Plans subsequent to
the original approval of Tenant's Plans;
(ii) Tenant's failure to approve Tenant's Plans and authorize
Landlord to proceed within the time required in Section 4.2, above;
(iii) Tenant's request for materials, finishes or installations
other than Building Standard Tenant Improvements (and those above building
standard improvements (if any) which are expressly set forth on Tenant's
Floor Plans);
(iv) The performance or delay by a person, firm or corporation
employed by Tenant and/or the completion or delay of the work of said
person, firm or corporation;
(v) Any change by Tenant in any air conditioning requirement, or
in any information furnished by Tenant;
(vi) The fact that work other than Building Standard Tenant
Improvements (and those above building standard improvements (if any) which
are expressly set forth on Tenant's Floor Plans) requires lead time to
obtain particular materials or parts or additional time to perform in
excess of the time
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required for the corresponding Building Standard Tenant Improvements (and
those above building standard improvements (if any) which are expressly set
forth on Tenant's Floor Plans);
(vii) Installation of Tenant's telephone and/or communications
systems;
(viii) Any direction by Tenant that Landlord delay in proceeding with
a segment of Landlord's Work in anticipation of a possible change or for
any other reason; or
(ix) Any other act or omission of Tenant, its agents, employees,
contractors or subcontractors.
(c) If Landlord shall be unable to give possession of the Premises on the
Anticipated Term Commencement Date because the Premises are not completed and
ready for occupancy, or if the previous occupant of the Premises has not yet
vacated the Premises, or if repairs, improvements or decorations of the Premises
or of the Building are not completed, Landlord shall not be subject to any
liability for failure to give possession on said date (nor shall such failure
affect the validity of this Lease), except as expressly provided in the
remaining provisions of this subparagraph (c). If, however, the Premises are not
completed and ready for occupancy within five (5) days following the Anticipated
Term Commencement Date, then, for each day between the Anticipated Term
Commencement Date and the date on which the Premises are completed and ready for
occupancy, Landlord shall grant to Tenant a credit toward Tenant's rental an
other monetary obligations hereunder, in the amount of $2,287.43. If the
Premises are not completed and ready for occupancy within sixty (60) days
following the Anticipated Term Commencement Date, then, as Tenant's sole remedy
on account thereof, Tenant shall have the right to terminate this Lease. Such
right shall be exercised (if at all) by notice to Landlord not later than the
date on which the Premises are completed and ready for occupancy. If Tenant
exercises such right, then this Lease shall terminate and be of no further force
and effect, and neither of the parties hereto shall have any further rights or
obligations hereunder.
(d) All of 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, at Landlord's option, be performed by
Landlord's general contractor or by contractors or workmen first approved by
Landlord. If Landlord shall require that Tenant retain Landlord's contractor,
Landlord's contractor shall provide its services at costs reasonably comparable
to the charges imposed by other reputable contractors in the Metropolitan Boston
area; and Landlord shall provide supervisory services (for which Tenant shall
pay to Landlord a reasonable supervisory fee, except that Landlord shall not be
entitled to receive a supervisory fee in connection with Landlord's initial
improvements to the Premises, as provided in subsection 4.3(a), above). If
Landlord shall not require that Tenant retain Landlord's contractor, Landlord
shall not unreasonably withhold or delay its approval of contractors and workmen
chosen by Tenant. 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 of its contractors
and subcontractors and the
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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 of 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, with respect to
public liability insurance, the amount specified in Section 1.2 (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 immediately to discharge any such liens which may so attach and, at
the request of Landlord, to deliver to Landlord security satisfactory to
Landlord against liens arising out of the furnishing of such labor and
materials. 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, materialman, 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.
4.4 WORKMANSHIP AND APPROVAL. Prior to the date on which Tenant commences
occupancy of the Premises for the Permitted Uses, Landlord and Tenant shall
conduct a "joint walk through" in the Premises, for the purpose of determining
any items of Landlord's Work which are then uncompleted or do not conform to
Tenant's Plans. Following such joint walk through, Landlord's Work shall be
deemed approved by Tenant when Tenant commences occupancy of the Premises for
the Permitted Uses, except for items which are then uncompleted or do not
conform to the drawings and specifications referred to in Section 4.2 and as to
which, in either case, Tenant. shall have given notice to Landlord prior to such
date. However, with respect to latent defects (that is, defects in the
completion of Landlord's Work which could not be discovered through a careful
visual inspection of the Premises), the work required of Landlord pursuant to
this Article IV shall be deemed approved by Tenant except for items as to which
Tenant shall have given notice to Landlord within six (6) months following the
date on which Tenant commences occupancy of the Premises for the Permitted Uses.
4.5 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION. All construction work
required or permitted by this Lease shall be done in a good and workmanlike
manner and in compliance with all applicable laws and lawful ordinances,
regulations and orders of governmental authority and insurers of the Property.
Each party may inspect the work of the other at reasonable times (and without
causing interference with on-going construction activities) and shall promptly
give notice of observed defects. Each party authorizes the other to rely, in
connection with design and construction, upon approval and other actions on the
party's behalf by the Construction Representative of the party, if any, named in
Article I or any person named in substitution or addition by notice to the party
relying.
4.6 CHANGES IN THE OFFICE PARK. Landlord expressly reserves the right to
change the layout, design and plans for the Office Park and the Common Property
at any time
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and to add to or reduce the size of the Land; provided that no change in the
size of the Land may result in a permanent material adverse effect upon the
Building or the parking areas, streets or sidewalks serving the Building; and
provided further that any change in the size of the Land which results in a
temporary adverse effect upon the Building or the parking areas, streets or
sidewalks serving the Building shall be deemed to constitute an interruption of
services which Landlord is required to supply hereunder, and shall be governed
by the provisions of Section 9.8 below. Landlord hereby expressly reserves the
right to dedicate the roads within the Office Park for public use.
ARTICLE V
REAL ESTATE TAXES
-----------------
5.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES.
(a) For the purpose 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 occurring wholly or
partially during the Term, and the term "Taxes" shall mean all taxes and special
assessments of every kind and nature assessed by any governmental authority upon
or against the Land and/or the Building and/or the Property or any part thereof,
or payments in lieu thereof, or which Landlord shall become obligated to pay
because of or in connection with the ownership, leasing and operation of the
Land and/or the Building and/or the Property and reasonable expenses of any
proceedings for abatement of Taxes. "Taxes" shall also include, if any, such
portion of any taxes and special assessments assessed against the remainder of
the Office Park as may be allocated to Landlord as owner of the Land and/or the
Building and/or the Property, pursuant to any joint operating agreement or other
similar arrangement between Landlord and the owner(s) of the remaining portions
of the Office Park (Landlord agreeing hereby that such allocation shall be made
in good faith, in a fair manner). The amount of special taxes or special
assessments to be included shall be limited to the amount of the installment
(plus any interest, other than penalty interest, payable thereon) of such
special tax or special assessment required to be paid during the year in respect
of which such taxes are being determined. There shall be excluded from Taxes (i)
any federal, state or local income, profit, franchise, privilege, capital levy,
excise, inheritance, estate, succession, gift, deed, conveyance or transfer
taxes, and (ii) so long as Tenant has satisfied its obligations under this
Article V on a timely basis, any penalties or interest resulting from the late
payment of Taxes; provided, however, that if at any time during the Term the
present system of ad valorem tax on real property shall be changed so that, in
lieu of the whole or any part of the ad valorem tax on real property, there
shall be assessed to Landlord a capital levy or other tax on the gross rents
received with respect to the Property, or a federal, state, county, municipal,
or other local income, franchise, excise or similar tax, assessment, levy or
charge (distinct from any now in effect in the jurisdiction in which the
Property is located) measured by or based, in whole or in part, upon any such
gross rents, then any and all of such capital levy or taxes shall be included
within the term "Taxes", but only to the extent that the same would be payable
if the Property were the only property of Landlord.
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(b) In the event that, for any reason, Taxes shall be greater during any
Tax Year than the Tax Base, Tenant shall pay to Landlord, as an Escalation
Charge, an amount (the "Tax Excess") equal to the excess of Taxes over the Tax
Base multiplied by Tenant's Tax and Operating Percentage, such amount to be
apportioned for any fraction of a Tax Year in which the Commencement Date falls
or the Term ends.
(c) Payment of Tenant's Tax Excess shall be made to Landlord within
thirty (30) days from the date Landlord shall give written notice to Tenant
that, based upon a bill received for Taxes (or partial Taxes), or other form of
notice received from any governmental authority responsible for Taxes, there is
due from Tenant any Tax Excess (which collection notice shall set forth the
manner of computation of any Tax Excess due from Tenant). At Landlord's
election, simultaneously with Tenant's monthly payments of Basic Rent, Tenant
shall remit to Landlord one-twelfth of Landlord's estimate of the Tax Excess for
the then-current Tax Year. If the total of such monthly remittances is greater
than the Tax Excess for such Tax Year, Landlord shall credit the difference
against the next installment of Tax Excess due to Landlord hereunder (except,
that, upon Tenant's request, and so long as Tenant is not then in default in the
performance of its obligations hereunder, Landlord shall pay such excess
directly to Tenant, in cash); and if the total of such remittances is less than
the Tax Excess for such Tax Year, Tenant shall pay the difference at the time
any Tax Excess becomes due and payable as hereinabove provided.
(d) If Landlord shall receive any refund of Taxes as to which Tenant has
paid Tax Excess, Tenant shall be entitled to receive a refund from Landlord in
an amount equal to the smaller of (i) the amount of Tax Excess paid by Tenant
with respect to the Tax Year as to which the refund was obtained by Landlord and
(ii) Tenant's Tax and Operating Percentage multiplied by the amount (if any) by
which the amount of the refund received by Landlord exceeds the costs and
expenses incurred by Landlord in obtaining such refund.
5.2 ALTERNATE TAXES. If some method of taxation shall replace the current
method of assessment of real estate taxes, or the type thereof, Tenant agrees
that Tenant shall pay an equitable share of the same 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.
5.3 PERSONAL PROPERTY TAXES. Tenant shall pay, promptly when due, all
taxes which may be imposed upon personal property (including, without
limitation, fixtures and equipment) in the Premises to whomever assessed.
ARTICLE VI
OPERATING EXPENSES
------------------
6.1 DEFINITIONS. For the purpose of this Article, the following terms
shall have the following respective meanings:
Operating Year: Each calendar year in which any part of the Term shall
fall.
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Operating Expenses: All costs and expenses incurred with respect to the
operation, administration, cleaning, repair, management, maintenance and upkeep
of (i) the Property and (ii) the Common Property (including the amount (if any)
of any Operating Expenses incurred by other parties with respect to the
remainder of the Office Park and allocated to Landlord as owner of the Land
and/or the Building and/or the Property (Landlord agreeing hereby that such
allocation shall be made in good faith, in a fair manner)), including without
limiting the generality of the foregoing:
(a) all salaries, wages, fringe benefits, payroll taxes and workmen's
compensation insurance premiums related thereto with respect to any employees of
Landlord engaged in security, operation, management and maintenance of the
Property and the Common Property, exclusive, however, of the allocable share of
all management personnel expenses not related to the operation, maintenance or
upkeep of the Property and the Common Property;
(b) all utilities and other costs related to provision of heat (including
oil and/or gas), air-conditioning, lighting, and water (including sewer charges)
and other utilities (other than electrical service, for which provision is made
elsewhere in this Lease) to the Property and the Common Property;
(c) all out-of-pocket costs, including, without limitation, material and
equipment costs, for cleaning, maintenance, replacement, reasonable repair and
upkeep of the Property (including without limitation window cleaning of the
Building) and/or the Common Property, and of all parking areas, roads and
landscaping located on the Property and the Common Property;
(d) all costs of any insurance carried by Landlord relating to the
Property and/or the Common Property;
(e) all out-of-pocket costs of operating and maintaining the Property
and/or the Common Property in good working order, appearance and condition
(including, but not limited to, snow removal, security, operation and repair of
heating and air-conditioning equipment, elevators, and any other common Building
equipment or system), as well as the cost of all repairs and replacements other
than repairs for which Landlord has received full reimbursement from
contractors, other tenants of the Building or others;
(f) all legal, accounting, management and other fees and charges directly
related to the operation, management and administration of the Property and the
Common Property (including any management fee charged by Landlord for its
services in connection with the operation, management and administration of the
Property; provided, however, that such management fee shall be included in
Operating Expenses only to the extent that such management fee does not exceed
the management fee then being charged by reputable third-party management agents
in the metropolitan Boston area for providing similar services);
(g) all costs for electricity supplied to the Property and/or the Common
Property after deducting (i) Tenant's Electrical Charge paid by Tenant for such
period and (ii) all payments of electricity charges from other tenants in the
Property for such period which are separately stated
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in such other tenant leases as "Tenant's Electrical Charge". The cost of
electricity supplied to Tenant and to other tenants of the Building which is
separately metered shall not be included in Operating Expenses (but, in such
case, the Operating Expense Base shall be reduced as and to the extent such
Operating Expense includes sums attributable to the electricity being metered);
(h) all costs of disposal of refuse from the Property and/or the Common
Property;
(i) all license, permit and inspection fees relating to the Property, the
Common Property or any part thereof;
(j) (INTENTIONALLY OMITTED.);
(k) if, during the Term, Landlord shall add or replace a capital item
other than as provided in subparagraph (ix) of the next succeeding paragraph
hereof, there shall be included in Operating Expenses for that and each
succeeding calendar year the amount of the annual charge-off (determined as
hereinafter provided) of such capital expenditure together with interest at an
annual rate equal to 2% over the "prime rate" of Bank of Boston in effect at the
time of making such capital expenditure (less insurance or other proceeds, if
any, collected by Landlord by reason of damage to, or destruction of, any
capital item so replaced). (Annual charge-off shall be determined by dividing
the original cost of a capital item or a capital expenditure made during the
Term by the number of years of useful life of the item acquired, and the useful
life shall be determined by Landlord's accountants in accordance with generally
accepted accounting principles and practices in effect at the time of
acquisition of the capital item.); and
(1) all costs and fees payable under service and management contracts
relating to matters referred to in Items (a) through (i) hereof (provided,
however, that costs and fees payable under service and management contracts with
parties affiliated with Landlord shall be included in Operating Expenses only to
the extent that such costs and fees do not exceed the costs and fees then being
charged by reputable third parties in the metropolitan Boston area for providing
similar services).
There shall not be included in Operating Expenses:
(i) Painting, decoration or other work which Landlord performs for
any other tenant or prospective tenant of the Building other than painting,
decoration or other work which is standard for the Building and performed
generally for tenants subsequent to their initial occupancy (and will be
made available to Tenant);
(ii) Leasing commissions and expenses of procuring tenants,
including lease concessions and lease takeover obligations;
(iii) Legal fees incurred in connection with the execution or
enforcement of any other lease concerning premises in the Building;
(iv) Depreciation;
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(v) Interest on and amortization of debt;
(vi) Wages or salaries of employees over the rank of building
manager;
(vii) Taxes;
(viii) Rents payable under any ground lease affecting the Property;
and
(ix) Capital expenses related to expansion of the Building or the
exterior facilities serving the Building, correction of defects in the
initial construction of the Building, correction of any violation of any
federal, state or local regulation or ordinance if such violation exists as
of the date of this Lease and any improvement to the Building intended to
benefit one or more specific occupants of the Building (it being intended
that capital expenses which are to be included in Operating Expenses will
be expenses relating to activities (such as, for example, roof replacement,
repair and replacement of structural and mechanical systems of the Building
and repair of parking facilities and roadways) which are intended to
benefit generally the occupants of the Building).
