EXHIBIT 10.35
LEASE
dated as of May _____, 2000
between
Telecom Realty, LLC
(as Landlord)
and
CTC Communications Corp.
(as Tenant)
for premises located at
115-125 Second Avenue, Waltham, Massachusetts
TABLE OF CONTENTS
1. PARTIES; DEFINED TERMS. 1
2. PREMISES. 3
3. TERM. 3
4. POSSESSION; TENANT'S WORK. 3
5. RENT. 7
6. SECURITY DEPOSIT. 8
7. TENANT'S SHARE OF COSTS. 10
8. USE. 12
9. COMPLIANCE WITH LAW. 13
10. ALTERATIONS. 13
11. REPAIRS. 14
12. LIENS. 14
13. ASSIGNMENT AND SUBLETTING. 15
14. INDEMNIFICATION. 16
15. SUBROGATION. 17
16. INSURANCE. 17
17. SERVICES AND UTILITIES. 18
18. TAXES ON TENANT'S PERSONAL PROPERTY. 19
19. RULES AND REGULATIONS. 19
20. HOLDING OVER. 19
21. ENTRY BY LANDLORD. 20
22. DAMAGE AND DESTRUCTION. 20
23. DEFAULT. 21
24. REMEDIES IN DEFAULT. 21
25. EMINENT DOMAIN. 22
26. ESTOPPEL CERTIFICATE. 23
27. AUTHORITY OF PARTIES. 23
28. BROKERS. 23
29. GENERAL PROVISIONS. 23
Exhibits
Exhibit A Plan of Premises
Exhibit A-1 Plan of Common Areas
Exhibit B Tenant Improvement Workletter
Exhibit B-1 Tenant Construction Work Rules and Regulations
Exhibit B-1A Insurance Requirements for Contractors
Exhibit B-1B Cabling, Welding and Heat Cutting Rules
Exhibit C Rules and Regulations
Exhibit D Prevailing Market Rate Determination Procedure
Exhibit E Form of Sublease to Fleet National Bank
Exhibit F Notice of Lease
Exhibit G Tenant Improvement Agreement
Exhibit H Disposition of Security Deposit Agreement
Exhibit I Description of Tenant's Work
OFFICE LEASE
Basic Lease Information
The following Basic Lease Information is incorporated into and made a
part of this Lease. Each reference in this Lease to any of the Basic Lease
Information shall mean the respective information set forth below and shall
be construed to incorporate all of the terms provided under the particular
Lease paragraphs pertaining to such information. In the event of a conflict
between any Basic Lease Information and the Lease, the Lease shall control.
Section 1 Date: May ___, 2000.
Landlord: Telecom Realty, LLC.
Building: That
certain building located at 115-125
Second Avenue, Waltham, Massachusetts
02154, consisting of approximately
Seventy-One Thousand Two Hundred Fifty
(71,250) square feet of rentable area.
Land: That
certain real property consisting of
approximately three (3) acres on which
the Building is located.
Landlord's Address: c/o Mr. Thomas Fabbricatore
220 Bear Hill Road
Waltham, Massachusetts 02154.
Telephone: (781) 466-1240.
Type of Entity: a Massachusetts limited liability
company.
With Copies of All
Notices Sent to: Bingham
Dana LLP
150 Federal Street
Boston, MA 02110
Attn: Henry S. Healy, Esq.
Lawrence I. Silverstein, Esq.
Facsimile: (617) 951-8736.
Address for
Payment of Rent: c/o Mr. Thomas Fabbricatore
220 Bear Hill Road
Waltham, Massachusetts 02154.
Section 1 Tenant: CTC Communications Corp.
Tenant's Address: 360 Second Avenue
Waltham, Massachusetts 02154.
Telephone: (781) 466-1240.
Contact: Mr. Thomas Fabbricatore.
Individual or
Type of Entity: A Massachusetts corporation.
With Copies of All
Notices Sent to: Leonard P.
Glass, Esq.
45 Central
Avenue
Tenafly, NJ
07670
Facsimile:
(201) 894-1718.
Section 2 Premises
Rentable Area: Seventy-One
Thousand One Hundred Twenty-Four (71,124)
square feet.
Section 2 Building Address: 115-125 Second
Avenue, Waltham, Massachusetts 02154.
Section 3 Commencement Date: May ___, 2000.
Section 3 Expiration Date: May 31, 2015.
Section 3 Extension(s): None.
Section 4 Tenant's Work: As described in
Section 4(b).
First Floor Tenant's Work: As
described in Section 4(e)(A).
Tenant's Work
Completion Date: That date
which is one (1) year after the
Commencement Date.
First Floor Tenant's
Work Security Amount: Two Million
Five Hundred Thousand and 00/100 Dollars
($2,500,000.00) to be held in escrow by
Landlord in accordance with the terms of
Section 4(e).
Liquidated Damages
Amount: As defined
in Section 4(e)(C).
Section 5 Base Rent: (a) For the
first (1st) year of the Term the Base Rent
shall be Twenty-Five Dollars ($25) per
square foot of Premises Rentable Area per
annum (equal to a total payment of One
Million Seven Hundred Seventy-Eight
Thousand One Hundred Dollars ($1,778,100)
per annum and One Hundred Forty-Eight
Thousand One Hundred Seventy-Five Dollars
($148,175) per month); and
(b) On
the first (1st) day of the second (2nd)
year of the Term, and on the first (1st)
day of each succeeding year of the Term,
the Base Rent shall increase by the
greater of:
(i) three percent (3%) of
the Base Rent for the
immediately prior year; or
(ii) an amount equal to the
increase in the most recent
available twelve (12) month
Consumer Price Index
published prior to the first
anniversary of the
Commencement Date and the
most recent twelve (12) month
Consumer Price Index
published prior to the
Commencement Date. As used
herein "Consumer Price Index"
shall mean the consumer price
index for urban wage earners
and clerical workers for the
City of Boston (Boston-
Brockton-Nashua, MA, NH, ME,
CT; 1982-84 = 100) as
determined by the United
States Department of Labor's
Bureau of Labor Statistics.
(c) Upon the earlier to occur of (i)
the end of the tenth (10th) year of the
Lease Term, or (ii) the acquisition of
Tenant (by the acquisition of 50% or more
of the stock or voting interests of
Tenant, or by an asset sale of all or
substantially all of Tenant's assets, or
by a merger or consolidation of Tenant
into or with another corporation or
entity), Landlord shall have the option,
at its sole discretion, to adjust the
Base Rent to the fair market rental value
of the Premises, defined herein as the
"Prevailing Market Rate", as determined
pursuant to Exhibit D hereto.
Section 5 Prepaid Rent: None.
Section 6 Security Deposit: Tenant shall
provide Landlord with a clean,
irrevocable, transferable letter of
credit (the "Security Deposit Letter of
Credit") in the amount of Eight Hundred
Eighty-Nine Thousand Fifty and 00/100
Dollars ($889,050) to be issued by and
drawn upon any bank with a banking office
in Boston, Massachusetts acceptable to
Landlord (the "Issuing Bank"), in
accordance with Section 6.
Section 7 Tenant's Share: Ninety-Nine and
Eighty-Two one-hundredths percent
(99.82%).
Section 8 Permitted Use: No use other than
general office and data center use, and
all uses reasonably related thereto.
Section 13 Subtenant: Fleet National
Bank, a national banking association.
Section 16 Tenant's General Liability
Insurance Limits: Two Million
Dollars ($2,000,000) per occurrence and
in the aggregate.
Section 28 Brokers: None.
Exhibits to Lease
Exhibit A Plan of Premises
Exhibit A-1 Plan of Common Areas
Exhibit B Tenant Improvement Workletter
Exhibit B-1 Tenant Construction Work Rules and Regulations
Exhibit B-1A Insurance Requirements for Contractors
Exhibit B-1B Cabling, Welding and Heat Cutting Rules
Exhibit C Rules and Regulations
Exhibit D Prevailing Market Rate Determination Procedure
Exhibit E Form of Sublease to Fleet National Bank
Exhibit F Notice of Lease
Exhibit G Tenant Improvement Agreement
Exhibit H Disposition of Security Deposit Agreement
Exhibit I Description of Tenant's Work
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Basic Lease Information as an instrument under seal as of this ___ day
of May, 2000.
LANDLORD: TENANT:
Telecom Realty, LLC, a CTC Communications Corp., a
Massachusetts limited liability company Massachusetts corporation
By: TELECOM MANAGEMENT By:
CORP., a Massachusetts Name:
corporation, its manager Title:
By:
Thomas Fabbricatore
Executive Vice-President
and Secretary-Treasurer
OFFICE LEASE
1. PARTIES; DEFINED TERMS.
This Lease, dated for reference purposes only as of the date set forth in the
Basic Lease Information, is made by and between Landlord and Tenant specified
in the Basic Lease Information. The "Basic Lease Information" shall mean the
document executed by Landlord and Tenant contemporaneously with the execution
of this Lease and incorporated in this Lease for all purposes. This "Basic
Lease Information" document contains definitions and basic provisions
pertinent to this Lease.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth below:
(a) "Act" shall have the meaning set forth in Section 29(v).
(b) "Additional Charges" shall have the meaning set forth in
Section 5(b).
(c) "Alterations" shall have the meaning set forth in Section
10.
(d) "Base Rent" shall have the meaning set forth in Section
5(a).
(e) "Basic Lease Information" shall have the meaning set forth
in Section 1.
(f) "Building" shall have the meaning set forth in the Basic
Lease Information.
(f) "Commencement Date" shall have the meaning set forth in
Section 3.
(g) "Common Areas" shall have the meaning set forth in Section
2.
(h) "Event of Default" shall have the meaning set forth in
Section 23.
(i) "Expense Computation Year" shall have the meaning set forth
in Section 7(d)(iv).
(j) "Expenses" shall have the meaning set forth in Section
7(d)(i).
(k) "Expiration Date" shall have the meaning set forth in
Section 3.
(l) "First Floor Tenant's Work" shall have the meaning set
forth in Section (4)(e)(A).
(m) "First Floor Tenant's Work Security Amount" shall have the
meaning set forth in Section 4(e)(A).
(n) "Hazardous Materials" shall have the meaning set forth in
Section 8(c).
(o) "Land" shall have the meaning set forth in the Basic Lease
Information.
(p) "Landlord" shall have the meaning set forth in the Basic
Lease Information.
(q) "Laws" shall have the meaning set forth in Section 9.
(r) "Liquidated Damages Amount" shall have the meaning set
forth in Section 4(e)(C).
(s) "Non-Renewal Notice" shall have the meaning set forth in
Section 6(A)(b).
(t) "Parties" shall have the meaning set forth in Section
29(w).
(u) "Permitted Use" shall have the meaning set forth in the
Basic Lease Information.
(v) "Premises" shall have the meaning set forth in Section 2.
(w) "Premises Rentable Area" shall have the meaning set forth
in the Basic Lease Information.
(x) "Regulations" shall have the meaning set forth in Section
29(v).
(y) "Rent" shall have the meaning set forth in Section 5(b).
(z) "Request for Release" shall have the meaning set forth in
Section 4(e)(B).
(aa) "Security Deposit" shall have the meaning set forth in the
Basic Lease Information.
(bb) "Security Deposit Letter of Credit" shall have the meaning
set forth in the Basic Lease information.
(cc) "Security Deposit Agreement" shall have the meaning set
forth in Section 6(C).
(dd) "Sublease" shall have the meaning set forth in Section
13(d).
(ee) "Subtenant" shall have the meaning set forth in Section
13(d).
(ff) "Tax Computation Year" shall have the meaning set forth in
Section 7(d)(v).
(gg) "Taxes" shall have the meaning set forth in Section
7(d)(ii).
(hh) "Tenant" shall have the meaning set forth in the Basic
Lease information.
(ii) "Tenant Improvement Agreement" shall have the meaning set
forth in Section 4(e)(D).
(jj) "Tenant's Share" shall have the meaning set forth in
Section 7(d)(iii).
(kk) "Tenant's Work" shall have the meaning set forth in Section
4(b).
(ll) "Tenant's Work Completion Criteria" shall have the meaning
set forth in Section 4(e)(B).
(mm) "Tenant's Work Completion Date" shall have the meaning set
forth in Section 4(b).
(nn) "Term" shall have the meaning set forth in Section 3.
2. PREMISES.
Landlord leases to Tenant and Tenant leases from Landlord that certain space
in the Building outlined in the floor plan(s) attached as Exhibit A together
with the improvements now or hereafter located in the Premises (the
"Premises"), together with the right, in common with others lawfully entitled
to use the Common Areas upon and subject to the provisions contained in this
Lease. "Common Areas" shall mean the exterior areas serving the Building
shown in the site plan attached as Exhibit A-1 intended for the common use of
tenants and occupants of the Building, including, without limitation, parking
areas, driveways, landscaping, sidewalks, hallways, stairways, elevators,
common entrances, lobbies, restrooms and other similar public areas and
access ways. Tenant shall have a non-exclusive right to use the parking
spaces appurtenant to the Building. Landlord and Tenant agree that, for
purposes of this Lease, the Premises shall be deemed to have the Premises
Rentable Area equal to the square footage specified in the Basic Lease
Information. The Premises are located at the Building Address shown in the
Basic Lease Information.
3. TERM.
The Premises are leased for a term (the "Term") to commence and end on the
dates respectively specified in the Basic Lease Information, unless the Term
shall sooner terminate as provided below. The dates upon which the Term shall
commence and terminate pursuant to this Section 3 are called the
"Commencement Date" and the "Expiration Date," respectively.
4. POSSESSION; TENANT'S WORK.
(a) If Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to Tenant on the Commencement Date, this Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting from the Landlord's failure to deliver the Premises
on the Commencement Date, but in that event Rent (as defined below) shall be
waived for the period between the Commencement Date and the date Landlord
delivers possession of the Premises to Tenant. If such delay, however, is
due primarily to the fault of Tenant or anyone acting under Tenant, there
shall be no waiver of Rent. No delay in delivery of possession shall operate
to extend the Expiration Date beyond the date specified in the Basic Lease
Information. Landlord and Tenant acknowledge and agree that the Premises
shall be delivered to Tenant subject to the Sublease described in Section
13(d) below.
(b) The Premises shall be delivered to and accepted by Tenant
"as is," in their then state of construction, finish and decoration, without
any additional obligation on the part of Landlord to prepare or construct the
Premises for Tenant's occupancy. Tenant acknowledges that (i) substantial
work must be performed by Tenant before the Premises can be occupied by
Tenant for the conduct of its business, and (ii) during the first year of the
Term of this Lease, Tenant will make certain capital improvements to the
Premises which shall include but not be limited to the following matters,
some of which are more fully described on Exhibit I attached hereto: (1)
upgrading of the Building's electrical system(s), (2) replacement of the
Building's HVAC system, (3) replacement of the roof of the Building, (4)
removal of the asbestos in the Building identified in the Phase I
Environmental Site Assessment dated March, 2000 prepared by GZA
GeoEnvironmental, Inc. ("GZA") (File No. 16225.00) in accordance with an
"Operation and Maintenance Program for Asbestos" to be prepared by GZA within
ten (10) Business Days of the date hereof, and (5) making of certain "general
office improvements" (which shall include, but not be limited to new carpet
installation, ceiling upgrades, new or upgraded dry walls and, if necessary,
glass and window replacement) (items (i) and (ii) shall be collectively
referred to herein as the "Tenant's Work"). All of such Tenant's Work shall
be performed by Tenant at its sole risk, cost and expense in accordance with
the provisions of the Tenant Improvement Workletter attached hereto as
Exhibit B, including Tenant's obligation to obtain a new Certificate of
Occupancy for the Building allowing occupancy and use of the Premises in
accordance with the Permitted Use. The Tenant's Work and Tenant's Work
Completion Criteria (as defined below in Section 4(e)(B)) shall be completed
and satisfied, respectively, no later than that date which is one (1) year
after the Commencement Date (the "Tenant's Work Completion Date"). Landlord
shall cooperate with Tenant in its application for any Certificate of
Occupancy including prompt execution of any necessary applications therefor
or filings in connection therewith requested reasonably by Tenant.
Notwithstanding the foregoing, Section 10 of this Lease and the provisions of
this Lease setting forth Tenant's insurance obligations (i.e., Section 16)
shall not apply during the performance of Tenant's Work and such matters
shall, during such time, be governed by the applicable provisions of Exhibit
B and Exhibit B-1A hereto.
(c) Landlord shall have the right to change Landlord's
Construction Representative at any time by giving written notice thereof to
Tenant.
(d) Subject to the provisions of Exhibit B, commencing on the
date hereof, Landlord shall permit Tenant to enter the Premises for the
purpose of performing Tenant's Work. Any such entry shall be at Tenant's
sole risk and Landlord shall not be responsible for any damage or loss to
property or installations placed in the Premises by Tenant prior to the
Commencement Date other than those caused by the willful intent or negligence
of Landlord and its agents or advisers. In addition, in no event shall
Tenant make use of any labor in the Building or otherwise suffer or permit
any action to be taken which would result in labor difficulties or otherwise
harm or inconvenience Landlord. Prior to performing any of Tenant's Work,
Tenant shall provide Landlord with proof of insurance in accordance with
Exhibit B and Exhibit B-1A hereto.
(e) The provisions set forth below in this Section 4(e) shall
govern the security to be provided by Tenant to Landlord in connection with
the performance and Landlord's approval of the Tenant's Work.
A. First Floor Tenant's Work Security Amount. As security for the
completion of the that portion of the Tenant's Work relating to the first
floor of the Premises (which work is described on Exhibit I hereto and
hereinafter referred to as the "First Floor Tenant's Work") in accordance
with the terms of this Lease, on the Commencement Date Tenant shall pay to
Landlord in immediately available United States funds the sum of Two Million
Five Hundred Thousand Dollars ($2,500,000) (the "First Floor Tenant's Work
Security Amount"). The First Floor Tenant's Work Security Amount shall be
held by Landlord in escrow in an interest bearing account in accordance with
the terms of this Section 4. No trust relationship shall be created with
respect to the First Floor Tenant's Work Security Amount. The First Floor
Tenant's Work Security Amount shall secure Tenant's obligations hereunder to
fully and faithfully perform all of its obligations hereunder in respect of
the First Floor Tenant's Work. In the event that Tenant defaults in the
performance of any of its obligations hereunder relating to the First Floor
Tenant's Work and said default has not been cured within fifteen (15)
business days of Tenant's receipt of written notice of same from Landlord (or
if it shall not be reasonably possible to cure said default with fifteen (15)
business days, within such reasonable period of time as may be required to
cure said default, provided that Tenant diligently and expeditiously takes
whatever actions may be necessary to effect said cure), Landlord may, but
shall not be required to, draw on the First Floor Tenant's Work Security
Amount (or any portion thereof). Landlord may use the monies realized from
said draw to cure Tenant's default and to compensate Landlord for any loss or
damage which Landlord may suffer as a result thereof. If any portion of the
First Floor Tenant's Work Security Amount shall be so drawn or used, Tenant
shall within five (5) business days of a written demand therefor from
Landlord, pay to Landlord in immediately available United States funds that
amount which is necessary to replenish the First Floor Tenant's Work Security
Amount to the level of Two Million Five Hundred Thousand Dollars ($2,500,000)
and said replenishment payment shall be held by Landlord in the same manner
as the original funds constituting the First Floor Tenant's Work Security
Amount. Landlord shall have the right to assign or pledge the First Floor
Tenant's Work Security Amount to any lender it may have during the term of
this Lease.