If, during any portion of the Operating Year for which Operating Expenses
are being computed, less than 95% of Building Rentable Area was occupied by
tenants, 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 95% occupied for such year, and such
extrapolated amount shall, for the purpose hereof, be deemed to be Operating
Expenses for such Year.
Tenant acknowledges that Landlord's formula for sharing of Operating
Expenses stated in this Lease is based on the assumption that Landlord will be
providing substantially similar services to all tenants in the Property from
year to year. If this assumption is not, in fact, correct (that is, if Landlord
is not furnishing any particular work or service (the cost of which, if
performed by Landlord, would be included in Operating Expenses) to a tenant who
has undertaken to perform such work or service in lieu of the performance
thereof by Landlord), Operating Expenses shall be deemed, for purposes of this
paragraph, to be increased by an amount equal to the additional Operating
Expenses which would reasonably have been incurred during such period by
Landlord if it had, at its own expense, furnished such work or service to such
tenant.
6.2 TENANT'S PAYMENTS. In the event that Operating Expenses for any
Operating Year shall exceed the Operating Expense Base, Tenant shall pay to
Landlord, as an Escalation Charge, an amount (the "Operating Expense Excess")
equal to Tenant's Tax and Operating Percentage multiplied by the sum of (i) 100%
of such increase in Operating Expenses related to the Property plus (ii) the
percentage of any such increase in Operating Expenses related to the Common
Property which Landlord fairly allocates to the Property, such amount to be
apportioned for any Operating Year in which the Commencement Date falls or the
Term ends.
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Payment of any Operating Expense Excess shall be made to Landlord within
thirty (30) days from the date Landlord shall furnish to Tenant an itemized
statement of Tenant's share of any such excess, prepared, allocated and computed
in accordance with generally accepted accounting principles. At Landlord's
election, simultaneously with Tenant's monthly payments of Basic Rent, Tenant
shall remit to Landlord one-twelfth (1/12th) of Landlord's estimate of the
Operating Expense Excess for the then-current Operating Year. If the total of
such monthly remittances is greater than the Operating Expense Excess for such
year, Landlord shall credit any such excess payments against the next
installment of Operating Expense Excess due to Landlord hereunder (except that,
upon Tenant's request, and so long as Tenant is not then in default in the
performance of its obligations hereunder, Landlord shall pay such excess
directly to Tenant, in cash); and if the total of such remittances is less than
the Operating Expense Excess for such year, Tenant shall pay the difference to
Landlord at the time the first monthly installment of Operating Expense Excess
with respect to the next succeeding Operating Year becomes due and payable as
hereinabove provided.
ARTICLE VII
USE OF PREMISES
---------------
7.1 PERMITTED USES.
(a) Tenant agrees that the Premises shall be used and occupied by Tenant
only for the Permitted Uses and for no other purposes.
(b) Tenant agrees to conform to the following provisions during the Term:
(i) Tenant shall cause all freight and other property to be
delivered to or removed from the Building and the Premises in accordance
with reasonable rules and regulations established by Landlord therefor.
Tenant shall not receive or ship articles of any kind except through
loading and receiving facilities, if any, provided for those purposes by
Landlord; provided, however, that Tenant shall be permitted to receive and
ship ordinary mail, Federal Express packages, UPS packages and other small
items without using loading and receiving facilities, so long as such
activities are conducted in a manner consistent with the operation of a
first-class office building; and
(ii) Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of windows and door(s)), or
on any part of the Land or Building outside the Premises, any sign, symbol,
advertisement or the like visible to public view outside of the Premises.
Landlord will not unreasonably withhold consent for signs or lettering on
the entry doors to the Premises provided such signs conform to Building
standards adopted by Landlord and Tenant has submitted to Landlord a plan
or sketch of the sign to be placed on such entry doors. Landlord agrees,
however, to maintain a tenant directory in the lobby of the Building in
which will be placed Tenant's name and the location of the Premises in the
Building; and
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(iii) Tenant shall not perform any act or carry on any practice
which may injure the Premises, or any other part of the Property or the
Office Park, or cause any offensive odors or loud noise or constitute a
nuisance or a menace to any other tenant or tenants or other persons in the
Building or the Office Park. Tenant shall not overload or otherwise misuse
the plumbing, electrical and other utilities systems serving the Premises
and the Building. Tenant shall not use or devote the Premises or any part
thereof for any use which is inconsistent with the maintenance of the
Building as an office building of first class quality in maintenance, use
and occupancy, or which is improper, offensive, contrary to law or
ordinance or liable to render necessary any alteration or addition to the
Building; and
(iv) Tenant shall not operate any cooking apparatus (except for
coffee making equipment, a microwave oven and a refrigerator), or locate
any vending machines (other than a vending machine serving Tenant's
employees) in the Premises without Landlord's prior written consent; and
(v) Tenant shall continuously, throughout the Term of this Lease,
occupy the Premises for the Permitted Uses; and
(vi) Tenant will comply with all laws, ordinances, rules and
regulations of governmental authorities and recommendations of the Fire
Underwriters Rating Bureau or any similar entity with respect to the
condition, use or occupancy of the Premises and the use or occupancy of the
Building; and
(vii) Tenant shall not obstruct in any manner any portion of the
Building not hereby leased or of the Property or the Common Property used
by Tenant in common with others.
7.2 INSTALLATIONS AND ALTERATIONS BY TENANT.
(a) Tenant shall make no alterations, additions (including, for the
purposes hereof, wall-to-wall carpeting), or improvements (including Tenant's
initial improvements) in or to the Premises without Landlord's prior written
consent (Landlord agreeing hereby that such consent shall not be unreasonably
withheld or delayed with respect to any proposed alteration or addition which
will not affect (i) the structural elements or utilities systems of the
Building, (ii) the exterior appearance of the Building or (iii) the appearance
of any common area of the Building or the Office Park). Any such alterations,
additions or improvements shall (i) be performed in a good and workmanlike
manner and in compliance with Building standards, the applicable provisions of
Article IV, and all applicable laws (Without limitation, if, because of
alterations, additions or improvements undertaken (or proposed to be undertaken)
by or on behalf of Tenant, applicable laws require additional alterations,
additions or improvements to the Premises or the Building which would not have
been required but for Tenant's additions, etc. (or proposed additions, etc.),
Tenant shall be obligated, at its sole cost and expense, to undertake and
complete all such additional alterations, additions or improvements.), (ii) be
made only by Landlord's contractor or by contractors or mechanics approved by
Landlord (all as provided in subsection
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4.3(d), above), (iii) be made at Tenant's sole expense and at such times as
Landlord may designate, and (iv) become part of the Premises and the property of
Landlord. Tenant agrees 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, labor or material in the Building or the Office
Park pursuant to arrangements made by Landlord or Landlord's contractor.
Furthermore, Tenant agrees that it will not permit any contractors or other
persons retained by Tenant to make alterations, additions or improvements on the
Premises to commence their activities until such time as Landlord has received
Certificates of Insurance confirming that such persons maintain public
liability, automobile liability, workmen's compensation and other insurance
required by Landlord, in amounts satisfactory to Landlord.
(b) All articles of personal property and all business fixtures,
machinery, 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 the Term, provided that Tenant, at its expense, shall repair, to
the reasonable satisfaction of Landlord (but subject to ordinary wear and tear),
any damage to the Property 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 Property based upon any act or interest of Tenant or of anyone
claiming through Tenant, Tenant shall forthwith take such action by bonding,
deposit or payment as will remove or satisfy the lien.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
-------------------------
8.1 PROHIBITION.
(a) Subject to the remaining provisions of this subsection (a), Tenant
covenants and agrees that neither this Lease nor the term and estate hereby
granted, nor any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred, and that neither the Premises nor
any part thereof will be encumbered in any manner by reason of any act or
omission on the part of Tenant, or used or occupied or permitted to be used or
occupied 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, without in
each case having first obtained the express written consent of Landlord. The
foregoing restrictions shall not be applicable to an assignment of this Lease or
a subletting of the Premises by Tenant to a subsidiary wholly-owned by Tenant or
to a controlling corporation, the stock of which is wholly-owned by the
stockholders of Tenant (any such entity being referred to herein as a "Related
Party") . It shall be a condition of the validity of any assignment, whether
with the consent of Landlord or to a subsidiary or controlling corporation, that
the assignee agrees directly with Landlord, by written instrument in form
satisfactory to Landlord, to be bound by all the obligations of Tenant hereunder
including, without limitation,
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the covenant against further assignment and subletting. No assignment or
subletting shall relieve Tenant from its obligations hereunder and Tenant shall
remain fully and primarily liable therefor.
Landlord agrees that its consent to a proposed assignment or sublease shall
not be unreasonably withheld or delayed, and Tenant agrees to provide to
Landlord such information as Landlord may reasonably require in order to reach
an informed decision. Without limitation, Landlord shall not be deemed to be
unreasonable in withholding its consent to a proposed assignment or sublease
unless each of the following criteria has been satisfied: (i) the proposed
assignee or subtenant is of good reputation and character and is financially
stable (provided, however, that any, proposed assignee or subtenant which
purchases all or substantially all of the stock or assets of Tenant shall be
deemed to be financially stable if, following such purchase, the purchaser has a
net worth not less than the net worth of Tenant immediately prior to such
purchase), (ii) the proposed assignee or subtenant is not otherwise a tenant of
the Office Park, (iii) the proposed assignee or subtenant will use the Premises
solely for the Permitted Uses, (iv) the proposed assignee or subtenant does not
intend to use the Premises for a "Prohibited Activity" (as hereinafter defined),
and (v) the intended use of the Premises by the proposed assignee or subtenant
is consistent with the maintenance of the Building as a first-class office
building, and will not interfere with the business activities of other occupants
of the Office Park. Tenant shall not advertise or otherwise offer to the general
public any portion (or all) of the Premises at a rental rate which is lower than
the rental rate then being quoted by Landlord for equivalent space in the
Building. (The provisions of the immediately preceding sentence are intended to
apply to advertisements in media of general circulation, but shall not limit
Tenant's publications through brokers.)
For the purposes of the immediately preceding paragraph, a "Prohibited
Activity" is a use which will, in Landlord's reasonable judgment, (i) introduce
undue amounts of public traffic in the Building (in excess of average traffic
which Landlord reasonably believes is generated by other tenants in the
Building), or (ii) place a strain on the existing plumbing, electrical and
mechanical systems of the Building or (iii) generate unusually high densities of
employees or invitees per square foot of rentable space.
(b) If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may, whether or not it
has consented to any such assignment, subletting or occupancy, 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 or collection
shall be deemed a waiver of any breach of Section 8.1 (a), or the acceptance of
the assignee, subtenant or occupant as a tenant or a release of Tenant from the
further performance by Tenant of its obligations hereunder. In the event that
Basic Rent and other charges payable to Tenant under any assignment or sublease
exceed Basic Rent and other charges payable hereunder, after Tenant has been
reimbursed from such excess for all reasonable out-of-pocket costs and expenses
incurred by Tenant in entering into the assignment or sublease, Tenant shall pay
to Landlord, as and when received from the assignee or subtenant, 50% of such
excess. (If only a portion of the Premises is subleased, determination of any
excess shall be computed by allocating Basic Rent and other charges hereunder on
a per square foot basis between the portion of the Premises which is subject to
the sublease and the remainder of the Premises.) The consent
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by Landlord to an assignment or subletting shall in no way be construed to
relieve Tenant or any successor from obtaining the express written consent of
Landlord to any further assignment or subletting. No assignment or subletting
and no use of the Premises by a subsidiary wholly-owned by Tenant or controlling
corporation of Tenant shall affect the Permitted Uses.
(c) In the event of any request by Tenant for any consent to a proposed
assignment or sublease (other than an assignment or sublease to a Related
Party), Landlord shall have the option instead to terminate this Lease. In the
case of a proposed sublease concerning only a portion of the Premises, at
Landlord's option, such termination shall apply only to that portion of the
Premises which is intended to be the subject of the sublease. In such event,
Basic Rent and other charges hereunder shall be reduced proportionately, to take
account of the reduction in the size of the Premises which will be occupied by
Tenant following such termination. Furthermore, in the case of a sublease which
is intended to apply to only a portion of the Term, at Landlord's option, this
Lease shall be terminated only for the period of the proposed sublease, and
shall be reinstated upon the expiration of the term of the proposed sublease.
Upon any termination, as provided above, the Premises (or the portion of the
Premises to which the termination relates) shall be delivered to Landlord in the
condition in which the Premises are required to be delivered to Landlord upon
the expiration of the Term as provided herein. Following any such termination,
Landlord shall be entitled to enter into any lease or occupancy arrangement
concerning the Premises (or portion of the Premises, as the case may be) with
any party, including, without limitation, the assignee or subtenant proposed by
Tenant.
ARTICLE IX
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
------------------------------------
9.1 LANDLORD REPAIRS. Except as otherwise provided in this Lease,
Landlord agrees to make such repairs to the roof, exterior walls, floor slabs,
common areas and common electrical, heating, air conditioning and other common
mechanical systems and facilities of the Building as may be necessary to keep
them in serviceable condition, all insofar only as they affect the Premises,
except that Landlord shall in no event be responsible to Tenant for the
condition of glass in and about the Premises or the doors leading to the
Premises, or for any condition in the Premises or the Building caused by any act
or neglect of Tenant, its invitees or contractors. Landlord shall also perform
snow removal and resurfacing, repairs and replacements to the surface parking
areas and sidewalks of the Property. Landlord shall not be responsible to make
any improvements or repairs to the Building, the Land or the Office Park other
than as expressly in this Section 9.1 provided, unless expressly provided
otherwise in this Lease.
9.2 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 excepted; and shall surrender the
Premises, at the end of the Term, in such condition. Without
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limitation, Tenant shall maintain and use the Premises in accordance with all
directions, rules and regulations of all governmental agencies having
jurisdiction, and shall, at Tenant's own expense, obtain all permits, licenses
and the like required by applicable law. Tenant shall be responsible for the
cost of repairs which may be made necessary by reason of damage to common areas
in the Building and the parking areas, sidewalks, paved areas, landscaping,
lighting and other facilities on the Land or in the Office Park by Tenant,
Tenant's independent contractors, or Tenant's invitees.
(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 and shall not be responsible to
Tenant for any loss or damage that may accrue to Tenant's stock or business by
reason thereof. In the case of emergency (that is, any condition which, if not
remedied promptly, would result in additional damage or risk of damage to
persons or property), Landlord shall be permitted to act immediately, without
the requirement of demand or notice to Tenant. If Landlord makes or causes such
repairs to be made, Tenant agrees that Tenant shall forthwith, on demand, pay to
Landlord the cost thereof, with interest thereon at the Default Rate, as an
additional charge.
9.3 FLOOR LOAD - HEAVY MACHINERY.
(a) Tenant shall not place a load upon any floor in the Premises
exceeding the floor load commonly placed by office tenants in first-class office
buildings. Landlord reserves the right to prescribe the position of all heavy
business machines and mechanical equipment, including safes, which shall be
placed so as to distribute the weight thereof. 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, furniture, bulky matter or fixtures into or out of the
Building without Landlord's prior consent, which consent may include a
requirement to provide insurance in such amounts as Landlord may deem
reasonable. Tenant shall protect all elevators, sidewalks and other areas of the
Property from possible damage prior to moving any such items and shall comply
with all requirements of Landlord in connection therewith.