B. Return of First Floor Tenant's Work Security Amount. Landlord
and Tenant agree that Tenant shall be entitled to the return of the First
Floor Tenant's Work Security Amount on substantial completion of the First
Floor Tenant's Work and on satisfaction of the conditions set forth in this
Section 4(e)(B). Specifically, Landlord shall within fifteen (15) business
days of the satisfaction of the conditions set forth below return to Tenant
all of the First Floor Tenant's Work Security Amount then held by Landlord
(provided that for purposes of the return of the First Floor Tenant's Work
Security Amount said conditions shall be interpreted to apply only to the
First Floor Tenant's Work and not to the Tenant's Work on the second floor of
the Building): (i) Landlord shall have received a written request from
Tenant for the return of the First Floor Tenant's Work Security Amount (a
"Request for Release") in the form attached to the Tenant Improvement
Agreement as Schedule 1, provided that any Request for Release submitted to
Landlord by Tenant shall have attached thereto by Tenant those items listed
at Section 6(d) of the Tenant Improvement Agreement attached hereto as
Exhibit G (which items shall be prepared or procured by Tenant and addressed
to Landlord's lender such that Landlord shall have no obligation for the
preparation or procurement thereof other than an obligation to cooperate
reasonably with Tenant in its preparation and procurement thereof); (ii)
Tenant shall have completely complied with all of its obligations hereunder
relating to the good and workmanlike completion of the Tenant's Work; (iii)
Tenant shall have provided Landlord with a Certificate of Occupancy for the
Tenant's Work and such other approvals, permits, licenses and certifications
as may be necessary for the Tenant to occupy the Premises for the Permitted
Use (provided that Tenant shall not be required to obtain a Certificate of
Occupancy in connection with its Request for Release of the First Floor
Tenant's Security Work Amount in the event that the City of Waltham refuses
to issue a partial Certificate of Occupancy for the First Floor Tenant's Work
prior to completion of all of the Tenant's Work); (iv) Tenant shall have
delivered bona fide copies of invoices and receipts for the out of pocket
costs paid by Tenant to arm's length third parties to complete the Tenant's
Work in accordance with this Lease, which receipts shall total an amount
equal to or greater than the First Floor Tenant's Work Security Amount, and
Tenant shall have provided Landlord with a certificate signed by Tenant
confirming same; and (v) Tenant shall not be in default under this Lease, the
Tenant Improvement Agreement or the Security Deposit Agreement nor shall
there be any act, event or condition that with the giving of notice or the
passage of time, or both, would constitute a breach or default under any of
said three agreements (the above items (i) - (v), inclusive, are herein
collectively referred to as the "Tenant's Work Completion Criteria"). Any
amounts due to Landlord's lender pursuant to Section 6(e)(ii) of the Tenant
Improvement Agreement shall be the sole responsibility of Tenant (which
amounts shall be deemed to be Additional Charges hereunder, the non-payment
of which shall constitute an Event of Default by Tenant hereunder). No
partial releases of the First Floor Tenant's Work Security Amount by Landlord
to Tenant shall be permitted hereunder.
C. Completion of Tenant's Work; Liquidated Damages. Tenant shall
complete the Tenant's Work and satisfy all of the Tenant's Work Completion
Criteria by no later than the Tenant's Work Completion Date. In the event
that the Tenant's Work has not been fully completed and the Tenant's Work
Completion Criteria have not been fully satisfied by the Tenant's Work
Completion Date Landlord shall have the right, but shall not be obligated, to
claim and pay to itself the entire amount of the First Floor Tenant's Work
Security Amount then held in escrow by Landlord as liquidated damages (the
"Liquidated Damages Amount"), and not as a penalty, for those losses and
damages which Landlord has suffered as a result thereof. Landlord and Tenant
agree that the completion of the Tenant's Work and satisfaction of the
Tenant's Work Completion Criteria by the Tenant's Work Completion Date is of
critical importance to Landlord and its business and that a breach of
Tenant's obligations to timely complete and satisfy same would cause Landlord
significant losses and damages which would be extremely difficult, if not
impossible, to ascertain with any accuracy and that the Liquidated Damages
Amount represents both parties' best efforts to approximate such potential
damages and losses. In the event of a transfer of Landlord's interest in
this Lease, Landlord may transfer the First Floor Tenant's Work Security
Amount to Landlord's successor in interest and, upon such transfer, Landlord
shall be relieved of any and all liability for or obligation with respect to
the First Floor Tenant's Work Security Amount. Landlord and Tenant further
agree that Landlord's lender has rights to claim the First Floor Tenant's
Work Security Amount as liquidated damages pursuant to Section 6(f) of the
Tenant Improvement Agreement in the event that a Loan Default and a Lease
Default (as each term is defined therein) occur within thirty (30) days of
one another.
D. Tenant Improvement Agreement. The First Floor Tenant's Work
Security Amount shall also be governed by the terms of that certain Tenant
Improvement Agreement (the "Tenant Improvement Agreement") attached hereto as
Exhibit G. The Tenant Improvement Agreement shall be executed by Landlord
and Tenant on or before the Commencement Date. Tenant agrees that in the
event of any inconsistency between this Lease and the Tenant Improvement
Agreement the terms of this Lease shall prevail.
(f) Landlord reserves the right, at any time and from time to
time, to make alterations or additions to the Building and/or the Common
Areas, and Landlord also reserves the right at any time and from time to time
to construct other improvements in the Building (including within the Common
Areas) and to reduce or enlarge, make alterations in or make additions to the
Building and/or the Common Areas, provided that such alterations or additions
shall not unreasonably interfere with Tenant's Permitted Use hereunder.
5. RENT.
(a) Beginning on the Commencement Date, Tenant shall pay to
Landlord as annual minimum rent for the Premises the sum specified in the
Basic Lease Information as "Base Rent". Base Rent shall be payable in equal
monthly installments on or before the first day of the Term and on or before
the fifteenth day of each and every calendar month thereafter during the
Term. In the event the Term commences or ends on a day other than the first
or last day, respectively, of a calendar month, then the monthly Base Rent
for such fractional month shall be prorated on a daily basis based upon a
thirty (30) day calendar month. Base Rent shall be paid to Landlord, without
any prior demand and without any deduction or offset whatsoever, in lawful
money of the United States of America at the address for payment of rent
specified in the Basic Lease Information, or to such other person or at such
other place as Landlord may from time to time designate by notice to Tenant.
(b) Tenant shall pay to Landlord as additional charges all
fees, costs, expenses, charges, and other amounts required to be paid by
Tenant under this Lease other than Base Rent ("Additional Charges").
Additional Charges shall be payable to Landlord at the place where the Base
Rent is payable. Landlord shall have the same remedies for a default in the
payment of Additional Charges as for a default in the payment of Base Rent.
The terms 'Base Rent' and 'Additional Charges' are sometimes collectively
referred to herein as "Rent".
(c) If Tenant shall fail to pay to Landlord any installment of
Rent on or before the date such installment is due and payable more than one
(1) time in any twelve (12) consecutive month period, then Tenant shall pay
to Landlord in each instance a late payment charge equal to five percent (5%)
of the unpaid amount of such Rent to cover Landlord's additional
administrative costs resulting from Tenant's failure. Additionally, without
limiting any of Landlord's other rights and remedies under this Lease, if any
payment of Rent or any other payment payable under this Lease by Tenant to
Landlord shall not be paid when due, such Rent or other payment shall bear
interest from the date when the Rent or other payment, as may be the case,
was payable until the date paid at (a) the prime rate as announced by Fleet
National Bank at its main branch in Boston, Massachusetts from time to time
plus two percent (2%), but not more than (b) the highest lawful rate of
interest which Landlord may charge Tenant without violating any applicable
law. Such interest shall constitute an Additional Charge hereunder.
(d) Tenant agrees that acceptance by Landlord of any partial
payment of any item of rental due under this Lease (whether denominated as
Base Rent, Additional Charges or otherwise) shall not constitute an accord
and satisfaction by Landlord of any of Tenant's obligations under this Lease,
and that Landlord shall be entitled to collect from Tenant the balance of any
such item of Rent remaining due.
(e) Tenant agrees that this Lease is a net lease and the Base
Rent, Additional Charges, Taxes, Expenses and all other sums payable under this
Lease to Landlord shall be paid without notice or demand, and without setoff,
abatement, suspension, deferment, reduction or deduction, except as otherwise
expressly provided herein.
6. SECURITY DEPOSIT.
The provisions set forth below in this Section 6 shall govern the Security
Deposit to be held by Landlord pursuant to the terms of this Lease.
(a) Security Deposit Letter of Credit. Simultaneously with its
execution and delivery of this Lease, Tenant shall deposit with Landlord the
sum specified in the Basic Lease Information as the "Security Deposit" in the
form of the Security Deposit Letter of Credit. The Security Deposit Letter of
Credit shall (i) name Landlord as beneficiary thereof, (ii) have a term of
not less than one (1) year, (iii) be in the original amount equal to the
Security Deposit, and (iv) otherwise be in form and content satisfactory to
Landlord. The Security Deposit Letter of Credit shall, in any event, provide
that:
(1) The Issuing Bank shall pay to Landlord an amount up to the
face amount of the Security Deposit Letter of Credit upon presentation
of only a demand for payment in the amount to be drawn;
(2) The Security Deposit Letter of Credit shall be deemed to be
automatically renewed, without amendment, for consecutive periods of
one year each and shall have a final expiry date of not earlier than
thirty (30) days after the Expiration Date, as such may be extended as
provided herein, unless the Issuing Bank sends written notice
(hereinafter called the "Non-Renewal Notice") to Landlord both by
Federal Express or another recognized national or regional courier and
by certified or registered mail, return receipt requested, not less
than sixty (60) days next preceding the then expiration date of the
Security Deposit Letter of Credit, that it elects not to have such
Security Deposit Letter of Credit renewed;
(3) Landlord, after receipt of the Non-Renewal Notice, or
within sixty (60) days prior to the expiration date of any Security
Deposit Letter of Credit then held by Landlord, shall have the right,
exercisable by a demand for payment draft only to draw upon the
Security Deposit Letter of Credit and receive the proceeds thereof
(which shall be held by Landlord as a cash deposit pursuant to the
terms of this Section 6 pending the replacement of such Security
Deposit Letter of Credit or applied as permitted by the terms of this
Section 6); and
(4) Upon Landlord's sale or other transfer of the Land or the
Building, or Landlord's interest therein, or a leasing of the Building,
the Security Deposit Letter of Credit shall be transferable by Landlord
and Landlord shall thereupon be released by Tenant from all liability
for the return of such Security Deposit Letter of Credit. In such
event, Tenant agrees to look solely to the new Landlord for the return
of said Security Deposit Letter of Credit. Tenant shall execute such
documents as may be necessary to accomplish such transfer or assignment
of the Security Deposit Letter of Credit and shall pay any transfer
fees of the Issuing Bank.
Tenant covenants that it will not assign or encumber, or attempt to
assign or encumber, the Security Deposit Letter of Credit or proceeds
thereof, and that neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment, or attempted
encumbrance. If Landlord determines that the financial condition of the
Issuing Bank has so declined as to cause concern that the Issuing Bank may
not honor a draw on its Security Deposit Letter of Credit and provides Tenant
of notice of the same, Tenant shall promptly obtain a replacement Security
Deposit Letter of Credit complying with the terms hereof from another
commercial bank acceptable to Landlord.
(b) Draws and Transfer of Security Deposit Letter of Credit. The
Security Deposit shall be held by Landlord as security for the full and
faithful performance by Tenant of all the provisions of this Lease. If
Tenant defaults with respect to any provision of this Lease, including,
without limitation, provisions relating to the payment of Rent, Landlord may,
but shall not be required to, draw on the Security Deposit Letter of Credit
and use, apply or retain all or any part of the Security Deposit for the
payment of any Rent or to compensate Landlord for any other loss or damage
which Landlord may suffer by reason of Tenant's default. If any portion of
the Security Deposit is so used, applied or retained, Tenant shall within
five (5) days after demand from Landlord, provide Landlord with a replacement
letter of credit in the amount and on the terms specified in the Basic Lease
Information provisions relating to the Security Deposit Letter of Credit. No
trust relationship shall be created with respect to the Security Deposit and
Tenant shall not be entitled to interest on the Security Deposit. If Tenant
shall fully and faithfully perform every provision of this Lease and this
Lease shall expire or be terminated, the Security Deposit Letter of Credit
shall be promptly returned to Tenant by Landlord in its then current
condition. In the event of termination of Landlord's interest in this Lease,
Landlord may transfer the Security Deposit to Landlord's successor in
interest and, upon such transfer, Landlord shall be relieved of any and all
liability for or obligation with respect to the Security Deposit. Landlord
shall also have the right to assign or pledge the Security Deposit Letter of
Credit to any lender it may have during the Term of this Lease.
(c) Security Deposit Agreement. The Security Deposit shall be
governed by the terms of that certain Agreement Concerning Disposition of
Security Deposit (the "Security Deposit Agreement") attached hereto as
Exhibit H. The Security Deposit Agreement shall be executed and delivered by
Landlord and Tenant on or before the Commencement Date. Tenant agrees that
in the event of any inconsistency between this Lease and the Security Deposit
Agreement the terms of this Lease shall prevail.
7. TENANT'S SHARE OF COSTS.
(a) During the Term, Tenant shall pay to Landlord as Additional
Charges: (i) Tenant's Share of all Taxes and Expenses (each as defined
below).
(b) During the last month of each Expense Computation Year and
each Tax Computation Year (each as defined below), as the case may be, or as
soon thereafter as practicable, Landlord shall give to Tenant notice of
Landlord's estimate of the amounts payable by Tenant under Section 7(a) for
the following Expense Computation Year or Tax Computation Year, as the case
may be. On or before the first day of each month during the following
Expense Computation or Tax Computation Year, as the case may be, Tenant shall
pay to Landlord one-twelfth (1/12th) of such estimated amounts; provided,
however, that if Landlord fails to give such notice in the last month of the
prior Expense Computation Year or Tax Computation Year, as the case may be,
then Tenant shall continue to pay on the basis of the prior year's estimate
until the first day of the calendar month next succeeding the date such
notice is given by Landlord. If at any time or times Landlord determines
that the amounts payable under Section 7(a) for the current Expense or Tax
Computation Year, or both, will vary from its estimate given to Tenant,
Landlord, by notice to Tenant, may revise its estimate for such Expense or
Tax Computation Year, or both, and subsequent payments by Tenant for such
Expense or Tax Computation Year, or both, shall be based upon such revised
estimate.
(c) Following the end of each Expense Computation Year or Tax
Computation Year, Landlord shall deliver to Tenant a statement of amounts
payable under Section 7(a) for such Expense Computation Year and Tax
Computation Year. If such statement shows an amount owing by Tenant that is
less than the payments for such Expense Computation Year or Tax Computation
Year, or both, previously made by Tenant, and if no Event of Default (as
defined below) is outstanding at the time such statement is delivered,
Landlord shall credit such amount to the next payments of Rent falling due
under this Lease. If such statement shows an amount owing by Tenant that is
more than the estimated payments for such Expense Computation Year or Tax
Computation Year, or both, previously made by Tenant, Tenant shall pay the
deficiency to Landlord within thirty (30) days after delivery of such
statement. The respective obligations of Landlord and Tenant under this
Section 7(c) shall survive the Expiration Date, and, if the Expiration Date
is a day other than the last day of an Expense or Tax Computation Year, or
both, the adjustment in Rent pursuant to this Section 7 for the Expense
Computation Year or Tax Computation Year, or both, in which the Expiration
Date occurs shall be prorated in the proportion that the number of days in
such Expense Computation Year and/or Tax Computation Year preceding the
Expiration Date bears to 365.
(d) As used in this Lease, the following terms shall have the
meanings specified below:
(i) "Expenses" shall mean (1) all costs of management (if
applicable, said costs shall not exceed two percent (2%) of the net operating
income of the Building), operation, maintenance and repair of the Land,
Building and Common Areas, and the improvements situated thereon, including,
without limitation, janitorial, maintenance, maintenance and repair of the
roof of the Building and parking and landscaped areas on the Land, security
guard(s) and other service contracts; costs of supplying, replacing and
cleaning employee uniforms; charges for heat, air conditioning, light, power,
gas, water, sewer and waste disposal and other utilities furnished by
Landlord and not otherwise billed directly to Tenant by Landlord; materials,
supplies, equipment and tools; costs for maintenance, replacements and
repairs not paid by insurance or third parties; insurance premiums, insurance
deductibles, self-insured retentions, and license, permit and inspection
fees; depreciation on personal property; wages, salaries, employee benefits
and payroll costs of on-site personnel engaged in the management, operation
and maintenance of the Building; fees, charges and other costs, including,
without limitation, management fees, consulting fees, legal fees and
accounting fees, of all independent contractors engaged by Landlord or
reasonably charged by Landlord if Landlord performs any such services in
connection with the Building; and (2) the cost of any capital improvements
made to the Building after its construction that reduce other Expenses or
made to the Building after the date of this Lease as a result of governmental
orders, ordinances, codes, rules and regulations that were inapplicable to
the Building at the time permits for its construction were obtained, such
cost to be amortized over the useful life of such capital improvement as
determined in accordance with generally accepted accounting procedures,
together with interest on the unamortized balance at a rate equal to ten
percent (10%) per annum or such higher rate as may have been paid by Landlord
on funds borrowed for the purpose of constructing such improvements.
Notwithstanding the foregoing, Expenses shall not include Taxes, depreciation
on the Building, costs of installing capital improvements (except as provided
in clause (2) above), real estate brokers' commissions, executive salaries
(exclusive of salaries, wages or fees paid for management activities), tenant
installation costs, Landlord's debt service costs and capital items other
than those referred to in this clause i. The determination of all Expenses
shall be made by Landlord in good faith and shall be final and binding on
Tenant.
(ii) "Taxes" shall mean all taxes, assessments and charges
levied upon or with respect to the Building, any personal property of
Landlord used in the operation of the Building or Landlord's interest in the
Building or such personal property. Taxes shall include, without limitation,
all general real property taxes and general and special assessments, transit
charges, service payments in lieu of taxes and any tax, fee or excise on the
act of entering into this Lease or any other lease of space in the Building,
on the use or occupancy of all or any part of the Building, on the rent
payable under this Lease or any other lease of space in the Building or on or
in connection with the business of renting space in the Building, that are
now or hereafter levied or assessed against Landlord by the United States of
America, the Commonwealth of Massachusetts, or any political subdivision,
public corporation, district or other political or public entity, and shall
also include any other tax, fee or other excise, however described, that may
be levied or assessed as a substitute for, or as an addition to, in whole or
in part, any other Taxes, whether or not now customary or within the
contemplation of the parties. Taxes shall not include franchise, transfer or
inheritance taxes, or income taxes measured by the net income of Landlord
from all sources, unless, due to a change in the method of taxation, any of
these taxes are levied or assessed against Landlord as a substitute for, or
as an addition to, in whole or in part, any other tax that would otherwise
constitute a Tax. Taxes shall also include reasonable legal and tax
consultants' fees, costs and disbursements incurred in connection with
proceedings to contest, determine or reduce Taxes.