(b) If any such safe, machinery, equipment, freight, bulky matter or
fixture requires special handling with hoisting or other similar equipment,
Tenant agrees to employ only persons holding a Master Rigger's License to do
such work, and all work in connection therewith shall comply with applicable
laws and regulations. Any such moving shall be at the sole risk and hazard of
Tenant, and Tenant will exonerate, indemnify and save Landlord harmless against
and from any liability, loss, injury, claim or suit resulting directly or
indirectly from such moving.
9.4 BUILDING SERVICES.
(a) Landlord shall, on Business Days (except Saturdays) from 8:00 a.m. to
6:00 p.m. (and on Saturdays from 9:00 a.m. to 1:00 p.m.), furnish heating and
cooling as normal seasonal
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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 150 square feet of usable floor space.
If Tenant shall require air conditioning, heating or ventilation outside the
hours and days above specified, Landlord shall furnish such service and Tenant
shall pay to Landlord therefor such charges as may from time to time be in
effect. (Landlord's current charge for off-hours HVAC service is $35.00 per
hour. Landlord shall have the right to increase such cost from time to time, so
as to reflect fairly actual increases in Landlord's out-of-pocket costs and
expenses incurred in providing such service.) In the event Tenant introduces
into 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, or which affects the temperature
otherwise maintained by the air conditioning system, supplementary systems may,
if and as needed, at Landlord's option, be provided by Landlord, at Tenant's
expense.
Landlord and Tenant expressly acknowledge that the Premises will include a
"computer room", which computer room will require HVAC service on a 24 hour per
day basis. Accordingly, Landlord will install such computer room and a
supplemental HVAC unit (the "Supplemental Unit") serving the computer room, as
elements of Landlord's Work. The cost of maintaining the Supplemental Unit shall
be borne by Tenant. A separate "check meter" shall be installed by Landlord,
measuring Tenant's electrical usage resulting from the operation of the
Supplemental Unit. Landlord shall measure Tenant's electricity usage (as shown
on such check meter) from time to time and shall bill Tenant therefor by
applying to such usage the rates then being charged by the electrical utility
supplier) . The amount so billed shall be paid by Tenant to Landlord within
thirty days after Tenant's receipt of such bill, as additional rent hereunder.
The hourly charge for off-hours HVAC service specified above shall not be
assessed if Tenant uses only its supplemental HVAC unit during off hours.
Notwithstanding anything to the contrary set forth in the foregoing provisions
of this paragraph, for the purposes of Section 14.19, below, the Supplemental
Unit shall be deemed to constitute an element of Tenant's Removable Property.
(b) Landlord shall also provide:
(i) Hot water for lavatory purposes and cold water (at
temperatures supplied by the utility service supplying same) for drinking,
lavatory and toilet purposes. If Tenant uses water for any purposes other
than for ordinary lavatory 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 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 the event of any default in making
such payment Landlord may pay such charges and collect the same from Tenant
as an additional charge.
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(ii) Cleaning and janitorial services to the Premises, provided the
same are kept in order by Tenant, in accordance with the cleaning standards
set forth in Exhibit E attached hereto.
(iii) Passenger elevator service from the existing passenger
elevator system, for use by Tenant in common with Landlord and other
tenants of the Building.
9.5 ELECTRICITY.
(a) Landlord, in its sole discretion, will either (i) furnish electricity
to the Premises sufficient to operate normal lighting and business machines
approved by Landlord (exclusive, however, of Tenant's electrical needs for
computers and similar equipment having special power or environmental
requirements), charging Tenant's Electrical Charge for such service, to be paid
by Tenant in equal monthly installments on the same day in each month that
rental payments are due and payable hereunder (but in no event shall Landlord be
obligated to furnish electricity to supply a requirement in excess of the amount
of electricity commonly supplied to office tenants in first-class office
buildings), or (ii) elect, at any time during the Term, to cause electricity
furnished to the Premises to be separately metered, in which event all charges
for electricity consumed on the Premises will be billed directly to, and paid
for by, Tenant. The cost of any such electrical meter as well as the cost of
installation, repair and replacement shall be borne by Tenant, who shall
reimburse Landlord for the cost thereof within 30 days after receipt of written
demand therefor.
(b) Whether or not Landlord is furnishing electricity to Tenant, if
Tenant shall require electricity in excess of the quantity which is to be
furnished as provided in Section 9.5(a), Tenant shall, upon demand, reimburse
Landlord for the cost of such excess electricity. Further, if (i) in Landlord's
judgment, Landlord's facilities are inadequate for such excess requirements, or
(ii) such excess shall result in an additional burden on the Building's or the
Office Park's utility systems or additional cost on account thereof, as the case
may be, Tenant shall, upon demand, reimburse Landlord for all additional costs
related thereto. Further, if Tenant requires electricity in excess of the
quantity which is to be furnished as provided in Section 9.5(a) above, Landlord,
at the sole cost and expense of Tenant, will furnish and install such additional
wires, conduits, feeders, switchboards and appurtenances as Landlord may require
to supply such additional requirements of Tenant (if electricity therefor is
then available to Landlord without affecting the Office Park or Landlord's plans
therefor); provided that Landlord shall have no obligation to furnish any such
excess electricity unless the same shall be permitted by applicable laws and
insurance regulations and shall not cause or threaten permanent damage or injury
to the Building or the Premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations or repairs, or
interfere with or disturb other tenants or occupants of the Building or the
Office Park or interfere with Landlord's plans for the Office Park.
(c) Landlord shall furnish and install the bulbs required within the
Premises as of the Commencement Date. Thereafter, Landlord, at Tenant's expense
(consisting of Landlord's out-of-pocket costs for such replacement ballasts,
lamps and bulbs, plus a reasonable installation fee), shall replace and install
all ballasts, lamps and bulbs (including, but not limited to,
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incandescent and fluorescent) used in the Premises. All such replacements shall
be of such type, color and size as are approved by Landlord. (Operating Expenses
shall be reduced by the amount of any payment received by Landlord pursuant to
this subsection 9.5(c), or pursuant to any corresponding provision under the
Lease with any other tenant of the Building.)
(d) Landlord shall not in any way be liable or responsible for any loss,
damage or expense which Tenant may sustain or incur if the quantity, character,
or supply of electricity is changed or is no longer available or suitable for
Tenant's requirements, unless such condition results from the negligence or
other tortious act of Landlord or Landlord's employees or agents.
(e) Landlord shall have the right to discontinue furnishing electric
power to the Premises at any time upon not less than thirty (30) days' notice to
Tenant, provided Landlord shall first have arranged for the supply of power for
Tenant's use to be provided to the Premises by the public utility company
furnishing electric service to the Building and shall, at Tenant's expense,
separately meter the Premises. If Landlord exercises such right, from and after
the effective date of such termination, Landlord shall not be obligated to
furnish electricity to the Premises, and Tenant shall have no obligation to pay
any portion of Tenant's Electrical Charge.
9.6 PARKING. Landlord shall make available to Tenant parking on a
nonexclusive basis on the Land as provided in Section 2.2 of this Lease, except
that Tenant shall not have the right to make use of parking spaces (if any)
marked for visitor or handicapped parking or which are otherwise regulated by
Landlord. By its execution of this Lease, Landlord warrants and agrees that (i)
the parking facilities serving the Building currently contain parking spaces of
a number sufficient to provide at least 3.5 parking spaces for each 1000 usable
square feet contained in the Building; and (ii) Landlord will not voluntarily
undertake any action which would have the result of permanently reducing the
number of parking spaces in the parking facility serving the Building to a
number which is less than 3.5 for each 1000 usable square feet contained in the
Building.
9.7 ADDITIONAL SERVICES. In the event Tenant wishes to provide outside
services for the Premises over and above those services to be provided by
Landlord as set forth herein, Tenant shall obtain the prior written approval of
Landlord for the installation and/or utilization of such services. ("Outside
services" shall include, but shall not be limited to, cleaning services,
television, so-called "canned music", security services, catering and the like.)
In the event Landlord approves the installation and/or utilization of such
services, such installation and utilization shall be at Tenant's sole cost, risk
and expense and subject to such requirements as Landlord may from time to time
elect to impose in connection therewith.
9.8 INTERRUPTION OF SERVICES. Landlord reserves the right to curtail,
suspend, interrupt and/or stop the supply of water, sewage, electricity,
cleaning, parking and other services, and to curtail, suspend, interrupt and/or
stop the use of the roads providing access to the Building, without thereby
incurring any liability to Tenant, when necessary by reason of accident or
emergency, or for repairs, alterations, replacements or improvements in the
judgment of Landlord desirable or necessary, or when prevented from supplying
such services or use by strikes, lockouts, difficulty of obtaining materials,
accidents or any other cause beyond Landlord's reasonable control, or by laws,
orders or inability, by exercise of reasonable diligence,
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to obtain electricity, water, gas, steam, coal, oil or other suitable fuel or
power, or by any other condition not reasonably within the control of Landlord.
Except as expressly provided below, 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 or suspension. Failure or omission on the part of Landlord to
furnish any of the foregoing services or use shall not be construed as an
eviction of Tenant, actual or constructive, nor, except as expressly provided
below, entitle Tenant to an abatement of rent, nor render Landlord liable in
damages, nor release Tenant from prompt fulfillment of any of its covenants
under this Lease. If, there shall occur any interruption or reduction of
service(s), and if (i) such interruption or reduction materially interferes with
Tenant's use and enjoyment of the Premises, and (ii) such interruption or
reduction shall continue until the Abatement Date (as defined below), then,
commencing with the day immediately following the Abatement Date and continuing
until such time as such service(s) have been restored to the extent necessary to
avoid material interference with Tenant's use and enjoyment of the Premises,
Tenant shall be entitled to a reasonable reduction or abatement of rent
(consistent with the extent of interference with Tenant's activities).
Furthermore, if such material interference with Tenant's use and enjoyment of
the Premises continues until the Termination Date (as defined below) then Tenant
shall have the right to terminate this Lease (which right shall be exercised, if
at all, by notice to Landlord not later than the date on which service(s) have
been restored to the extent necessary to avoid material interference with
Tenant's use and enjoyment of the Premises). As used herein, the "Abatement
Date" shall mean (x) if the interruption or reduction results from a condition
reasonably within Landlord's control - that day which is five (5) days following
the date on which material interference with Tenant's use and enjoyment of the
Premises commences, (y) if the interruption or reduction results from a
condition not reasonably within Landlord's control, and if such condition
affects only the Building - that day which is seven (7) days following the date
on which material interference with Tenant's use and enjoyment of the Premises
commences and (z) if the interruption or reduction results from a condition not
reasonably within Landlord's control, and if such condition affects the Building
and other properties in the geographical area in which the Building is located -
that day which is twelve (12) days following the date on which material
interference with Tenant's use and enjoyment of the Premises commences. As used
herein, the "Termination Date" shall mean (x) if the interruption or reduction
results from a condition reasonably within Landlord's control - that day which
is fifteen (15) days following the date on which material interference with
Tenant's use and enjoyment of the Premises commences, (y) if the interruption or
reduction results from a condition not reasonably within Landlord's control, and
if such condition affects only the Building that day which is twenty-one (21)
days following the date on which material interference with Tenant's use and
enjoyment of the Premises commences and (z) if the interruption or reduction
results from a condition not reasonably within Landlord's control, and if such
condition affects the Building and other properties in the geographical area in
which the Building is located - that day which is twenty-eight (28) days
following the date on which material interference with Tenant's use and
enjoyment of the Premises commences.
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ARTICLE X
INDEMNITY AND INSURANCE
-----------------------
10.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to indemnify and save harmless
Landlord from and against all loss, costs, penalties and liability damage claims
of whatever nature arising from any act, omission or negligence of Tenant or
Tenant's contractors, licensees, agents, servants or employees or arising from
any death, accident, injury or damage whatsoever caused to any person, or to the
property of any person, 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 any
part of the Premises, in or about the Premises; or arising from any death,
accident, injury or damage occurring outside of the Premises but on the Property
or the office Park, where such accident, damage or injury results from any act
or omission on the part of Tenant or Tenant's agents or employees or independent
contractors or invitees or suppliers. This indemnity shall, to the maximum
extent this agreement may be made effective according to law, also extend to all
loss, costs, penalties, damage and claims of whatever nature asserted against
Landlord arising out of the use or occupancy of, passage or travel over or upon,
the Property or the Office Park by Tenant or by any person claiming by, through
or under Tenant (including, without limitation, all employees, agents,
contractors and customers of Tenant), or arising out of any delivery to or
service supplied to the Premises, or on account of or based on anything
whatsoever done on the Premises, except if the same was caused by the
negligence, fault or misconduct of Landlord, its agents, servants or employees.
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 with counsel approved by
Landlord.
10.2 LIABILITY INSURANCE. Tenant shall keep in force, at its own expense,
so long as this Lease remains in effect and during such other times as Tenant
occupies the Premises or any part thereof, comprehensive general liability
insurance including broad form endorsement contractual liability, with respect
to the Premises, with combined single limits in an amount not less than the
amount specified in Section 1.2 (and in such higher amounts as may reasonably be
required by Landlord from time to time), and so-called "All Risk" insurance on
(and in an amount not less than the full replacement value of) Tenant's personal
property, including trade fixtures, floor coverings, furniture and other
property removable by Tenant. All such insurance shall be written by companies
and on forms acceptable to Landlord. Tenant will further deposit the policy or
policies of such insurance or certificates thereof with Landlord, which policies
shall name Landlord and/or its designees) as additional named insured, and shall
also contain a provision stating that such policy or policies shall not be
cancelled or amended except after thirty 30) days written notice to Landlord. If
the nature of Tenant's business is such as to place all or any of its employees
under the coverage of local workmen's compensation or similar statutes, Tenant
shall also keep in force, at its expense, so long as this Lease remains in
effect and during such other times as Tenant occupies the Premises or any part
thereof, workmen's compensation or similar insurance affording statutory
coverage and containing statutory limits. If Tenant shall not comply with its
covenants made in this Section 10.2, Landlord may cause insurance as aforesaid
to be issued, and, in such event, Tenant agrees to pay, as additional rent and
charge, the premium for such insurance upon Landlord's demand.
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10.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to use and occupy the Premises and to
use such other portions of the Building, the Property and the Common Property as
Tenant is herein given the right to use at Tenant's own risk; and Landlord shall
have no responsibility or liability for any loss of or damage to Tenant's
Removable Property (including, without limitation, damage resulting from the
breaking, bursting, or leaking of pipes, conduits, electrical lines and the like
or from any other cause or condition) . The provisions of this Section shall be
applicable from and after the execution of this Lease and until the end of the
Term, and during such further period as Tenant may use or be in occupancy of any
part of the Premises or 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 the
Office Park or otherwise.
10.5 LANDLORD'S NEGLIGENCE. Notwithstanding anything to the contrary set
forth in the foregoing provisions of this Article X, Landlord agrees to
indemnify and hold harmless Tenant from and against all loss, cost and expense
resulting from the negligence or other tortuous act of Landlord or Landlord's
agents, servants or employees.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
-----------------------------
11.1 LANDLORD'S RIGHTS. Landlord shall have the right 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 to prospective or existing mortgagees, purchasers or
tenants of any part of the Property.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
--------------------------
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
casualty, Basic Rent payable by Tenant shall abate proportionately for the
period in which, by reason of such damage, there is substantial interference
with Tenant's uses 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 to the condition which they were in prior to
such damage (subject, however, to the provisions of applicable zoning and
building regulations). If the Premises shall be affected by any exercise of the
power of eminent domain, Basic Rent payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the loss of
use thereof suffered by Tenant.