(iii) "Tenant's Share" shall mean the percentage figure so
specified in the Basic Lease Information, which is calculated by dividing the
Rentable Area of Premises by the Rentable Area of the Building.
(iv) "Expense Computation Year" shall mean each twelve
(12) consecutive month period commencing January 1st of each year during the
Term.
(v) "Tax Computation Year" shall mean each Tax fiscal
year (currently July 1-June 30) during the Term.
8. USE.
(a) Tenant shall use and occupy the Premises for any purpose
specified in the Basic Lease Information as a "Permitted Use" and shall not
use or permit the Premises to be used for any other purpose.
(b) Tenant shall take no action, nor permit any action to be
taken, in or about the Premises that will in any way increase the existing
rate of or affect any fire or other insurance upon the Building or any of its
contents, or cause cancellation of any insurance policy covering all or any
part of the Building or any of its contents. Tenant shall not use or allow
the Premises to be used for any improper, immoral, unlawful or objectionable
purpose, permit pornography or apparatus for the use of illegal drugs to be
held on the Premises, or cause, maintain or permit any nuisance in, on or
about the Premises. Tenant shall neither commit nor suffer to be committed
any waste in, on or about the Premises.
(c) Tenant shall not cause or suffer or permit any Hazardous
Materials, as defined below, to be brought upon, kept, used, discharged,
deposited or leaked in or about the Premises or the Building or Common Areas
by Tenant or any of Tenant's agents or by anyone in the Premises (other than
Landlord or its agents, employees or contractors), except to the extent such
Hazardous Materials are customarily kept or used by typical office tenants
and are kept and used in accordance with all applicable Laws. If Tenant
breaches the obligations stated in the preceding sentence, or if the presence
of any Hazardous Material on the Premises or the Building or Common Areas
caused or suffered or permitted by Tenant or any of Tenant's agents or by
anyone in the Premises (other than Landlord or its agents, employees or
contractors) results in contamination of the Premises or the Building or
Common Areas, or if contamination of the Premises or the Building by any
Hazardous Material otherwise occurs for which Tenant is legally liable, then
Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, damages, costs, liabilities and expenses (including, without
limitation, diminution in value or use of the Building, attorneys' fees,
consultant fees and expert fees) which arise during or after the Term as a
result of such contamination. This indemnification shall include, without
limitation, costs incurred in connection with any investigation of site
conditions or any clean-up, remediation, removal or restoration work on or
under the Premises or the Building or Common Areas. "Hazardous Materials"
means any hazardous or toxic substance, material or waste which is or becomes
regulated by any local, state or federal governmental authority or by common
law decisions, including without limitation (i) all chlorinated solvents,
(ii) petroleum products or by-products, (iii) asbestos, and (iv)
polychlorinated biphenyls. Notwithstanding the above provisions, Tenant
shall have the right to install a "back-up" generator on or about the
Premises. Installation of the "back-up" generator shall be performed in a
good and workmanlike manner in compliance with all applicable Laws by
licensed contractors reasonably approved by Landlord. Landlord agrees that
Tenant shall have the right to remove and retain the "back-up" generator upon
the expiration or earlier termination of this Lease, provided Tenant repairs
and restores the Premises (in connection with the removal of the "back-up"
generator) to their condition prior to the installation of such "back-up"
generator. Tenant agrees that it shall indemnify, defend and hold Landlord
harmless from any and all claims, damages, costs, liabilities and expenses
(including, without limitation, diminution in value or use of the Building,
reasonable attorneys' fees, consultant fees and expert fees) which arise
during or after the Term as a result of the installation, use or removal of
such "back-up" generator.
9. COMPLIANCE WITH LAW.
Tenant shall not use the Premises in any manner, or permit anything to be
done in or about the Premises, which will in any way conflict with any law,
statute, ordinance or governmental rule, regulation or order now in force or
hereafter enacted or promulgated (collectively, "Laws").
10. ALTERATIONS.
Except for Tenant's Work (for which Landlord review and approval is required
pursuant to Exhibit B) and installation of the "back-up" generator referred
to above in Section 8(c), Tenant shall not before or during the Term make or
suffer to be made any alterations, additions or improvements in or to the
Premises (herein collectively called "Alterations") without first obtaining
Landlord's written consent. Tenant shall submit detailed plans and
specifications for the Alterations in connection with requesting Landlord's
consent. Landlord's consent may be withheld in Landlord's sole discretion if
the Alterations will affect the structure of the Building or the Building's
systems; otherwise Landlord's consent shall not be unreasonably withheld. As
a condition of approving the proposed Alterations, Landlord may require
Tenant to agree to remove all or any part of such Alterations on or before
the Expiration Date and to reimburse Landlord for any reasonable expenses
incurred by Landlord in reviewing the plans and specifications, including,
without limitation, the reasonable costs of any outside consultants retained
by Landlord. All Alterations shall immediately become Landlord's property
and shall remain in the Premises at the end of the Term without compensation
to Tenant unless Landlord conditioned its approval of such Alterations on
Tenant's agreement to remove them, in which event Tenant shall by the
Expiration Date remove such Alterations and restore the Premises to their
condition prior to the installation of such Alterations. All Alterations
shall be done in a good and workmanlike manner, in compliance with all
applicable Laws by licensed contractors approved by Landlord. Tenant shall
also comply with the provisions of Section 11 in connection with any Tenant
Alterations it undertakes at the Premises.
11. REPAIRS.
(a) By occupying the Premises, Tenant accepts the Premises as
being in the condition in which Landlord is obligated to deliver the Premises
under the terms of this Lease. Tenant shall, at all times during the Term,
and at Tenant's sole expense, keep all of the Premises in good condition and
repair, except for ordinary wear and tear or damage by fire or casualty.
Tenant waives all rights to make repairs at the expense of Landlord or in
lieu of such repairs to vacate the Premises as provided by any law, statute
or ordinance now or hereafter in effect. Tenant shall at the end of the Term
surrender the Premises to Landlord in the same or improved condition as when
received, except for ordinary wear and tear, damage by fire, casualty and
Alterations approved by Landlord and not required by Landlord to be removed
by Tenant.
(b) Notwithstanding the provisions of Section 11(a), Landlord
shall repair and maintain the structural portions of the Building (including
load-bearing walls), unless the necessity for such maintenance and repairs is
in any way caused by the act, neglect, fault or omission of Tenant, its
agents, servants, employees or invitees, in which case Tenant shall pay to
Landlord the reasonable cost of such maintenance and repairs. Landlord shall
not be liable for any failure to make any such repairs or to perform any such
maintenance. Rent shall not abate nor shall Landlord be liable as a result
of any injury to or interference with Tenant's business arising from the
making of any repairs, or the performance of any maintenance, in or to any
portion of the Building or the Premises or the Common Areas.
12. LIENS.
Tenant shall keep the Premises and the Building free from any liens arising
out of any act or omission of Tenant, including, without limitation, any work
performed, materials furnished or obligations incurred by Tenant. In the
event that Tenant shall not, within fifteen (15) days following notice of the
imposition of any such lien, cause same to be released of record by payment
or posting of a bond fully satisfactory to Landlord in form and substance,
Landlord shall have, in addition to all other remedies provided herein and by
law, the right (but not the obligation) to cause the lien to be released by
such means as Landlord shall deem proper, including, without limitation,
payment of the claim giving rise to such lien. All such sums paid by
Landlord and all expenses incurred by it in connection with investigating,
releasing, bonding-off or disputing liens on the Premises or the Building
arising out of any act or omission of Tenant shall be considered Additional
Charges and shall be payable by Tenant within thirty (30) days after demand.
Landlord shall have the right to post and keep posted on the Premises any
notices that may be provided by law or that Landlord may deem to be proper
for the protection of Landlord, the Premises and the Building from such
liens. Tenant shall give to Landlord at least ten (10) days' prior notice of
the date of commencement of any Alterations on the Premises in order to
permit the posting of such notices by Landlord. Landlord may require, in
Landlord's sole discretion, that Tenant, at Tenant's sole expense, provide to
Landlord a lien and completion bond in form and substance satisfactory to
Landlord in an amount equal to one hundred fifty percent (150%) of the total
estimated cost of any Alterations to insure Landlord against any liability
for mechanics' and materialmen's liens and to insure completion of work.
Notice is hereby given that Landlord shall not be liable for any labor,
services or materials furnished or to be furnished to Tenant for the Premises
or to anyone holding any of the Premises through or under Tenant, and that
mechanics', construction or other liens for any such labor, services or
materials shall not attach to the Premises or otherwise affect the interest
of Landlord in and to the Premises. Tenant agrees to notify any contractors,
subcontractors or others performing services or providing materials to the
Premises of the foregoing provision of this Lease.
13. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not (i) assign or mortgage this Lease or any
right under or interest in it, (ii) allow this Lease to be assigned by
operation of law or otherwise, (iii) sublet the Premises or any part of the
Premises, or (iv) permit anyone to use or occupy the Premises or any part of
the Premises in place of Tenant without the prior written consent of
Landlord. Any sale or other transfer of a majority of the voting stock or
partnership interest of Tenant or any guarantor of Tenant's obligations under
this Lease shall be considered an assignment for purposes of this Section 13.
Any such assignment, mortgage or subletting without Landlord's consent shall
be void and shall, at Landlord's option, constitute a breach of this Lease.
Notwithstanding consent by Landlord of any subletting or assignment by
Tenant, Tenant, any guarantor of Tenant's obligations under this Lease and
each assignee and subtenant shall remain directly and primarily responsible
and jointly and severally liable for payment of the Rent required under this
Lease and for compliance with all of Tenant's other obligations, and no usage
of the Premises different from the usage herein provided to be made by Tenant
shall be permitted. In the event that the rent due and payable by an
assignee or sublessee exceeds the Rent payable under this Lease, the excess
rental or consideration shall be paid by Tenant to Landlord within ten (10)
days following receipt of any excess rental or consideration by Tenant.
Consent of Landlord to any assignment, mortgage or subletting shall
constitute approval only as to that specific assignment, mortgage or
subletting, and none other.
(b) Any request by Tenant for Landlord's consent to a specific
assignment or sublease shall include (i) the name of the proposed assignee,
sublessee or occupant, (ii) the nature of the proposed assignee's,
sublessee's or occupant's business to be carried on in the Premises, (iii) a
copy of the proposed assignment or sublease, and (iv) such financial
information and such other information as Landlord may reasonably request
concerning the proposed assignee, sublessee or occupant or its business.
Landlord shall respond in writing, stating the reasons for any disapproval,
within fifteen (15) business days after receipt of all information reasonably
necessary to evaluate the proposed assignment or sublease.
(c) Tenant shall pay to Landlord the reasonable amount of
Landlord's cost of processing every proposed assignment or sublease
including, but not limited to, attorneys' fees and the reasonable amount of
all direct and indirect expenses incurred by Landlord arising from any
assignee, sublessee or occupant taking occupancy.
(d) Notwithstanding any other provision set forth herein,
Tenant shall be permitted to enter into a sublease (the "Sublease") of the
Premises by and between Tenant, as sublandlord, and Fleet National Bank, a
national banking association (the "Subtenant") as subtenant, for
approximately Eighteen Thousand Sixty (18,060) square feet of space on the
second floor of the Building and approximately Ten Thousand (10,000) square
feet of space on the first floor of the Building. The Sublease shall be in
the form attached hereto as Exhibit E. Provided that Subtenant is not in
material default of the Sublease, Landlord shall not disturb Subtenant's
quiet enjoyment of its premises under the Sublease for the entire term
thereof.
(e) Notwithstanding the foregoing provisions of this Section
13, an assignment, sublease or transfer of the Premises shall not require the
consent of the Landlord if such assignment, sublease or transfer is to an
Affiliate of the Tenant (as defined herein) provided such Affiliate agrees
directly with Landlord to be bound by all obligations of Tenant hereunder.
For purposes hereof, "Affiliate" means (i) any entity directly controlling,
controlled by or under common control with Tenant; (ii) any entity owning or
controlling fifty percent (50%) or more of the outstanding voting interests
of Tenant; (iii) any entity of which Tenant owns or controls fifty percent
(50%) or more of the voting interests; (iv) any entity into which Tenant is
merged or consolidated; (v) any entity into which Tenant is merged or any
corporation or other entity resulting from the consolidation of Tenant with
some other entity; and (vi) any successor corporation to Tenant or other
entity arising from any bona fide reorganization of Tenant. No subletting,
assignment or transfer of this Lease either with or without the consent of
Landlord shall relieve the Tenant from its obligations under this Lease and
Tenant hereby guarantees the prompt and timely payment of all Base Rent and
Additional Charges and the timely performance of all other obligations of
Tenant hereunder.
14. INDEMNIFICATION.
(a) If Tenant shall default in the performance of its
obligations under this Lease, Landlord, at any time thereafter on five (5)
business days written notice, may remedy such default for Tenant's account
and at Tenant's expense. By curing such default, Landlord does not waive any
other rights or remedies of Landlord with respect to such default.
(b) Tenant agrees to indemnify Landlord against and hold
Landlord harmless from any and all loss, cost, liability, damage and expense
including, without limitation, penalties, fines and reasonable attorneys'
fees, incurred in connection with or arising from any cause whatsoever in, on
or about the Premises.
(c) Tenant waives all claims against Landlord for damage to any
property or injury or death of any person in, upon or about the Premises or
Building or Common Areas arising at any time and from any cause other than
solely by reason of the gross negligence or willful act of Landlord or its
employees or contractors.
(d) Tenant's obligations under this Section 14 shall survive
the expiration or sooner termination of the Term.
(e) All fixtures, equipment, signs, merchandise, supplies and
other property on or about the Premises shall be at Tenant's sole risk and
hazard, and if the whole or any part thereof shall be destroyed or damaged by
fire, water or otherwise, or by use or abuse of water, or by leaking or
bursting of water pipes, or in any way or manner, including, without
limitation, the acts or omissions of any other occupant of any portion of the
Building, no part of said destruction or damage is to be charged to or borne
by Landlord in any case whatsoever, except only to the extent caused by
Landlord's gross negligence or willful default and, except to such extent,
Tenant agrees to exonerate Landlord from and against any and all claims,
suits, obligations, liabilities and damages, including reasonable attorneys'
fees, based upon or arising out of any of the foregoing.
15. SUBROGATION.
Landlord and Tenant each shall obtain from their respective insurers under all
policies of fire and extended coverage insurance maintained by either at any
time during the Term insuring or covering the Building or Premises or any
improvements, fixtures, equipment, furnishings or other property, including
salable goods, merchandise, and inventory in, on or about the Premises, if any,
a waiver of all rights of subrogation which such party or the insurer of such
party might have against the other party or its insurer.
16. INSURANCE.
Tenant agrees to carry and keep in force during the Term, at Tenant's sole
expense, the following types of insurance:
(i) Public Liability and Property Damage. Commercial general
liability insurance including contractual liability with a minimum combined
single limit or aggregate of liability equal to the amount set forth in the
Basic Lease Information, insuring against any and all liability for property
damage and for injuries to or death of persons occurring in, on or about the
Premises or arising out of the maintenance, use or occupancy of the Premises.
(ii) Tenant's Property. Insurance covering any and all
fixtures, equipment, furnishings and personal property of Tenant from time to
time in, on or about the Premises, providing protection against all perils
included within a standard fire and extended coverage "all risk form"
insurance policy, together with insurance against sprinkler damage,
vandalism, and malicious mischief. Such insurance shall be in an amount not
less than the full replacement cost of the property insured without deduction
for depreciation.
(iii) Building. Insurance covering the replacement cost of the
Building including a standard "all risk of physical loss" insurance policy
insuring the Building against loss or damage by any peril, including without
limitation riot and civil commotion, vandalism, malicious mischief, burglary,
theft and mysterious disappearance in an amount (i) equal to at least one
hundred percent (100%) of the then "full replacement cost" of the Building,
without deduction for physical depreciation, and (ii) such that the insurer
would not deem Landlord's lender to be a coinsurer under such policy. The
premium for said policy shall be paid annually in advance and shall contain a
"replacement cost endorsement" with a waiver of depreciation and shall have a
deductible no greater than Ten Thousand Dollars ($10,000). In addition, said
policy shall also include the following coverage:
(A) Rental Loss Insurance. Rental loss insurance in an
amount equal to at least one hundred percent (100%) of the aggregate annual
amount of all rents and additional rents payable by all of the tenants under
the leases in the Building (whether or not such leases are terminable in the
event of a fire or casualty), such rental loss insurance to cover rental
losses for a period of at least one (1) year after the date of the fire or
casualty in question. The amount of such rental loss insurance shall be
increased from time to time during the term of this Lease as and when new
leases and renewal leases are entered into, to reflect all increased rent and
increased additional rent payable by all of the tenants under such renewal
leases and all rent and additional rent payable by all of the tenants under
such new leases;
(B) Boiler Insurance. Insurance against loss or damage
from explosion of steam boilers, air conditioning equipment, high pressure
piping, machinery and equipment, pressure vessels or similar apparatus now or
hereafter installed in the Building; and
(C) Building Ordinance Insurance. Building ordinance or
enforcement of law insurance coverage.
(iv) Worker's Compensation. Worker's compensation insurance in
such form and amounts as required by local, state or Federal laws, rules and
regulations, and employer's liability insurance with a limit of one million
dollars ($1,000,000).
All policies of insurance provided for in this Section 16 shall be issued by
insurance companies with a general policyholders' rating of not less than A
and a financial rating of XIII as rated in the most current available "Best's
Insurance Reports," and qualified to do business in the Commonwealth of
Massachusetts; and, except for workers' compensation and employers'
liability, all such policies shall include Landlord and Landlord's lender as
additional insureds. All such policies of insurance shall be procured for
periods of not less than one (1) year. Executed copies or certificates of
all such policies of insurance shall be delivered to Landlord within ten (10)
days before delivery of possession of the Premises to Tenant, and thereafter
within thirty (30) days prior to the expiration of the term of each such
policy. All commercial general liability insurance policies shall contain a
provision that Landlord, although included as an additional insured, shall
nevertheless be entitled to recovery under such policies for any loss
occasioned to Landlord, its agents and employees by reason of the negligence
or willful act of Tenant. As often as any such policy shall expire or
terminate, renewal or additional policies shall be procured and maintained by
Tenant in like manner and to like extent. All such policies of insurance
shall provide that the company writing such policy shall give to Landlord
thirty (30) days' prior written notice of any cancellation or lapse or the
effective date of any reduction in the amounts of insurance. Notwithstanding
the foregoing, if any such insurance expires without having been renewed by
Tenant, Landlord shall have the option in addition to Landlord's other
remedies to procure such insurance for the account of Tenant immediately and
without notice to Tenant, and the cost of such insurance shall be paid to
Landlord an Additional Charge. The limits of the insurance required under
this Lease shall not limit the liability of Tenant. All public liability,
property damage and other casualty policies shall be written as primary
policies, not contributing with and not in excess of, any coverage which
Landlord may carry.