12.2 LANDLORD'S RIGHT OF TERMINATION. If (a) the Premises or (b) the
Building or (c) the parking area serving the Building or (d) any roadway or
other facility within
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the Common Property necessary for the use and enjoyment of the Premises
(hereinafter referred to as "Critical Common Facilities") are substantially
damaged by fire or casualty (the term "substantially damaged" meaning damage of
such a character that the same cannot reasonably be expected to be repaired
within sixty (60) days from the time that repair work would commence), or if
access to the Property through the Common Property is, or if (i) any part of the
Building or (ii) a substantial part of the parking area serving the Building or
(iii) Critical Common Facilities are, taken by any exercise of the right of
eminent domain, then 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 90 days after the occurrence of
such casualty or the effective date of such taking, whereupon this Lease shall
terminate 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. If this Lease shall not be terminated pursuant to
Section 12.2, Landlord shall thereafter use due diligence to restore the
Premises to proper condition for Tenant's use and occupation, provided that
Landlord's obligation shall be limited to the amount of insurance proceeds or
condemnation awards made available to Landlord therefor. If, for any reason,
such restoration shall not be substantially completed within five (5) months
after the occurrence of the casualty or taking (which five-month period may be
extended for such periods of time as Landlord is prevented from proceeding with
or completing such restoration for any cause beyond Landlord's reasonable
control). 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 cease and
come to an end without further liability or obligation on the part of either
party unless, within such 30-day period, Landlord substantially completes such
restoration. Such right of termination 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 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 prosecuting in any separate condemnation proceedings 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 and shall be instituted in a proceeding separate and apart from
Landlord.
ARTICLE XIII
DEFAULT
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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 (each herein referred to as a "Default of Tenant") shall
happen:
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(i) Tenant shall fail to pay the Basic Rent, Escalation Charges or
other charges hereunder when due and such failure shall continue for seven
(7) full business days after notice to Tenant from Landlord that the
required payment was not made when due; 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 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 property, 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 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 property 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);
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 this Lease shall come to an end on the date of such notice, as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Term; and Tenant will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter provided.
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(b) If this Lease shall have been terminated as provided in this Article,
or if any execution or attachment shall be issued against Tenant or any of
Tenant's property 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 resulting from a Default of Tenant,
Tenant shall pay the Basic Rent, Escalation Charges and other sums payable
hereunder up to the time of such termination, and thereafter Tenant, until what
would have been the end of the Term 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 Landlord, as liquidated current damages, the Basic Rent,
Escalation 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 for the corresponding period, after deducting all expenses in
connection with such reletting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, attorneys' fees, advertising
costs, expenses of employees, alteration costs and expenses of preparation for
such reletting. Tenant shall pay such current damages to Landlord monthly on the
days on which Basic Rent would have been payable hereunder if this Lease had not
been terminated.
(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, Tenant shall pay to
Landlord upon demand an amount equal to the excess, if any (discounted to
present value by application of a reasonable interest rate chosen by Landlord),
of the Basic Rent, Escalation 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 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 if the same remained in effect, over the then fair net rental
value of the Premises for the same period.
(e) In case of any Default by Tenant, following any re-entry, termination
and dispossession by summary proceedings 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 (in the exercise of reasonable business judgment) considers
advisable and necessary to re-let the same and (ii) may make such alterations,
repairs and decorations in the Premises as Landlord in its sole judgment
considers advisable and necessary for the purpose of re-letting the Premises;
and the making of such alterations, repairs and decorations shall not operate or
be construed to release Tenant from liability hereunder as aforesaid. Landlord
shall use commercially reasonable efforts to re-let the Premises. However, so
long as Landlord uses such commercially reasonable efforts, 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
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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 conditions of this
Lease.
(f) The happening of any of the events described in paragraphs (a)(iv) or
(a)(v) of this Section 13.1 with respect to either of the parties who,
collectively, constitute Tenant shall constitute a Default of Tenant hereunder.
Furthermore, the obligations of such parties hereunder shall be joint and
several; and Landlord shall have the right to seek and obtain recovery for any
obligation of Tenant hereunder from either of such parties without being
required to seek or obtain recovery from the other party.
(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 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 in the
performance of any of Landlord's obligations hereunder unless and until Landlord
shall have failed to perform such obligation within thirty (30) days, or such
additional time as is reasonably required to correct any such default, after
notice by Tenant to Landlord specifying wherein Landlord has failed to perform
any such obligations. After receipt of any such notice, Landlord shall commence
the curing of any such default with reasonable promptness.
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 invalidate or increase the rate of
property or liability insurance on the Premises or the Property above the
standard rate applicable to premises being occupied for the Permitted Uses; and
Tenant agrees that, in the event that Tenant shall do any of the foregoing,
Tenant will promptly pay to Landlord, on demand, any such increase resulting
therefrom, which shall be due and payable as 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 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
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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. 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. The delivery of keys to any employee of
Landlord or to Landlord's agent or any employee thereof shall not operate as a
termination of this Lease or a surrender of the Premises.
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 other sums and charges due hereunder 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 peaceably and quietly have, hold and enjoy
the Premises for the Term without hindrance or molestation by anyone claiming
by, through or under Landlord, subject, however, to the rights of the holders of
all mortgages affecting the property from time to time; provided, however,
Landlord may at any time and from time to time; without the same constituting a
breach of Landlord's covenant of quiet enjoyment or an actual or constructive
eviction, and without incurring any liability to Tenant or otherwise affecting
any of Tenant's obligations under this Lease, make such changes, alterations,
additions, improvements, repairs or replacements in or to the interior and
exterior of the Building (including the Premises) and the fixtures and equipment
thereof, and in or to the Property and the Office Park (including, without
limitation, landscaping, the construction of additional structures, signs and
buildings, the relocation of access roads situated within the Office Park and
the redesign or temporary closing of parking areas and other common facilities
and roads serving the Building and the Office Park) as Landlord may deem
necessary or desirable, and change the arrangement and/or location of entrances
or passageways, doors and doorways, corridors, elevators, or other public parts
of the Building, provided further, however, that there be no unreasonable
interference with the conduct of Tenant's business or obstruction of access to
the Premises by Tenant Nothing contained in this Section 14.3 shall be deemed to
relieve Tenant of any duty, obligation or liability with respect to making any
repair, replacement or improvement or complying with any law, order or
requirement of any governmental or other authority.
14.4 LANDLORD'S LIABILITY.
(a) Tenant specifically agrees to look solely to Landlord's then equity
interest in the Property at the time owned by Landlord, for recovery of any
judgment from Landlord; it being specifically agreed that neither Landlord
(original or successor) nor any partner, beneficiary, shareholder, officer,
director, employee or any other party holding any interest in or being
affiliated with Landlord shall ever 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 might otherwise have to obtain injunctive
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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) In no event shall Landlord ever be liable for any indirect or
consequential damages suffered by Tenant from whatever cause.
14.5 RULES AND REGULATIONS. Tenant shall abide by reasonable rules and
regulations from time to time established by Landlord (including, without
limitation, the Rules and Regulations annexed hereto as Exhibit B), it being
agreed that such rules and regulations will be established and applied by
Landlord in a nondiscriminatory 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 (having in mind the location and nature of the
Premises and the nature of Tenant's business activities). 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. Landlord expressly reserves the right to waive application of any rule or
regulation as to any tenant.
14.6 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums
under this Lease designated as an additional charge, additional rent or
Escalation Charge or any other charge hereunder, Landlord shall have the same
rights and remedies as Landlord has hereunder for failure to pay Basic Rent.
14.7 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 shall be
enforced to the fullest extent permitted by law.
14.8 PROVISIONS BINDING, ETC. Except as herein 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 (or as to which
Landlord's consent is not required), pursuant to Article VIII hereof.
14.9 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 recordable form 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
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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.
14.10 NOTICES. Whenever, by the terms of this Lease, notice shall or may
be given either to Landlord or to Tenant, such notice shall be in writing and
shall be sent by registered mail, return receipt requested, postage prepaid, or
by prepaid Federal Express or other similar overnight delivery service:
If intended for Landlord, addressed to Landlord at Landlord's Address (or
to such other address or addresses as may from time to time hereafter be
designated by Landlord by like notice); and
If intended for Tenant, addressed to Tenant at the Premises (or to such
other address or addresses as may from time to time hereafter be designated
by Tenant by like notice); provided, however, that, prior to the
Commencement Date, notices intended for Tenant shall be addressed to
Tenant's Original Address.
All such notices shall be effective upon receipt by or tender for delivery to
the intended recipient thereof.
14.11 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 execution and delivery by both Landlord and
Tenant. Except for the provisions of any written instrument or agreement
executed substantially concurrently herewith by Landlord and Tenant, all
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and this Lease expressly supercedes
any proposals or other written documents executed prior 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.
14.12 PARAGRAPH HEADINGS. The paragraph headings in this instrument are
for convenience and reference only, and the words contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
14.13 SUBORDINATION; ATTORNMENT.
(a) Tenant's rights under this Lease are and shall always be subordinate
to the operation and effect of any lease of land only or of land and buildings
in a sale-leaseback transaction, and any mortgage, deed of trust or other
security instrument now or hereafter placed upon the Property, or any part or
parts thereof, by Landlord. This clause shall be self-operative, and no further
instrument of subordination shall be required. In confirmation thereof, Tenant
shall execute such further assurances as may be requisite. In addition, Tenant
agrees to attorn to any successor in interest to Landlord whether by purchase,
foreclosure, sale in lieu of foreclosure, power of sale, termination of any
lease of land only or land and buildings in a sale-
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leaseback transaction or otherwise, if so requested or required by such
successor in interest, and Tenant agrees, upon demand, to execute such agreement
or agreements in confirmation of such attornment as may be requested by
Landlord. However, Tenant's obligation of subordination and attornment with
respect to any mortgage hereafter encumbering the Property shall be conditioned
upon the execution by the holder of such mortgage of an agreement, in the form
then commonly used by such holder, to the effect that, notwithstanding any
foreclosure of such mortgage or other exercise by the holder of its rights
thereunder, Tenant shall be permitted to continue to occupy the Premises and
exercise its rights hereunder, so long as there shall occur no condition which,
pursuant to the terms of this Lease, would have permitted Landlord to terminate
this Lease or otherwise interfere with Tenant's rights hereunder. Landlord or
its mortgagee, any ground lessor or other similar secured party, may, at its
option, make this Lease superior to any such mortgage, ground lease or other
security instrument by giving Tenant ten (10) days prior written notice and no
other documentation shall be necessary to effect such change.
(b) If any person shall succeed to all or part of Landlord's interest in
the Premises upon the exercise of any remedy provided for in any mortgage of the
Premises now or hereafter recorded, (i) Tenant shall attorn to and recognize
such person as Tenant's landlord as above provided and this Lease shall continue
in full force and effect as a direct lease between such person and Tenant as
fully and with the same force and effect as if this Lease had originally been
entered into by such person and Tenant, except that such person shall not be
liable for any act or omission of Landlord occurring prior to such person's
succession to title nor be subject to any offset, defense or counterclaim
accruing prior to such person's succession to title, nor be bound by any
modification of this Lease or any waiver, compromise, release or discharge of
any obligation of Tenant hereunder unless such modification, waiver, compromise,
release or discharge shall have been specifically consented to in writing by the
mortgagee under said mortgage, nor be bound by any payment of Basic Rent or
Escalation Charges which Tenant has paid more than one month in advance (other
than deposits in the nature of security deposits) , and (ii) such person and
each person succeeding to its interest in the Premises shall not be liable for
any warranty or guaranty of Landlord under this Lease and shall be liable for
the performance and observance of the other covenants and conditions to be
performed and observed by Landlord under this Lease only with respect to the
period during which such person shall own such interest.
(c) Concurrently with any notification from Tenant to Landlord concerning
any default by Landlord in the performance of its obligations hereunder, Tenant
shall provide a copy of such notice to any mortgagee or ground lessor of the
Property of which Tenant has received notice. Thereafter, Tenant will not
exercise any right to terminate this Lease on account of such default unless
such mortgagee or ground lessor has failed, within a reasonable time after its
receipt of such notice from Tenant, to remedy such default on behalf of
Landlord.
(d) Neither receipt of a collateral assignment of Landlord's interest
hereunder nor receipt of transfer of title to the Property when followed by a
ground lease back to Landlord shall be deemed to constitute an assumption by the
mortgagee or transferee (as the case may be) of the obligations of Landlord
hereunder, unless such obligations shall be expressly assumed, in writing, by
such mortgagee or transferee.
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(e) If, in connection with obtaining construction, interim or permanent
financing for the Property, the lender shall request reasonable modifications in
this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder, or affect Tenant's rental
and other monetary obligations hereunder, the Term or any of the other
"business" terms contained herein, or materially adversely affect the leasehold
interest hereby created or Tenant's rights hereunder.
14.14 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE.
(a) With reference to any assignment 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 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.
(b) In the event of any transfer of title to the Property by Landlord,
Landlord shall thereafter be entirely freed and relieved from the performance
and observance of all covenants and obligations hereunder. Furthermore, Landlord
and each succeeding holder of Landlord's interest under this Lease shall be
responsible only for defaults hereunder arising during or prior to the period
during which such party holds Landlord's interest hereunder.
14.15 STATUS REPORT. Tenant agrees that, at any time and from time to time
at reasonable intervals, within ten (10) days after written request by Landlord,
Tenant will execute, acknowledge and deliver to Landlord and/or to Landlord's
designee, mortgagee or other similar secured party as may be designated by
Landlord, a certificate stating that this Lease is unmodified and in full force
and effect (or that the same is in full force and effect as modified, listing
the instruments of modification), the dates to which rent and other charges have
been paid, and whether or not, to the best of Tenant's knowledge, Landlord is in
default hereunder (and if so, specifying the nature of the default), and
containing such other statements as to the status of matters under this Lease as
Landlord may require, it being intended that any such statement delivered
pursuant to this paragraph may be relied upon by any mortgagee, ground lessor or
assignee of Landlord's interest in the Premises.
The failure of Tenant to execute and deliver such certificate shall
constitute a default hereunder, in which event, in addition to any other
remedies which Landlord may have under this Lease as a result of Tenant's
default, Landlord is hereby authorized, as attorney and agent of Tenant, to
execute such certificate; and in such event Tenant hereby confirms and ratifies
any such certificate executed by virtue of the power of attorney hereby granted.
14.16 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
required, to pay such sums or do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or neglect
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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 Landlord forthwith
upon demand all such sums, together with interest thereon at a rate (the
"Default Rate") equal to the greater of (i) 3% over the "prime rate" in effect
from time to time at Bank of Boston and (ii) 18% per annum, as an additional
charge. (However, in no event shall the Default Rate be greater than the highest
rate of interest which may lawfully be charged.) Any payment of Basic Rent,
Escalation Charges or other sums payable hereunder not paid when due shall, at
the option of Landlord, bear interest at the Default Rate from the due date
thereof, which interest shall be payable forthwith upon demand by Landlord.
14.17 HOLDING OVER. Any holding over by Tenant after the expiration or
earlier termination of the Term shall be treated as a daily tenancy at
sufferance at a rate equal to 1 1/2 times the sum of the Basic Rent and
Escalation Charges herein provided (prorated on a daily basis), and shall
otherwise be on the terms and conditions set forth in this Lease as far as
applicable.
14.18 WAIVER OF SUBROGATION. Landlord shall cause each insurance policy
carried by it insuring the Building against loss by fire or any of the
casualties covered by standard extended coverage to be written in such a manner
as to provide that the insurer waives all right of recovery by way of
subrogation against Tenant in connection with any loss or damage covered by the
policy. Tenant shall cause each insurance policy carried by it insuring the
Premises as well as the contents thereof, including trade fixtures and personal
property, against loss by fire or any of the casualties covered by standard
extended coverage to be written in such a manner as to provide that the insurer
waives all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by the policy. Neither party hereto
shall be liable to the other for any loss or damage caused by fire or any of the
casualties covered by standard extended coverage, which loss or damage is
covered by the insurance policies maintained by the other party, provided that
such policies are not invalidated by such waiver; and provided further that, if
either party shall be unable to obtain the waiver of subrogation required by
this Section without additional premium therefor, then unless the party claiming
the benefit of such waiver shall agree to pay such party for the cost of such
additional premium within thirty (30) days after notice of the statement setting
forth such requirement and the amount of additional premium, such waiver shall
be of no force and effect between such party and the claiming party; and
provided further that neither party hereto shall be freed of liability to the
extent of any deductible under the other party's insurance, or to the extent to
which such other party's loss is greater than the coverage provided by the
insurance policy to which the waiver of subrogation required by this Section
applies.
14.19 SURRENDER OF PREMISES. Upon the expiration or earlier termination of
the Term, 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, excepting only
ordinary wear and use and damage by fire or other casualty for which, under
other provisions of this Lease, Tenant has no responsibility of repair or
restoration. Tenant shall remove all of Tenant's Removable Property and, to the
extent specified by Landlord, all alterations and additions made by Tenant and
all partitions wholly within the Premises unless installed initially by Landlord
in preparing the Premises for Tenant's occupancy pursuant to
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Article IV; and shall repair, to the satisfaction of Landlord, any damage to the
Premises or the Building (or any other portion of the Office Park) caused by
such removal. Any of Tenant's Removable Property which shall remain in the
Building or on the Premises after the expiration or termination of the Term
shall be deemed conclusively to have been abandoned, and either may be retained
by Landlord as its property or may be stored by Landlord or disposed of in such
manner as Landlord may see fit, at Tenant's sole cost and expense.
14.20 BROKERAGE. Tenant warrants and represents that Tenant has dealt with
no broker in connection with the consummation of this Lease other than the
Broker(s) (if any) specified in Section 1.2 (the "Broker"), and, 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, provided that Landlord shall be solely responsible for the payment of
brokerage commissions to the Broker.
14.21 (INTENTIONALLY OMITTED.)
14.22 WAIVER OF JURY TRIAL. Landlord and Tenant hereby waive trial by jury
in any action, proceeding or counter claim brought by either of the parties
hereto against the other, on or in respect to any matter whatsoever arising out
of or in any way connected with this Lease, the relationship of Landlord and
Tenant hereunder, Tenant's use or occupancy of the Premises and/or any claim of
injury or damages.
14.23 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts.
14.24 (INTENTIONALLY OMITTED.)
14.25 TERMINATION OF THE EXISTING LEASE. As used herein, "Existing Lease"
means the lease, dated June 30, 1992, by and between Landlord as Landlord and
Molten Metals, Inc. ("Molten Metals"), as Tenant. The Premises which are the
subject of the Existing Lease include the Premises.
It is a condition of the obligations of Landlord and Tenant under this
Lease that the Existing Lease be terminated. Accordingly, following the
execution of this Lease, Landlord shall attempt to reach agreement with Molten
Metals concerning the termination of the Existing Lease, on such terms and
conditions as Landlord shall deem to be acceptable. At such time as such
agreement has been reached, Landlord shall so notify Tenant (the date of such
notification being referred to herein as the "Existing Lease Termination Date").
If, however, the Existing Lease Termination Date has not occurred within seven
(7) days following the date of execution of this Lease, then this Lease shall
terminate automatically, the security deposit hereunder shall be refunded to
Tenant and the parties hereto shall have no further rights or obligations
hereunder.
By its execution of this Lease, Landlord represents and warrants that it
believes in good faith that an agreement in principle has been reached with
Molten Metals concerning the termination of the Existing Lease, and that
Landlord knows of no reason why such an agreement
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will not be finalized prior to the expiration of the seven (7) day period
referred to in the immediately preceding paragraph.
14.26 LANDLORD'S CONTRIBUTION TOWARD TENANT'S RELOCATION EXPENSES. Landlord
shall make a contribution toward the costs and expenses incurred by Tenant in
relocating to the Premises from Tenant's existing premises at 281 Winter Street,
Waltham, MA, subject to the following terms and conditions: Following the
Commencement Date, Tenant shall deliver to Landlord bills, invoices and the
like, demonstrating the amount of Tenant's payments to third parties in
connection with the relocation of its furniture, fixtures and personal property
from Tenant's existing premises to the Premises and in connection with all other
activities related to Tenant's relocation to the Premises (including, by way of
example but without limitation, the cost of obtaining new stationery and the
cost of installing new telecommunications and data processing equipment).
Following Landlord's receipt of such bills, invoices and the like, Landlord
shall deliver to Tenant a contribution toward the costs and expenses reflected
therein, such contribution to be in an amount equal to the smaller of (i) the
costs and expenses reflected in such bills, invoices and the like and (ii)
Landlord's Maximum Contribution toward Tenant's Relocation Expenses, as
specified in Section 1.2, above. At Landlord's option, such contribution shall
be effected by crediting toward satisfaction of any monetary obligations of
Tenant hereunder which are then due but unpaid.
14.27 TENANT'S OPTION TO EXTEND. Tenant not then being in default
hereunder, and this Lease then being in full force and effect, shall have the
option to extend the Term for one (1) period of five (5) years (such period of
extension being referred to herein as the "New Term", which New Term shall
commence on the day following the expiration of the Initial Term), on all of the
terms and conditions set forth herein except for adjustment of Basic Rent, as
provided below. Such option shall be exercised in the following manner:
(a) Not later than six (6) months prior to the then current date of
expiration of the Term (the "Expiration Date"), Tenant shall provide
Landlord with notice (the "Intention Notice") of Tenant's potential desire
to extend the Term. If Tenant fails to deliver the Intention Notice on or
before six (6) months prior to the Expiration Date, Tenant shall have no
further right to extend the Term.
(b) If Tenant delivers the Intention Notice in a timely manner,
then, not later than five (5) months prior to the Expiration Date, Landlord
shall notify Tenant, in writing, of Landlord's estimate ("Landlord's
Estimate") of the fair market rental value for the Premises with respect to
the New Term.
(c) Within twenty-one (21) days after Tenant's receipt of
Landlord's Estimate, Tenant shall inform Landlord if Tenant disputes
Landlord's Estimate. Tenant's failure to notify Landlord prior to the
expiration of such twenty-one (21) day period shall be deemed to constitute
a waiver of Tenant's right to dispute Landlord's Estimate, and, if the Term
is extended for the New Term, Basic Rent for the New Term will be deemed to
have been established as the greater of (i) the Basic Rent in effect
immediately prior to the Expiration Date and (ii) Landlord's Estimate.
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(d) If Tenant notifies Landlord of Tenant's desire to dispute
Landlord's Estimate, Landlord and Tenant shall each select an independent
appraiser, and the appraisers selected by Tenant and Landlord shall
mutually agree upon a third appraiser (except that, if they cannot so agree
within 14 days, then the third appraiser shall be chosen by, and in
accordance with the then-existing rules of, the American Arbitration
Association). Each such appraiser shall be a reputable independent real
estate appraiser with at least ten (10) years of experience in the
appraisal of rental office space in the metropolitan Boston area. If either
party fails to appoint its appraiser within twenty (21) days after Tenant
notifies Landlord of Tenant's desire to dispute Landlord's Estimate (such
party being referred to herein as the "failing party"), then the other
party may serve notice on the failing party requiring the failing party to
appoint its appraiser within ten (10) days of the giving of such notice,
and if the failing party does not respond by appointment of its appraiser
within said ten (10) day period, then the appraiser appointed by the other
party shall be the sole appraiser, whose determination of the fair market
rental value for the Premises shall be binding and conclusive upon Landlord
and Tenant. The costs and expenses of each appraiser shall be borne by the
party which appointed such appraiser (except that, if only one appraiser is
used to determine the fair market rental value of the Premises, pursuant to
the immediately preceding sentence, the costs and expenses of such
appraiser shall be shared equally by Tenant and Landlord); and the costs
and expenses of the third appraiser shall be shared equally by Tenant and
Landlord.
The appraisers so chosen shall then attempt to reach agreement as to
the fair market rental value for the Premises for the New Term. If the
appraisers are unable to agree unanimously upon the fair market rental
value for the Premises, then the fair market rental value for the Premises
shall be deemed to be the average of the three values proposed by the
appraisers (provided, however, that if the lowest proposed value is less
than 90% of the second-to-lowest proposed value, the lowest proposed value
will be deemed to be 90% of the second-to-lowest proposed value; and if the
highest proposed value is, more than 110% of the second-to-highest proposed
value, the highest proposed value will be deemed to be 110% of the
second-to-highest proposed value). In determining the fair market rental
value for the Premises, the appraisers shall consider, without limitation,
the lay-out and condition of the Premises, the age, condition and
geographical location of the Building, the Escalation Base Years specified
in Section 1.2 and such provisions in this Lease as may afford specific
benefit to Tenant.
Upon determination of the fair market rental value for the Premises by the
appraisers), as provided above, the Basic Rent for the New Term shall be
deemed to be the greater of (i) the Basic Rent in effect immediately prior
to the Expiration Date and (ii) the fair market rental value for the
Premises established by the appraiser(s).
(e) Tenant shall have the right to exercise its option to extend
the Term by notice to Landlord not later than that date (the "Last Notice
Date") which is the later to occur of (i) thirty (30) days after the date
on which the Basic Rent for the New Term has been established and (ii) four
(4) months prior to the Expiration Date. If Tenant shall fail to exercise
its option to extend the Term prior to the Last Notice Date, Tenant shall
have no further right to extend the Term and this Lease shall expire as of
the Expiration Date.
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However, notwithstanding such failure by Tenant, Landlord shall have the
option (which option shall be exercised, if at all, by notice to Tenant not
later than thirty (30) days after the Last Notice Date), (i) to extend the
Term for the New Term, for Basic Rent which is the Basic Rent in effect
immediately prior to the Expiration Date, or (ii) if the Last Notice Date
is a date which is later than four (4) months prior to the Expiration Date,
to extend the Term for a period equal to the number of days between the
date which is four (4) months prior to the Expiration Date and the Last
Notice Date, for Basic Rent which is the Basic Rent in effect immediately
prior to the Expiration Date.
(f) If the Term shall be extended for the New Term, as provided
above, the Basic Rent payable with respect to the New Term shall be in the
amount determined above. If the Basic Rent payable with respect to the New
Term has not been established prior to the Expiration Date, Tenant shall
continue to pay Basic Rent on the basis of Basic Rent in effect immediately
prior to the Expiration Date. At such time as the new Basic Rent has been
established, (i) all future payments of Basic Rent will be in the amount so
established and (ii) if the new Basic Rent is higher than the Basic Rent
previously paid by Tenant, Tenant shall make an appropriate additional
payment allocable to the period prior to establishment of the new Basic
Rent, to the end that Tenant will be required to pay the new Basic Rent
with respect to the entire New Term.
14.28 TENANT'S RIGHT OF FIRST OFFER. As used herein the term "Offer Space"
shall mean certain space on the same floor in the Building as the Premises, all
as outlined on Exhibit "H", annexed. Subject to the terms and conditions set
forth below, Tenant shall have a right of first offer to add the Offer Space to
the Premises; provided, however, that (a) such right shall not be exercisable if
this Lease is not then in full force and effect, or if Tenant is then in default
in the performance of any of its obligations under this Lease, (b) said right
shall not be severed from this Lease nor separately assigned, mortgaged or
transferred, (c) said right may not be exercised if any other portion of the
Premises is then subject to a sublease, (d) such right shall not be available at
any time within twenty-four (24) months of the date of expiration of the Initial
Term unless Tenant irrevocably exercises its option to extend the Term for the
New Term, either prior to or concurrently with the exercise of its rights under
this Section 14.26, and (e) such right shall not be available at any time within
twenty-four (24) months of the date of expiration of the New Term. Subject to
the foregoing qualifications, at any time when Landlord desires to offer the
Offer Space for rental by third parties, Landlord shall notify Tenant (by
"Landlord's Notice") of the Basic Rent which Landlord would be willing to accept
for the rental of the Offer Space (including a statement as to the method of
computing the Operating Expense Base and the Tax Base (collectively, the
"Bases") for determination of operating Expense Excess and Tax Excess applicable
to the offer Space) for a term equal to the remainder of the Term of this Lease,
and assuming that Landlord will deliver possession of the Offer Space in a
condition substantially similar to the condition of the Premises immediately
following completion of Landlord's Work. Tenant shall have the right to accept
Landlord's offer by notice to Landlord not later than 14 days following Tenant's
receipt of Landlord's Notice. If Tenant shall accept Landlord's offer, then
Landlord shall improve the Offer Space in a manner consistent with Landlord's
initial improvements to the Premises, and, from and after the Delivery Date
(i.e. the date on which Landlord's improvements are substantially completed and
the Offer Space is delivered to
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Tenant), this Lease shall automatically be deemed to have been amended in the
following respects:
(i) Except as expressly provided in (iii), below, the Premises
shall be deemed to include the Offer Space for all purposes;
(ii) Basic Rent shall be increased by the Basic Rent specified in
Landlord's Notice, and Tenant's Electrical Charge shall be increased by a
proportion corresponding to the proportionate increase in the size of the
Premises; and
(iii) If the Bases specified in Landlord's Notice are identical to
the Bases specified in Section 1.2, above, then Tenant's Tax and Operating
Percentage shall be increased by a proportion corresponding to the
proportionate increase in the size of the Premises. If, however, the Bases
specified in Landlord's Notice are different from the Bases specified in
Section 1.2, then Tenant's Tax and Operating Percentage shall be computed
separately for the Offer Space, and, thereafter, the computations under
Articles V and VI shall be made separately with respect to the Premises
originally demised hereunder (using the Bases and Tenant's Tax and
Operating Percentage specified in Section 1.2) and the Offer Space (using
the Bases specified in Landlord's Offer and Tenant's Tax and Operating
Percentage as computed by reference to the Offer Space).