17. SERVICES AND UTILITIES.
(a) Tenant shall make all arrangements for and pay before
delinquent all charges for all utilities and services furnished to or used by
it in connection with the Premises, including, without limitation, gas,
electricity, water, telephone service, and trash collection, and for all
connection charges. Landlord shall not be liable for, and Tenant shall not
be entitled to, any reduction of Rent by reason or on account of (i) the
installation, use of or interruption of use of any equipment in connection
with the furnishing of any of the foregoing services, (ii) the failure to
furnish or delay in furnishing any of the foregoing services when such
failure is caused by accident, breakage, repairs, strikes, lockouts or other
labor disturbances or labor disputes of any character, or by any other cause,
similar or dissimilar, or by the making of any repairs or improvements to the
Premises or to the Building or any portion of either, or (iii) the
limitation, curtailment, rationing or restriction on use of water,
electricity, gas or any other utility serving the Premises or the Building by
any utility or governmental agency.
(b) The cost of any such meters and of their installation,
maintenance and repair shall be paid for by Tenant, and Tenant agrees to pay
to Landlord as Additional Charges promptly upon demand all charges for such
water and electric current consumed as shown by such meters, at the rates
charged for such services by the local public utility furnishing the same,
plus any additional expense incurred in providing and keeping account of the
water and electric current so consumed. If a separate meter is not
installed, such excess cost for such water and electric current shall be
established by an estimate made by a utility company or an engineer selected
by Landlord and shall be paid to Landlord as Additional Charges.
18. TAXES ON TENANT'S PERSONAL PROPERTY.
Tenant agrees to pay, before delinquency, any and all taxes levied or
assessed during the Term upon Tenant's equipment, furniture, fixtures, and
other personal property located in, on or about the Premises or Building. In
the event any or all of Tenant's equipment, furniture, fixtures and other
personal property shall be assessed and taxed with the Building, Tenant shall
pay to Landlord as Additional Charges the taxes so levied with respect to
such personal property within ten (10) days after delivery to Tenant by
Landlord of a statement setting forth the amount of such taxes applicable to
Tenant's property.
19. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with the rules and regulations
with respect to the Building and Common Areas that are attached as Exhibit C.
Landlord reserves the right from time to time to make reasonable additions
and modifications to such rules and regulations. Any such additions and
modifications shall be binding upon Tenant upon delivery of a copy of them to
Tenant.
20. HOLDING OVER.
Any holding over by Tenant after the Expiration Date with the prior consent
of Landlord shall be construed to be a tenancy from month to month on all of
the terms, covenants, and conditions herein specified but at a monthly Base
Rent equal to twice the monthly Base Rent in effect immediately prior to the
Expiration Date, provided that Tenant shall not be liable for consequential
damages in connection with holding over pursuant to the provisions of this
Section 20. Acceptance by Landlord of Rent after the Expiration Date without
Landlord's prior consent shall not constitute a consent by Landlord to any
such tenancy from month to month or result in any other tenancy or any
renewal of the Term. The provisions of this Section 20 are in addition to,
and do not affect, Landlord's right of re-entry or other rights under this
Lease or provided by law.
21. ENTRY BY LANDLORD.
Landlord, its agents, and employees shall have access to and the right to
enter upon the Premises at any reasonable time upon reasonable advance notice
to Tenant, to examine the condition of the Premises, to make any repairs or
alterations required to be made by Landlord under this Lease, to show the
Premises to prospective purchasers, lenders, or tenants, and for any other
purpose deemed reasonable by Landlord, without liability for trespass. In
any circumstances where Landlord is permitted to enter upon the Premises
during the Term, no such entry shall constitute an eviction or disturbance of
Tenant's use and possession of the Premises or a breach by Landlord of any of
its obligations under this Lease or render Landlord liable for damages for
loss of business or otherwise entitle Tenant to be relieved from any of its
obligations under this Lease or grant Tenant any right of setoff or
recoupment remedy.
22. DAMAGE AND DESTRUCTION.
If the Premises or the Building is damaged by fire or other casualty,
Landlord shall promptly repair such damage to the extent of the insurance
proceeds (after deduction of Landlord's costs of adjustment and collection)
available for restoration of the Premises or the Building, as the case may
be, subject to the provisions of this Section 22, if, in Landlord's judgment,
such repairs can be made within one hundred twenty (120) days. During the
making of such repairs by Landlord, this Lease shall remain in full force and
effect, except that if the damage is not the result of any act, neglect,
default or omission of Tenant, its agents, employees or invitees, Tenant
shall be entitled to a reduction of Rent while such repair is being made in
the proportion that the Premises Rentable Area rendered untenantable by such
damage bears to the total Premises Rentable Area. In the event (i) the
uninsured portion of any damage to or destruction of the Building equals or
exceeds ten percent (10%) of the replacement cost of the Building; or (ii)
the Term will expire within one (1) year from the date of any material damage
to or destruction of the Premises; or (iii) the damage cannot, in Landlord's
reasonable opinion, be repaired within one hundred twenty (120) days,
Landlord shall have the option either (a) to repair such damage, this Lease
continuing in full force and effect but with the Rent proportionately reduced
upon the conditions and as provided above, or (b) at any time within
thirty (30) days after the occurrence of such damage, to give notice to
Tenant terminating this Lease as of a date specified in such notice, which
date shall not be less than thirty (30) nor more than sixty (60) days after
the giving of such notice. If Landlord elects to terminate this Lease by
giving such notice of termination to Tenant, this Lease and all interest of
Tenant in the Premises shall terminate on the date specified in such notice,
and the Rent, proportionately reduced as provided above, shall be paid up to
the date of such termination, with Landlord refunding to Tenant any Rent
previously paid for any period of time subsequent to such date. If Landlord
elects or is required to repair the Premises or the Building under this
Section 22, Landlord shall repair at its cost any injury or damage to the
Building and the leasehold improvements in the Premises, and Tenant shall be
responsible for and shall repair at its sole cost all fixtures, equipment,
furniture or any other property of Tenant in the Premises. Tenant shall not
be entitled to any compensation or damages from Landlord for damage to any of
Tenant's fixtures, personal property or equipment, for loss of use of all or
any part of the Premises, for any damage to Tenant's business or profits, or
for any disturbance to Tenant caused by any casualty or the restoration of
the Premises following such casualty.
23. DEFAULT.
The occurrence of any one or more of the following events shall constitute a
default and breach of this Lease by Tenant (collectively, an "Event of
Default"):
(a) The failure of Tenant to pay any installment of Rent on or
before the date such installment is due and such delinquency or failure to pay
shall continue for ten (10) days after written notice from Landlord.
(b) The failure by Tenant to observe or perform any of the
provisions of this Lease to be observed or performed by Tenant, other than as
described in Section 23(a), where such failure shall continue for a period of
fifteen (15) days after notice of such failure by Landlord to Tenant;
provided, however, that if the nature of Tenant's default is such that more
than fifteen (15) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commences such cure within
such fifteen (15) day period and thereafter diligently prosecutes such cure
to completion.
(c) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing of any action by or
against Tenant under any insolvency, bankruptcy, reorganization, moratorium,
or other debtor relief statute, whether now or hereafter existing, (unless in
the case of such action taken against Tenant, the same is dismissed within
sixty (60) days); or the appointment of a trustee or a receiver to take
possession of substantially all of Tenant's assets located at the Premises or
of Tenant's interest in this Lease, where possession is not restored to
Tenant within thirty (30) days; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged in ten (10) days; or the admission by Tenant in writing of the
inability to pay its debts as they become due.
(d) If this Lease or all or any part of the estate or interest
of Tenant under this Lease or created by this Lease shall be assigned,
subleased, mortgaged, encumbered or otherwise disposed of without compliance
with the provisions of this Lease.
24. REMEDIES IN DEFAULT.
(a) Upon the occurrence of an Event of Default, Landlord shall
have the option to take any one or more of the following actions without
notice or demand, in addition to and not in limitation of any other remedy
permitted by law or by this Lease.
(i) Terminate this Lease, at which time Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails to do so,
Landlord may expel or remove Tenant and its property and retake possession of
the Premises without liability for any prosecution or any claim for damages
by reason of such re-entry. Tenant further agrees to indemnify Landlord for
all loss and damage suffered by Landlord by reason of such termination,
including loss of Rent for the remainder of the Term.
(ii) Enter upon and take possession of the Premises as
Tenant's agent without terminating this Lease and without liability to
prosecution of any claim for damages by reason of such re-entry, and relet
the Premises as Tenant's agent and receive rent for such reletting. Tenant
agrees to pay to Landlord on demand for any costs incurred by Landlord
through such reletting, including costs of renovating or repairing the
Premises for a new tenant and for any deficiency that may arise between the
amount of rent due for the remainder of the Term and that received by
Landlord from reletting the Premises.
(iii) Landlord may do whatever Tenant is obligated to do
under the terms of this Lease and in order to accomplish this purpose
Landlord may enter the Premises without liability to prosecution or any claim
for damages arising from Landlord's entering the Premises to satisfy Tenant's
obligations under this Lease. Tenant shall reimburse Landlord for any
expenses Landlord may incur in effecting compliance with this Lease on
Tenant's behalf. Tenant further agrees that Landlord shall not be liable for
any damages which may result to Tenant from such action by Landlord, whether
caused by Landlord's negligence or otherwise.