If, however, Tenant shall not accept Landlord's offer, then (subject to the
next succeeding sentence hereof), for a period of nine (9) months following the
date of Landlord's Notice, Landlord shall be permitted to enter into a lease
concerning the Offer Space with any third party. However, except if a condition
exists which would prevent Tenant from exercising its right of first offer (as
provided in the first paragraph of this Section), Landlord shall not be
permitted to enter into a lease concerning the offer Space for Basic Rent which
is less than 90% of the Basic Rent specified in Landlord's Notice unless (i)
Landlord first notifies Tenant (by "Landlord's Re-Offer Notice") of the Basic
Rent which is then being offered to Landlord in connection with the proposed
lease of the Offer Space (including the Bases applicable to the Offer Space
under such offer) and (ii) Tenant fails to notify Landlord, within fourteen (14)
days after Tenant's receipt of Landlord's Re-Offer Notice, of Tenant's desire to
add the Offer Space to the Premises, for the Basic Rent specified in Landlord's
Re-Offer Notice. If Tenant shall so notify Landlord prior to the expiration of
such fourteen (14) day period, then the Offer Space shall be improved by
Landlord as provided above, and, from and after the Delivery Date, Basic Rent
payable by Tenant with respect to the Offer Space shall be the Basic Rent
specified in Landlord's Re-Offer Notice (equitably adjusted in order to reflect
(x) costs anticipated to be incurred by Landlord in order to reflect the
build-out and finish required by the offeror, as compared to the build-out and
finish which Landlord is required to provide to Tenant, and (y) Landlord's
election (if it shall so elect), for administrative convenience, to use, as the
Bases applicable to the Offer Space, the Bases specified in Section 1.2, rather
than the Bases specified in Landlord's Re-Offer Notice), and Tenant's Tax and
Operating Percentage shall be increased by a proportion corresponding to the
proportionate increase in the size of the Premises (or, if the Bases specified
in Landlord's Re-Offer Notice are different from the Bases specified in
Section 1.2, and if Landlord elects to apply
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the Bases specified in Landlord's Re-Offer Notice to the Offer Space following
addition of the Offer Space to the Premises, then Tenant's Tax and Operating
Percentage shall be computed separately with respect -to the Premises as
originally demised hereunder and the Offer Space, and the computations provided
in Articles V and VI shall be made separately with respect to the Premises as
originally demised hereunder and the Offer Space). (In determining whether Basic
Rent then being offered by a third party is such as to require Landlord's
Re-Offer Notice, Landlord shall have the right to make equitable adjustments in
order to reflect (x) costs anticipated to be incurred by Landlord in order to
reflect the build-out and finish required by the offeror, as compared to the
build-out and finish which Landlord is required to provide to Tenant, and (y)
differences between the Bases included in the proposed agreement between
Landlord and the offeror and the Bases specified in Landlord's Notice.)
Tenant's right of first offer, as provided in this Section 14.28, shall be
subordinated to the existing right of first offer in favor of Private Healthcare
Systems, Inc. That is, Tenant's right of first offer with respect to the Offer
Space shall be exercisable only if Private Healthcare Systems, Inc. fails to
exercise its right of first offer with respect to the Offer Space.
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:
Leasecomm Corporation
By: /s/ Peter R. Bleyleben /s/ Desmond Taljaard
----------------------------- -----------------------------
Its President Desmond Taljaard, Trustee
Hereunto duly authorized
/s/ Howard Friedman
-----------------------------
Howard Friedman, Trustee
As Trustees as aforesaid, and
not individually
Boyle Leasing Technologies, Inc.
By: /s/ Peter R. Bleyleben
-----------------------------
Its President
Hereunto duly authorized
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Exhibit A
[Diagram of Level 4 of 950 Winter Street]
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EXHIBIT B
CORPORATE CENTER OFFICE LEASE
FOR
WINTER STREET, WALTHAM, MASSACHUSETTS
RULES AND REGULATIONS
RULES AND REGULATIONS. Tenant agrees to observe the rights reserved to
Landlord in the Lease and agrees, for itself, its employees, agents, clients,
customers, invitees, contractors and guests, to comply with the following rules
and regulations and with such reasonable modifications thereof and additions
thereto as Landlord may make, from time to time, for the Building.
(a) Any sign, lettering, curtain, picture, notice, or advertisement
within Tenant's Premises (including but not limited to Tenant identification
signs on doors to the Premises) which is visible outside of the Premises shall
be installed at Tenant's cost and in such manner, character and style as
Landlord may approve in writing. No sign, lettering, picture, notice or
advertisement shall be placed on any outside window or in any position so as to
be visible from outside the Building or from any atrium or lobbies of the
Building.
(b) Tenant shall not use the name of the Building or use pictures or
illustrations of the Building in advertising or other publicity, without prior
written consent of Landlord.
(c) Tenant, its customers, invitees, licensees, and guests shall not
obstruct sidewalks, entrances, passages, courts, corridors, vestibules, halls,
elevators and stairways in and about the Building. Tenant shall not place
objects against glass partitions or doors or windows or adjacent to any open
common space which would be unsightly from the Building corridors or from the
exterior of the Building, and will promptly remove the same upon notice from
Landlord.
(d) Tenant shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electrical or electronic devises or
other devices that emit sound waves or are dangerous to other tenants and
occupants of the Building or that would interfere with the operation of any
device or equipment or radio or television broadcasting or reception from or
within the Building or elsewhere, or with the operation of roads or highways in
the vicinity of the Building and shall not place or install any projections,
antennae, aerials or similar devices inside or outside of the Premises.
(e) Tenant shall not make any room-to-room canvass to solicit business
from other tenants in the Building and shall not exhibit, sell or offer to sell,
use, rent or exchange any item or services in or from the Premises unless
ordinarily embraced within Tenant's use of the Premises as specified in its
Lease.
(f) Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the Building's
heating and air conditioning and
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shall refrain from attempting to adjust any controls. Tenant shall keep public
corridor doors closed.
(g) Door keys for doors in the Premises will be furnished at the
commencement of the Lease by Landlord. Tenant shall not affix additional locks
on doors and shall purchase duplicate keys only from Landlord. When the Lease is
terminated, Tenant shall return all keys to Landlord and will provide to
Landlord the means of opening any safes, cabinets or vaults left in the
Premises.
(h) Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured.
(i) Peddlers, solicitors and beggars shall be reported to the office of
the Building or as Landlord otherwise requests.
(j) Tenant shall not install nor operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without the written permission of Landlord.
(k) No person or contractor not employed or approved by Landlord shall be
used to perform window washing, cleaning, decorating, repair or other work in
the Premises.
(l) Tenant may not (without Landlord's approval therefor, which approval
will be signified on Tenant Plans submitted pursuant to the Lease) and Tenant
shall not permit or suffer anyone to:
(1) Cook in the Premises.
(2) Place vending or dispensing machines of any kind in or about
the Premises;
(3) At any time sell, purchase or give away, or permit the sale,
purchase or gift of, food in any form;
(m) Tenant shall not:
(1) Use the Premises for lodging, manufacturing or for any immoral
or illegal purposes.
(2) Use the Premises to engage in the manufacture or sale of, or
permit the use of any spirituous, fermented, intoxicating or alcoholic
beverages on the Premises.
(3) Use the Premises to engage in the manufacture or sale of, or
permit the use of any illegal drugs on the Premises.
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(n) In no event shall any person bring into the Building inflammables
such as gasoline, kerosene, naphtha and benzene or explosives or firearms
(except as may be used in normal security procedures) or any other article of
intrinsically dangerous nature. If by reason of the failure of Tenant to comply
with the provisions of this paragraph any insurance premium payable by Landlord
for all or any part of the Building shall at any time be increased above normal
insurance premiums for insurance not covering the items aforesaid, Landlord
shall have the option to either terminate the Lease or to require Tenant to make
immediate payment for the whole of the increased insurance premium.
(o) Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations and building rules, and shall not directly or
indirectly make any use of the Premises which may be prohibited thereby or which
shall be dangerous to person or property or shall increase the cost of insurance
or require additional insurance coverage.
(p) If Tenant desires signal, communication, alarm or other utility or
service connection installed or changed, the same shall be made at the expense
of Tenant, with approval and under direction of Landlord.
(q) Bicycles shall not be permitted in the Building in other than
Landlord-designated locations.
(r) Tenant shall cooperate and participate in all security programs
affecting the Building.
(s) In any event Landlord allows one or more tenants in the Building to
do any act prohibited herein, Landlord shall not be precluded from denying any
other tenant the right to do any such act.
(t) Tenant, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish, paper,
articles, or objects of any kind whatsoever outside the doors of the Premises or
in the corridors or passageways of the Building. No animals or birds shall be
brought or kept in or about the Building.
(u) Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion, tends to impair the reputation of the Building or
its desirability for offices, and, upon written notice from Landlord, Tenant
will refrain from or discontinue such advertising.
(v) Tenant shall not mark, paint or drill into, or in any way deface any
part of the Building or the Premises. No boring, driving of nails or screws,
cutting or stringing wires shall be permitted, except with the prior written
consent of Landlord and as Landlord may direct. Tenant shall not install any
resilient tile or similar floor covering in the Premises except with the prior
approval of Landlord. The use of cement or other similar adhesive materials is
expressly prohibited.
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(w) Landlord shall have the right to limit or control the number and
format of listings on the main Building directory.
(x) Tenants use of delivery areas, loading areas and freight elevators
shall be scheduled in advance with Landlord and shall be subject to the
reasonable approval of Landlord.
(y) Entry and exiting to and from the office Park and use of all roads,
driveways and walkways in the office Park shall be subject to such traffic and
use rules and regulations as Landlord may promulgate and provide to Tenant from
time to time.
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EXHIBIT C
[Diagram of Floor 1 of 950 Winter Street]
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EXHIBIT D
BUILDING STANDARD TENANT IMPROVEMENTS
Landlord shall install, in accordance with Approved Tenant's Plans, the
following materials and work (all to building standard unless otherwise
expressly stated) in the initial preparation of the premises for Tenant's
occupancy.
I. DRYWALL
A. Furnish and install inside layer of GWB at perimeter walls, taped and
ready for paint.
B. Enclose interior columns with GWB satisfactory to meet code and
fireproofing classification.
C. Interior partitioning to the extent of 1 linear foot per 15 s.f. of
useable area. Standard partitioning shall consist of 2 1/2" metal studs 16" o.c.
with one layer 5/8" GWB each side. Partition will extend from the floor to 6"
above the acoustic ceiling.
D. Demising partitions shall extend from the floor to the underside of
the structure above. They will consist of 2 1/2" metal studs 16" o.c. with one
layer 5/8" GWB each side. Partitions will be fully insulated to minimize noise
transmission. Demising partitions will be furnished by Landlord at common tenant
walls.
II. DOORS, FRAMES & HARDWARE
A. Standard Tenant Entrance unit shall consist of a full height
(3'0" x 8'4"), solid core, 1 3/4" plain sliced red oak door installed in a
pressed metal sidelight frame. Each door will receive two (2) pairs of spring
loaded hinges, a lever handled mortised lockset and a door stop. Sidelight will
be (1'6" x 8'0").
B. Standard Tenant Interior doors will be installed to the extent of one
door unit per every 40 l.f. of allowable interior partitioning. A standard
interior door unit shall consist of a solid core, 1 3/4", full height
(3'0" x 8'6") pressed metal frame. Standard hardware shall consist of two pair
of hinges, a lever handled passage set and a doorstop. Hardware shall be
manufactured by Almet, Sargent, Yale & Towne or equal.
III. CEILINGS
Accoustical ceilings shall be 3/4", 2' x 2' natural fissured tile in a
"Fineline" grid or equal, as manufactured by Celotex, Armstrong or equal.
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IV. FLOORING
A. Carpet may be selected from a range of Building Standard colors. In
the event Tenant wishes to upgrade from the Building Standard, an allowance of
$15/s.y. installed, will be applied towards their selection.
B. 4" vinyl/rubber cove base will be provided on both sides of Tenant's
allowable interior partitioning plus all perimeter and core walls.
V. PAINTING
A. All wall surfaces shall receive one finish coat of Zolotone or
Plextone paint over one prime coat or equal as Landlord may elect.
B. Doors will have a natural finish with one (1) coat of polyurethane
over one coat of clear primer/sealer.
C. Door frames shall be finished in a building standard bronzetone with
one (1) coat of enamel paint over one coat of primer.
D. Landlord will provide the above up to the allowable quantities for
walls & doors.
VI. ELECTRICAL
A. Lighting shall consist of recessed, fluorescent (2' x 4') fixtures
with parabolic lens and return air louvre. Landlord shall provide one such
fixture or every 85 s.f. of useable area.
B. Wall switches of the single pole quiet type shall be provided to the
extent of one per every 350 s.f. of useable area.
C. Duplex receptacles shall be provided to the extent of 1/125 s.f. of
useable area. Not more than 10% of the allowed receptacles may be located in the
floor.
D. Landlord will make necessary provisions for telephone outlets to the
extent of one outlet for every 200 s.f. of useable area. Nor more than 10% of
the allowed telephone boxes may be located in the floor. Installation of wiring
and coordination of same is Tenant's responsibility.
VII. HVAC - The building heating and air conditioning will be provided
roof mounted air handling units with individual VAV boxes treating tenant
spaces.
A. Landlord will provide one such VAV box for every 1500 s.f. of useable
area complete with thermostatic controls.
B. Landlord will install all perimeter ductwork and diffusers plus one
supply air diffuser for every 450 s.f. of useable area.
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VIII. SPRINKLERS
A. Landlord will install chrome pendant or recessed sprinkler heads to
the extent of one head per 170 s.f. of useable area.
IX. PLUMBING
Wet stacks will be available on the typical office floor containing hot and
cold water, waste and vent. Tenant dishwasher, disposal, and sink shall be
connected at points set forth in the Approved Tenant's Plan by Landlord at
Landlord's expense.
X. SUN CONTROL
Landlord will furnish and install vertical blinds, at all perimeter
windows, in color and style selected by Landlord and Landlord's Architect and
acceptable to Tenant.
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EXHIBIT E
BAY COLONY CORPORATE CENTER
BUILDING SERVICES/CLEANING SPECIFICATIONS
I. Premises
A. Daily (Monday through Friday, Holidays excluded)
1) Empty and clean all waste receptacles and ashtrays and remove
waste material from the premises.
2) Sweep and dust mop all uncarpeted areas using a dust treated
mop.
3) Hand dust and wipe clean with treated cloths all furniture,
telephones, files, fixtures and window sills as necessary.
4) Spot vacuum or sweep all carpeted areas.
5) Upon completion of cleaning, all lights will be turned off and
doors locked leaving the premises in an orderly condition.
B. Weekly
1) Vacuum all rugs and carpeted areas.
2) Remove finger marks from entrance doors and light switches.
3) Wipe clean and polish bright metal work as necessary.
C. Quarterly - All high dusting not reached in daily cleaning to
include:
1) Dusting of all pictures, frames, charts, graphs and similar wall
hangings.
2) Dusting of all vertical surfaces such as walls, doors and ducts.
3) Dusting of all exposed pipes, air conditioning louvres and high
moldings.
II. Public Lobbies & Elevators
A. Daily (Monday through Friday) Holidays excluded)
1) All stone, ceramic tile and other unwaxed flooring swept and or
damp mopped.
2) Vacuum and spot clean all carpeted areas.
3) Wash or sweep clean all floor entry mats.
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4) Empty and clean all ashtrays urns.
5) Wash and clean all water fountains and coolers.
6) Wipe clean all metal work and glass as required.
7) Clean elevators, wash or vacuum floors and wipe clean all metal,
glass and/or wood.
8) Check and clean all building stairwells as required.
B. Monthly
1) Wax and or spray buff all non-carpeted flooring areas.
2) Dust and clean all lobby walls and ventilating louvres.
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EXHIBIT F
DESCRIPTION OF LAND
All that certain tract, piece or parcel of land situate in the City of
Waltham, County of Middlesex, Commonwealth of Massachusetts, more particularly
described as follows:
Lot 1 as shown on Plan 41218-B on file with the Engineer's Office of the
Middlesex South Registry District of the Land Court.
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EXHIBIT G
DESCRIPTION OF OFFICE PARK
All those certain tracts, pieces or parcels of land situate in the City of
Waltham, County of Middlesex, Commonwealth of Massachusetts, more particularly
described as follows:
Lots 1, 2, 3 and 4 as shown on Plan 41218-B on file with the Engineer's
office of the Middlesex South Registry District of the Land Court.
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EXHIBIT H
[Diagram of Level 4 of 950 Winter Street]
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SECOND AMENDMENT TO LEASE
Reference is made to the following facts, documents and definitions:
A. Landlord - Desmond Taljaard and Howard Friedman, Trustees of London &
Leeds NDAI Bay Colony I Realty Trust.
B. Tenant - Leasecomm Corporation and Boyle Leasing Technologies, Inc.
C. Lease - That certain Lease, dated as of April 14, 1994, by and between
Landlord as Landlord and Tenant as Tenant. Capitalized terms which are
used herein but which are not otherwise defined herein shall have the
meanings ascribed to such terms in the Lease.
D. New Premises - Certain premises on the fourth floor of the Building, as
more fully shown on Exhibit A, annexed. The New Premises contain 4,617
rentable square are feet.
E. Landlord's Work - See Paragraph 1, below.
F. Effective Date - The earlier to occur of (a) that date on which the New
Premises are ready for occupancy as provided in subparagraph 1.B, below
and (b) that date on which Tenant commences occupancy of the New
Premises for the Permitted Uses.
G. Landlord and Tenant wish to memorialize the agreement which has been
reached concerning the addition of the New Premises to the Premises
originally demised pursuant to the Lease.
Now therefore, for one ($1.00) dollar and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the
parties hereto, Landlord and Tenant hereby agree that the Lease shall be (and it
hereby is) amended in the following respects:
1. A. TENANT'S PLANS. As used herein, "Tenant's Floor Plans" shall mean the
plans for the New Premises specified on Exhibit B, annexed; "Tenant's
Plans" shall mean architectural plans and working drawings for the
preparation of the New Premises, based upon Tenant's Floor Plans and
incorporating the Building Standard Tenant Improvements specified on
Exhibit C, annexed; and "Landlord's Work" shall mean the work shown on
Tenant's Plans. Following the execution of this Amendment to Lease,
Landlord shall, at its sole cost and expense, prepare Tenant's Plans.
Within five (5) business days after Tenant's receipt of Tenant's Plans,
Tenant shall either approve Tenant's Plans or notify Landlord of any
respect(s) in which Tenant requests that Tenant's Plans be modified.
(Tenant's failure to respond prior to the expiration of such five (5)
business day period shall be deemed to constitute approval of Tenant's
Plans as submitted by Landlord.) Promptly following Tenant's approval of
Tenant's Plans (which approval shall not be unreasonably withheld or
delayed), Landlord shall, at its sole cost and expense (but subject to the
provisions of subparagraph D, below) , undertake Landlord's Work.
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B. LANDLORDS AND TENANT'S WORK; DELAYS.
(a) The New Premises shall be deemed ready for occupancy when (i) the
work described in Tenant's Plans, together with the common facilities for
access and services to the New Premises, has been completed except for
items of work and adjustment of equipment and fixtures which can be
completed after occupancy has been taken without causing substantial
interference with Tenant's use of the New Premises (i.e. so-called "punch
list items"), and (ii) Tenant has received Landlord's certificate of the
completion of the New Premises in accordance with clause (i) of this
sentence, along with a Certificate of occupancy, issued by the appropriate
governmental authority, confirming that the New Premises may lawfully be
used for the uses intended under the Lease. Landlord shall complete as soon
as conditions practicably permit all items of work excepted by said clause
(i) and Tenant shall not use the New Premises in such manner as will
unreasonably interfere with such completion.
Landlord shall permit Tenant access for installing furnishings in portions
of the New Premises when it can be done without material interference with
remaining work. In connection with such access, Tenant covenants (i) to
cease promptly upon request by Landlord any activity or work during any
period which, in Landlord's judgment, shall interfere with or delay
Landlord's prosecution or completion of Landlord's Work at the earliest
possible date, (ii) that Tenant shall comply promptly with all procedures
and regulations prescribed by Landlord from time to time for coordinating
such work and activities with any other activity or work in the New
Premises or the Building, (iii) that such access shall be at the sole risk
of Tenant and shall be deemed to be a license, (iv) that Tenant shall
indemnify and hold harmless Landlord from and against any and all claims
arising from, or claimed to arise from or out of the performance of any
work by or on behalf of Tenant in the Building or the New Premises, or
which may arise by reason of any matter collateral thereto, and from and
against any and all claims arising from, or claimed to arise from, any
negligence, act or failure to act of Tenant, its contractors, decorators,
servants, agents or employees or for any other reason whatsoever arising
out of Tenant's access to or being in the New Premises or in connection
with Tenant's work, (v) that Tenant shall not employ or permit the
employment of any contractor, mechanic or laborer, or permit any materials
in the New Premises, if the use of such contractor, mechanic or laborer
would, in Landlord's opinion, create any difficulty, strike or
jurisdictional dispute with other contractors, mechanics or laborers
employed by Tenant, Landlord or others, or would in any way disturb,
interfere with or delay any work being performed by Landlord or any other
tenant or their respective contractors, and (vi) to pay any loss or
additional expense caused to Landlord by any delay in the completion of
Landlord's Work resulting from Tenant's access and Tenant's work. Such
access by Tenant shall be deemed to be pursuant to all the provisions of
the Lease and Tenant shall comply therewith, except that the obligation to
pay rent shall not commence until the Effective Date. No material or
equipment shall be incorporated in the New Premises in connection with the
making of such installations which is subject to any lien, charge, mortgage
or other encumbrance of any kind whatsoever, or subject to any conditional
sale or other similar or dissimilar title retention agreement. If Tenant
fails to comply with any
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of the foregoing obligations, then, in addition to all other rights and
remedies hereunder, Landlord may by notice to Tenant require Tenant to
cease the performance of such activity and Tenant's work until Landlord's
Work has been completed.
(b) Tenant agrees that if the New Premises would have been ready for
occupancy at an earlier date but for Tenant's Delay (as hereinafter
defined), then at Landlord's option, for the purposes of determining the
Effective Date, the New Premises shall be deemed to have been ready for
occupancy on the date on which the New Premises would have been ready for
occupancy if such delay(s) had not occurred. As used herein, the term
"Tenant's Delay" means any delay in the completion of Landlord's Work
resulting solely and directly from the occurrence of any of the following:
(i) Tenant's request for changes in Tenant's Plans subsequent to
the original approval of Tenant's Plans;
(ii) Tenant's failure to approve Tenant's Plans and authorize
Landlord to proceed within the time required in subparagraph A,
above;
(iii) Tenant's request for materials, finishes or installations
other than Building Standard Tenant Improvements;
(iv) The performance or delay by a person, firm or corporation
employed by Tenant and/or the completion or delay of the work of said
person, firm or corporation;
(v) Any change by Tenant in any air conditioning requirement, or
in any information furnished by Tenant;
(vi) The fact that work other than Building Standard Tenant
Improvements requires lead time to obtain particular materials or
parts or additional time to perform in excess of the time required
for the corresponding Building Standard Tenant Improvements;
(vii) Installation of Tenant's telephone and/or communications
systems;
(viii) Any direction by Tenant that Landlord delay in proceeding with
a segment of Landlord's Work in anticipation of a possible change or
for any other reason;
(ix) Any delay by Tenant in delivering the estimated Tenant's
Immediate Contribution, as provided in subparagraph D, below, if (but
only if) the estimated Tenant's Immediate Contribution exceeds
$25,000; or
(x) Any other act or omission of Tenant, its agents, employees,
contractors or subcontractors.
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(c) Landlord agrees to use reasonable diligence to cause the New Premises
to be ready for occupancy on or before January 1, 1995 (the "Anticipated
Delivery Date"). However, except as expressly set forth in the remainder of
this subparagraph (c), Landlord shall not be subject to any liability for
failure to give possession on said date, nor shall such failure affect the
validity of this Amendment to Lease. If the Effective Date has not occurred
within thirty (30) days following the Anticipated Delivery Date, then, as
Tenant's sole remedy on account thereof, Tenant shall receive a rent credit
(commencing on the Effective Date) equal to the product of $309.90 (i.e.
the daily increase in Basic Rent resulting from the addition of the New
Premises to the Premises) multiplied by the number of days in the period
beginning on the 31st day following the Anticipated Delivery Date and
ending on the day immediately preceding the Effective Date (inclusive).
(d) All of 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, at Landlord's option, be
performed by Landlord's general contractor or by contractors or workmen
first approved by Landlord. If Landlord shall require that Tenant retain
Landlord's contractor, Landlord's contractor shall provide its services at
costs reasonably comparable to the charges imposed by other reputable
contractors in the Metropolitan Boston area; and Landlord shall provide
supervisory services (for which Tenant shall pay to Landlord a reasonable
supervisory fee, except that Landlord shall not be entitled to receive a
supervisory fee in connection with Landlord's initial improvements to the
New Premises, as provided in subparagraph A, above). If Landlord shall not
require that Tenant retain Landlord's contractor, Landlord shall not
unreasonably withhold or delay its approval of contractors and workmen
chosen by Tenant. 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 of 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 of the
contractor's and subcontractor's employees and comprehensive public
liability insurance and property damage insurance with such limits as
Landlord may reasonably require (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 New 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
New Premises or the Property and immediately to discharge any such liens
which may so attach and, at the request of Landlord, to deliver to Landlord
security satisfactory to Landlord against liens arising out of the
furnishing of such labor and materials. Upon completion of any work done on
the New 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,
materialman, architect, engineer or other party which furnished labor,
materials or other services in connection with such
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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.
C. WORKMANSHIP AND APPROVAL. The work required of Landlord pursuant to
this Paragraph 1 shall be deemed approved by Tenant except for items
specified in a written notice delivered to Landlord on or before the Defect
Notice Date. As used herein, the "Defect Notice Date" shall mean: (i) with
respect to cosmetic damage to the New Premises (e.g. broken windows,
scratches on walls and floors and the like) - the date on which Tenant
commences occupancy of the New Premises (or, if earlier, the Effective
Date); (ii) with respect to defective conditions which could reasonably
have been discovered through a careful visual inspection of the New
Premises, but which do not constitute cosmetic damage (e.g. missing
hardware, uncompleted items and the like) - that day which is fourteen (14)
days following the Effective Date; and (iii) with respect to defective
conditions which could not reasonably be discovered through a careful
visual inspection of the New Premises (i.e. "latent defects") - that day
which is three (3) months following the Effective Date.
D. CONTRIBUTIONS TO LANDLORD' S WORK. As used herein the following terms
shall have the following meanings:
(a) Landlord's Construction Costs - All out-of-pocket costs and expenses
incurred by Landlord in connection with the prosecution of Landlord's Work,
including, without limitation, all "hard costs", contractors' fees, permit
fees, insurance premiums and the like.
(b) Landlord's Contribution - The product of $7.00 and the number of
rentable square feet contained in the New Premises.
(c) Landlord's Loan - The smaller of (i) the product of $5.00 and the
number of rentable square feet contained in the New Premises and (ii) the
excess of Landlord's Construction Costs over Landlord's Contribution.
(d) Tenant's Immediate Contribution - The amount (if any) by which
Landlord's Construction Costs exceed the sum of Landlord's Contribution and
Landlord's Loan.
Incident to the submission of proposed Tenant's Plans (and any modification
thereof), Landlord shall submit to Tenant a statement of the estimated
Landlord's Construction Costs. Such estimate shall be used to determine
whether it is expected that any Tenant's Immediate Contribution will be
required. If it is estimated that a Tenant's Immediate Contribution will be
required, then the estimated amount of Tenant's Immediate Contribution
shall be paid by Tenant to Landlord concurrently with Tenant's approval of
Tenant's Plans and its authorization to Landlord to proceed with Landlord's
Work. Such payment shall be used by Landlord to satisfy Landlord's
Construction Costs if (and to the extent that) Landlord's Construction
Costs actually exceed the product of $12.00 and the number of rentable
square feet contained in the New Premises. If, during the course of
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Landlord's Work, Tenant shall request a change in Tenant's Plans, Landlord
shall notify Tenant of Landlord's good faith estimate of the anticipated
increase (if any) in Landlord's Construction Costs, Landlord's Loan and
Tenant's Immediate Contribution (all as defined above) resulting from such
change. (The increase in Landlord's Construction Costs resulting from such
change shall be comprised of the actual increase in out-of pocket costs and
expenses incurred by Landlord as a result of such change, plus an
additional charge of five (5%) percent of such increased out-of-pocket
costs and expenses, serving as reimbursement to Landlord for additional
administrative costs and supervisory fees arising on account of such
change.) If Tenant shall thereafter authorize such change, then, incident
to the delivery of such authorization, Tenant shall deliver to Landlord a
payment in the amount of the anticipated increase in Tenant's Immediate
Contribution.
At such time as Landlord's Work has been completed, a final determination
of the total Landlord's Construction Costs, Landlord's Loan and Tenant's
Immediate Contribution shall be made. An appropriate adjustment (by
additional payment or reimbursement) shall be made to correct for any
difference between the actual Tenant's Immediate Contribution and all
payments on account of Tenant's Immediate Contribution previously received
by Landlord. Landlord shall then determine the monthly payment which would
be required under a fully amortizing direct reduction loan (i.e. a loan
having equal monthly payments allocable first to interest and then to
principal) having an initial principal amount equal to Landlord's Loan, a
term equal to the number of full calendar months then remaining in the
Initial Term (starting with the first full calendar month which begins, at
least 15 days following Landlord's notice to Tenant of its determination)
and a fixed interest rate of 9% per annum. Commencing with the first day of
the first full calendar month beginning at least 15 days following
Landlord's notice of the determination provided in the immediately
preceding sentence (and thereafter on the first day of each succeeding
calendar month during the Initial Term), Tenant shall pay to Landlord, as
additional rent under the Lease, the monthly payment so determined.
Tenant's monthly payment on account of Landlord's Loan shall not be reduced
or abated, notwithstanding any reduction or abatement of Tenant's other
rental obligations under the Lease. Furthermore, if, for any reason, the
Lease is terminated prior to the expiration of the Initial Term, then, not
later than such termination date, Tenant shall pay to Landlord the entire
unamortized amount of Landlord's Loan, along with any accrued but unpaid
interest thereon.
2. From and after the Effective Date, the Premises shall be deemed to consist
of both the Premises as heretofore demised pursuant to the Lease and the
New Premises. Accordingly, from and after the Effective Date, the Lease
shall be deemed to have been amended in the following respects:
(a) "Size of Space" and "Tenant's Rentable Area" shall mean 21,656
square feet.
(b) "Tenant's Tax and Operating Percentage" shall mean 7.923%.
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(c) Basic Rent shall be the sum of (x) Basic Rent as originally
specified in the Lease and (y) $113,116.50 per annum.
Accordingly, the Basic Rent heretofore specified in the Lease
shall be increased by $9426.38 per month.
(d) Tenant's Electrical Charge shall be $18,407.60 per annum.
Tenant's Electrical Charge consists of the sum of (x) $14,483.15
previously payable under the Lease and (y) $3,924.45 per annum
payable as a result of the inclusion of the New Premises in the
Premises.
If Tenant exercises its option to extend the Term for the New Term (as provided
in Section 14.27 of the Lease), then the fair market rental value of the
Premises shall be determined by reference to the entire Premises, including the
New Premises.
3. As used herein, the term "New Offer Space" shall mean certain space in the
Building, all as outlined on Exhibit "H-1", annexed. Tenant shall have a
right of first offer to add the New Offer Space to the Premises. Such right
of first offer shall be upon all of the terms and conditions set forth in
Section 14.28 of the Lease, which terms and conditions are incorporated
herein by this reference as if fully set forth herein.
4. Tenant warrants and represents that Tenant has dealt with no broker in
connection with the consummation of this Amendment to Lease other than
Fallon, Hines & O'Connor and RSI, Inc. (collectively, the "Broker"), and,
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, provided that Landlord shall be solely
responsible for the payment of brokerage commissions to the Broker.
5. Except as expressly set forth herein, the Lease shall be and remain in full
force and effect, in accordance with its terms.
Executed under seal, as of the day of the 18th day of November 1994.
/s/ Desmond Taljaard
--------------------------------
Desmond Taljaard, Trustee
/s/ Howard Friedman
--------------------------------
Howard Friedman, Trustee
As Trustees as aforesaid and not
individually
LEASECOMM CORPORATION
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By: /s/ Peter R. Bleyleben
--------------------------------
Its President
Hereunto duly authorized
BOYLE LEASING TECHNOLOGIES, INC.
By: /s/ Peter R. Bleyleben
--------------------------------
Its President
Hereunto duly authorized
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EXHIBIT
[Floor plan of 950 Winter Street]
71
EXHIBIT H
[Diagram of Level 4 of 950 Winter Street]
72
THIRD AMENDMENT TO LEASE
REFERENCE is made to the following facts, documents and definitions:
A. Original Landlord - Desmond Taljaard and Howard Friedman, Trustees of
London & Leeds NDAI Bay Colony I Realty Trust.
B. Tenant - Leasecomm Corporation and Boyle Leasing Technologies, Inc.,
collectively.
C. Lease - That certain Lease, dated as of April 14, 1994, by and between
Original Landlord as Landlord and Tenant as Tenant, as heretofore amended by
various documents, including, without limitation, (i) that certain Amendment to
Lease, dated as of November 18, 1994, and (ii) that certain Second Amendment to
Lease, dated as of February 28, 1995. Capitalized terms which are used herein
but which are not otherwise defined herein shall have the meanings ascribed to
such terms in the Lease.
D. Landlord - Shorenstein Management, Inc., as Trustee for SRI Two Realty
Trust. Landlord is the current holder of Original Landlord's interest under the
Lease.
E. Original Premises - The premises which are currently demised to Tenant
pursuant to the Lease.
F. New Premises - The premises shown on Exhibit A-1, annexed, containing
13,195 rentable square feet. (Tenant expressly acknowledges that it has had a
full opportunity to measure both the New Premises and the Building, and that the
rentable area of the New Premises shall remain 13,195 square feet
notwithstanding any subsequent measurement by Tenant.)
G. Effective Date - The earliest to occur of (x) the date on which the
Work is substantially completed, (y) 52 days following the date on which
Landlord delivers possession of the Premises to Tenant and (z) the date on which
Tenant commences occupancy of the New Premises for the Permitted Uses. At such
time as the Effective Date has occurred, Landlord and Tenant shall enter into a
written instrument, confirming the exact date of the Commencement Date.
H. Rent Commencement Date The 31st day following the Effective Date.
I. Landlord and Tenant wish to memorialize the agreement which has been
reached concerning various amendments to the Lease.
NOW, THEREFORE, for $1.00 and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties hereto,
Landlord and Tenant hereby agree that the Lease shall be (and it hereby is)
amended in the following respects:
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1. "Landlord" shall mean Shorenstein Management, Inc., as Trustee for SRI Two
Realty Trust.
2. "Landlord's Address" shall mean:
c/o The Shorenstein Company
200 Park Avenue
New York, NY 10166
Copies to: The Shorenstein Company
555 California Street, 49th Floor
San Francisco, CA 94104
Attention: Legal Department
3. "Landlord's Representative" shall mean:
William S. Elder
c/o The Shorenstein Company
200 Park Avenue
New York, New York 10166
4. "Landlord's Construction Representative" shall mean Richard Coleman.
5. "Tenant' s Construction Representative" shall mean Toozie Fuller.
6. A. As used herein, "Tenant's Plans" shall mean architectural plans and
working drawings for the preparation of the New Premises, incorporating
materials and improvements of quality and amount at least equal to
Landlord's Building Standard Tenant Improvements; and the "Work" shall mean
the work shown on Tenant's Plans. Following the execution of this Third
Amendment to Lease, Tenant shall prepare Tenant's Plans. Tenant shall then
submit the proposed Tenant's Plans for approval by Landlord, by delivering
a copy of the proposed Tenant's Plans to (x) The Shorenstein Company, 1000
Winter Street, Waltham, MA 02154, Attn: Building Manager, and (y) The
Shorenstein Company, 200 Park Avenue, New York, NY 10166, Attn: Richard
Coleman. Landlord agrees that (i) Landlord will act diligently to attempt
to comment upon or approve the proposed Tenant's Plans within five (5)
business days following the date on which both addressees have received the
proposed Tenant's Plans and (ii) in any event, Landlord's approval of
Tenant's Plans shall not be unreasonably withheld or delayed.
Promptly following Landlord's approval of Tenant's Plans, Tenant shall
retain a general contractor approved by Landlord to perform the Work
(Landlord agreeing hereby that such approval
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shall not be unreasonably withheld or delayed; and Landlord further
agreeing hereby that approval shall automatically be deemed to have been
given with respect to the following general contractors: (i) J.J. Accaro,
(ii) Lee Kennedy & Company, (iii) Heritage Builders and (iv) Payton
Construction Company).
Any material modification of Tenant's Plans (and any change of the general
contractor retained by Tenant) during the course of the Work shall be
subject to Landlord's approval, which approval process shall be governed by
the foregoing provisions of this subparagraph A.
B. Promptly following the execution of this Third Amendment to Lease,
Landlord shall deliver the New Premises to Tenant, the New Premises to be
then broom clean and free of furniture and other personal property. Except
as expressly provided in the immediately preceding sentence, Tenant shall
accept possession of the New Premises in a totally "as-is" condition, and
Landlord shall have no obligation to alter, renovate or improve the New
Premises in any respect. Tenant covenants (i) that Tenant shall comply
promptly with all procedures and regulations prescribed by Landlord from
time to time for coordinating the Work with any other activity or work in
the Building, (ii) that Tenant's occupancy of the New Premises shall be at
the sole risk of Tenant, (iii) that Tenant shall indemnify and hold
harmless Landlord from and against any and all claims arising from, or
claimed to arise from or out of, the performance of the Work by or on
behalf of Tenant, or which may arise by reason of any matter collateral
thereto, and from and against any and all claims arising from, or claimed
to arise from, any negligence, act or failure to act of Tenant, its
contractors, decorators servants, agents or employees or for any other
reason whatsoever arising out of Tenant's access to or being in the New
Premises or in connection with the Work, and (iv) that Tenant shall not
employ or permit the employment of any contractor, mechanic or laborer, or
permit any materials in the New Premises, if the use of such contractor,
mechanic or laborer would, in Landlord's opinion, create any difficulty,
strike or jurisdictional dispute with other contractors, mechanics or
laborers employed by Tenant, Landlord or others, or would in any way
disturb, interfere with or delay any work being performed by Landlord or
any other tenant or their respective contractors. No material or equipment
shall be incorporated in the New Premises which is subject to any lien,
charge, mortgage or other encumbrance of any kind whatsoever, or subject to
any conditional sale or other similar or dissimilar title retention
agreement. If Tenant fails to comply with any of the foregoing obligations,
then, in addition to all other rights and remedies under the Lease,
Landlord may by notice to Tenant require Tenant to cease the performance of
such activity and the Work until the offending condition has been remedied.
Before the Work is started, Tenant shall: secure all licenses and permits
necessary therefor; deliver to Landlord a statement of the names of all of
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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 of 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, with respect to
public liability insurance, the amount specified in Section 1.2 of the
Lease (all such insurance to be written in companies approved by Landlord
and insuring Landlord and I Tenant as well as the contractors), and to
deliver to Landlord certificates of all such insurance. Subject to the
provisions of Paragraph 7, below, Tenant agrees to pay promptly when due
the entire cost of any work done on the New 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 New Premises or the Property and immediately to discharge any
such liens which may so attach and, at the request of Landlord, to deliver
to Landlord security satisfactory to Landlord against liens arising out of
the furnishing of such labor and materials. 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,
materialman, 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.
C. All construction work required or permitted by this Third Amendment to
Lease shall be done in a good and workmanlike manner and in compliance with
all applicable laws and lawful ordinances, regulations and orders of
governmental authority and insurers of the Property. Each party may (but
shall have no responsibility to) inspect the work of the other at
reasonable times (and without causing interference with on-going
construction activities) and shall promptly give notice of observed
defects. Each party authorizes the other to rely, in connection with design
and construction, upon approval and other actions on the party's behalf by
the Construction Representative of the party, or any person named in
substitution or addition by notice to the party relying.
7. As used herein, the "Cost of Construction" shall mean all costs and
expenses incurred in connection with demolition of existing improvements in
the New Premises and performance of the Work, including, without
limitation, insurance costs, permit fees, payments to contractors, payments
to architects and other design professionals (including, without
limitation, payments for the preparation of Tenant's Plans) and all other
"hard" and "soft" costs (Landlord expressly agreeing hereby that no
supervisory fee shall be charged by Landlord in
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connection with the performance of the Work); and "Landlord's Construction
Contribution" shall mean the smaller of (i) the Cost of Construction and
(ii) $131,000.00.
At such time as the Work has been completed, Tenant shall submit to
Landlord paid bills, invoices and the like, reflecting the Cost of
Construction. Within 21 days following Landlord's receipt of such
materials, Landlord shall pay to Tenant Landlord's Construction
Contribution. (However, (x) any payment previously made by Landlord to any
third party for any cost included in the Cost of Construction shall be
credited toward satisfaction of Landlord's Construction Contribution, and
(y) at Landlord's option, such payment to Tenant shall be effected by
application toward satisfaction of any monetary obligation of Tenant which
is then due but unpaid.)
8. From and after the date on which the New Premises are delivered to Tenant,
the New Premises (and, Tenant's use and occupancy thereof) shall be
governed by the provisions of the Lease; and, accordingly, from and after
such date, the Premises shall be deemed to consist of the Original Premises
and the New Premises. However, until the Effective Date, Tenant's
obligations on account of Basic Rent and Escalation Charges shall be only
those obligations arising with respect to the original Premises (as
heretofore provided in the Lease).
9. From and after the Effective Date, Tenant's obligations on account of Basic
Rent and Escalation Charges shall consist of the sum of (i) the obligations
arising with respect to the Original Premises, plus (ii) the obligations
arising under the Lease with respect to the New Premises. Tenant's
obligations arising with respect to the New Premises shall consist of the
following:
(a) For the period beginning on the Effective Date and ending on the day
immediately preceding the Rent Commencement Date, Basic Rent arising
in connection with the New Premises shall be $00.00.
(b) For the period beginning on the Rent Commencement Date and ending on
June 30, 1997, Basic Rent arising in connection with the New Premises
shall be $323,277.50 per annum (i.e., $26,939.79 per month, and
proportionately at such rate for any partial calendar month).
(c) For the period beginning on July 1, 1997 and ending on June 30, 1998,
Basic Rent arising in connection with the New Premises shall be
$329,875.00 per annum (i.e., $27,489.58 per month).
(d) For the period beginning on July 1, 1998 and ending on the current
date of expiration of the Term, Basic Rent arising in connection with
the New Premises shall be $343,070.00 per annum (i.e., $28,589.17 per
month).
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(e) For the purpose of determining the Tax Excess and the Operating
Expense Excess arising in connection with the New Premises, Tenant's
Tax and Operating Expense Percentage (determined in the manner
provided in the Lease) shall be deemed to be 4.80%, the Operating
Expense Base shall be deemed to be Operating Expenses incurred on
account of the calendar 1996 Operating Year and the Tax Base shall be
deemed to be Taxes incurred on account of the July 1, 1995 - June 30,
1996 fiscal tax year.
(f) Tenant's Electrical Charge arising in connection with the New
Premises shall be $11,215.75 per annum.
10. (Intentionally Omitted]
11. Tenant shall not use any portion of the Premises for the use, generation,
treatment, storage or disposal of "oil", "hazardous material", "hazardous
wastes", or "hazardous substances" (collectively, the "Materials"), as such
terms are defined under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., as amended,
the Resource Conversation and Recovery Act of 1976, 42 U.S.C. Section 9601
et seq., as amended, and the regulations promulgated thereunder, and all
applicable state and local laws, rules and regulations (now or hereafter in
effect), including, without limitation, Massachusetts General Laws,
Chapters 21C and 21E (the "Superfund and Hazardous Waste Laws"), without
the express written prior consent of Landlord and, if required, its
mortgagees, and then only to the extent that the presence of the Materials
is (i) properly licensed and approved by all appropriate governmental
officials and in accordance with all applicable laws and regulations and
(ii) in compliance with any terms and conditions stated in said prior
written approvals by Landlord or its mortgagees. Tenant shall promptly
provide Landlord with copies of all notices received by it, including,
without limitation, any notice of violations, notice of responsibility or
demand for action from any federal, state or local authority or official in
connection with the presence 6 Materials in or about the Premises or any
other portion of the Property. In the event of any release of Materials
upon the Premises or any other portion of the Property, or upon adjacent
lands, if caused by Tenant or its agents, representatives or those claiming
under Tenant, as defined in the Superfund and Hazardous Waste Laws, Tenant
shall promptly remedy the problem in accordance with all applicable laws
and requirements and shall indemnify, defend and hold Landlord harmless
from and against all loss, costs, liability and damage, including
attorneys' fees and the cost of litigation, arising from the presence or
release of any Materials caused by Tenant or its agents, representatives or
those claiming under Tenant in or on the Premises or any other portion of
the Property, or upon adjacent lands. With respect to any release of
Materials brought (or caused to be brought) upon the Premises by Tenant,
such release shall automatically be deemed to have been caused by Tenant '
unless such release resulted from the negligence or other tortuous conduct
of Landlord.
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12. Tenant warrants and represents that Tenant has dealt with no broker in
connection with the consummation of this Third Amendment to Lease other
than Fallon Hines & O'Connor and Shorenstein Management, Inc.
(collectively, the "Broker"), and, 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; provided,
however, that Landlord shall be solely responsible for the payment of any
brokerage commissions which may be payable to the Broker as a result of the
execution of this Third Amendment to Lease.
13. Except as expressly set forth herein, the Lease shall be and remain in full
force and effect, in accordance with its terms.
EXECUTED UNDER SEAL, as of April 17, 1996.
SHORENSTIEN MANAGEMENT, INC., as
Trustee for SRI Two Realty Trust
By: /s/ Glenn Shannon
--------------------------------
Glenn Shannon
Its Executive Vice President
Hereunto duly authorized
LEASECOMM CORPORATION
By: /s/ Peter R. Bleyleben
--------------------------------
Its President
Hereunto duly authorized
BOYLE LEASING TECHNOLOGIES, INC.
By: /s/ Peter R. Bleyleben
--------------------------------
Its President
Hereunto duly authorized
7
79
EXHIBIT A-1
[Diagram of Floor plan of 950 Winter Street Building #1]