(b) In the event of any termination of this Lease, Tenant shall
pay the Base Rent, Additional Charges, Taxes, Expenses and all other amounts
payable under this Lease up to the time of such termination, and thereafter
Tenant, until the end of what would have been 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 Base Rent, Additional Charges, Taxes, Expenses and all other
amounts payable under this Lease had such termination not occurred, less the
net proceeds, if any, of any reletting of the Premises, after deducting all
expenses in connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, legal expenses, advertising
and marketing costs, expenses of employees, and expenses of preparation for
such reletting. Tenant shall pay such current damages to Landlord monthly on
the days on which the Base Rent, Additional Charges, Taxes, Expenses and all
other amounts payable under this Lease which would have been payable had this
Lease not been terminated.
(c) At any time after the termination of this Lease, whether or
not Landlord shall have collected any current damages pursuant to Section
24(b), as liquidated final damages, and in lieu of all current damages
payable by Tenant pursuant to Section 24(b) thereafter, at Landlord's
election, Tenant shall pay to Landlord an amount which at the time of such
election represents the then value of the excess, if any, of (1) the Base
Rent, Additional Charges, Taxes, Expenses and all other amounts payable under
this Lease which would have been payable by Tenant (conclusively presuming
the annual payments with respect to Base Rent, real estate taxes and expense
escalation obligations to be the same as were payable for the preceding year)
for the period commencing with the date of Landlord's election and ending
with the date contemplated as the expiration date hereof if this Lease had
not so terminated, over (2) the aggregate fair market rental value of the
Premises for the same period.
25. EMINENT DOMAIN.
In the event the Building, Premises, or any portion of the Building or the
Premises shall be taken or condemned in whole or in part for public purposes
then the Term shall, at the option of Landlord, forthwith cease and
terminate, and Landlord shall receive the entire award, including any award
for the value of the leasehold estate created under this Lease. In the event
Landlord does not terminate as herein provided, Rent shall abate in
proportion to the portion of the Premises taken by such condemnation or other
taking.
26. ESTOPPEL CERTIFICATE.
At any time and from time to time but on not less than ten (10) business
days' prior notice by Landlord, Tenant shall promptly execute, acknowledge
and deliver to Landlord, and, at Landlord's request, to any prospective
purchaser, ground lessor, or mortgagee, a certificate certifying (a) that
Tenant has accepted the Premises (or, if Tenant has not done so, that Tenant
has not accepted the Premises and specifying the reasons for not accepting
them); (b) the Commencement and Expiration Dates; (c) that this Lease is
unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect as modified and
stating the date and nature of each modification); (d) the dates, if any, to
which Rent has been paid; (e) whether or not there are then existing any
defenses against the enforcement of any of the obligations of Tenant under
this Lease (and, if so, specifying same); (f) whether or not there are then
existing any defaults by Landlord in the performance of its obligations under
this Lease (and, if so, specifying same); and (g) such other matters as may
be reasonably requested by Landlord. Any such certificate may be relied upon
by Landlord and by any prospective purchaser, ground lessor, or mortgagee
considering the purchase of or a loan on all or any part of the Building or
interest in the Building. Tenant shall indemnify and hold Landlord harmless
from and against all costs, damages, expenses, liabilities and fees,
including, without limitation, reasonable attorneys' fees and any
consequential damages or lost profits, arising from or in any way related to
or connected with Tenant's failure to deliver any such certificate within the
time specified in this Section 26.
27. AUTHORITY OF PARTIES.
If Tenant is a corporation or partnership, each individual executing this
Lease on behalf of Tenant represents and warrants that he is duly authorized
to execute and deliver this Lease on behalf of Tenant, that Tenant is a duly
authorized and existing entity, that Tenant has and is qualified to do
business in Massachusetts, that Tenant has full right and authority to enter
into this Lease, and that this Lease is binding upon such corporation or
partnership in accordance with its terms. Upon Landlord's request, Tenant
shall provide Landlord with evidence reasonably satisfactory to Landlord
confirming the foregoing representations and warranties.
28. BROKERS.
Tenant warrants that it has had no dealings with any real estate broker or
agent in connection with the negotiation of this Lease excepting only the
brokers specified in the Basic Lease Information, and it knows of no other
real estate broker or agent who is entitled to a commission in connection
with this Lease. Tenant agrees to indemnify Landlord and hold Landlord
harmless from and against any and all claims, demands, losses, liabilities,
lawsuits, judgments, costs and expenses (including reasonable attorneys'
fees) with respect to any leasing commission or equivalent compensation
alleged to be owing on account of Tenant's dealings with any real estate
broker or agent other than as specified in the Basic Lease Information.
29. GENERAL PROVISIONS.
(a) Waiver. The waiver by Landlord or Tenant of the other
party's failure to perform or observe any provision of this Lease shall not
be deemed to be a continuing waiver of such provision or a waiver of any
subsequent failure of Landlord or Tenant to perform or observe the same or
any other such provision, and no custom or practice which may develop between
the parties during the Term shall be deemed a waiver of, or in any way
affect, the right of Landlord or Tenant to insist upon performance and
observance by the other party in strict accordance with the terms of this
Lease.
(b) Notices. Any bills, statements, notices, demands, requests
or other communications given or required to be given under this Lease shall
be effective only if rendered or given in writing, sent by a recognized
overnight courier service or delivered personally, (a) to Tenant (i) at
Tenant's address set forth in the Basic Lease Information, if sent prior to
Tenant's taking possession of the Premises, or (ii) at Tenant's address at
the Building, if sent subsequent to Tenant's taking possession of the
Premises, or (iii) at any place where Tenant or any agent or employee of
Tenant may be found if sent subsequent to Tenant's vacating, deserting,
abandoning, or surrendering the Premises, or (b) to Landlord at Landlord's
address set forth in the Basic Lease Information, or (c) to such other
address as either Landlord or Tenant may designate as its new address for
such purpose by notice given to the other in accordance with the provisions
of this Section 29(b). Any such bill, statement, notice, demand, request or
other communication shall be deemed to have been rendered or given one (1)
day after the date when it shall have been mailed as provided in this
Section 29(b) if sent by a recognized overnight courier service, or upon the
date personal delivery is made or refused. If Tenant is notified of the
identity and address of Landlord's mortgagee or ground or underlying lessor,
Tenant shall give to such mortgagee or ground or underlying lessor notice of
any default by Landlord under the terms of this Lease in writing sent by a
recognized overnight courier service, and such mortgagee or ground or
underlying lessor shall be given a reasonable opportunity to cure such
default prior to Tenant exercising any remedy available to it.
(c) Examination of Lease. Submission of this instrument to
Tenant for its execution does not constitute a reservation, offer or option
for a lease, and this instrument is not and shall not be deemed to be
effective as a lease or otherwise until its execution and delivery by both
Landlord and Tenant. This Lease may be executed in counterparts and, when
all counterpart documents are executed, the counterparts shall constitute a
single binding instrument.
(d) Captions. The captions of this Lease are for convenience
of reference only and shall have no effect upon the construction or
interpretation of any provision of this Lease.
(e) Definitions. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. The words used in
the neuter gender include the masculine and feminine. If the Tenant is more
than one entity, the obligations under this Lease imposed on Tenant shall be
joint and several.
(f) Time. Time is of the essence of this Lease and each and
all of its provisions in which performance is a factor.
(g) Successors and Assigns. The terms, covenants and
conditions contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided herein, their
respective personal representatives and successors and assigns; provided,
however, upon the sale, assignment or transfer by the Landlord named herein
(or by any subsequent landlord) of its interest in the Building as owner or
lessee, including any transfer by operation of law, the Landlord named herein
(or any subsequent landlord) shall be relieved from all subsequent
obligations or liabilities under this Lease, and all obligations subsequent
to such sale, assignment or transfer (but not any obligations or liabilities
that have accrued prior to the date of such sale, assignment or transfer)
shall be binding upon the grantee, assignee or transferee of such interest,
and any such grantee, assignee or transferee, by accepting such interest,
shall be deemed to have assumed such subsequent obligations and liabilities.
(h) Recordation. Tenant may record a notice of this Lease in
the form of Exhibit F hereto. In the event that a notice of Lease is
consented to by Landlord and such notice of Lease is recorded, Tenant agrees
to execute a discharge or release of such notice of Lease upon the expiration
or earlier termination of this Lease. Tenant further agrees that should
Tenant fail to execute such discharge or release, that Tenant shall appoint
Landlord its attorney-in-fact and give Landlord such power of attorney for
the sole purpose of executing a discharge or release of such notice of Lease
on behalf of Tenant.
(i) Quiet Possession. Upon Tenant paying the Rent reserved
under this Lease and observing and performing all of the provisions of this
Lease, Tenant shall have quiet possession of the Premises for the entire
Term, subject to all the provisions of this Lease.
(j) Prior Agreements. This Lease contains all of the
agreements of the Landlord and Tenant with respect to any matter covered or
mentioned in this Lease, and no prior agreements or understandings pertaining
to any such matters shall be effective for any purpose. No provision of this
Lease may be amended or added to except by an agreement in writing signed by
the parties or their respective successors in interest. Tenant acknowledges
that in executing and delivering this Lease, Tenant is not relying on any
verbal or written understanding, promise or representation outside the scope
of this Lease and not described or referred to herein.
(k) Attorneys' Fees. In the event of any action or proceeding
brought by either party against the other under this Lease, the prevailing
party shall be entitled to recover all costs and expenses including its
attorneys' fees in such action or proceeding in such amount as the court may
adjudge reasonable. The prevailing party shall be determined by the court
based upon an assessment of which party's major arguments made or positions
taken in the proceedings could fairly be said to have prevailed over the
other party's major arguments or positions on major disputed issues in the
court's decision. If the party which shall have commenced or instituted the
action, suit or proceeding shall dismiss or discontinue it without the
concurrence of the other party, such other party shall be deemed the
prevailing party.
(l) Subordination; Attornment. Without the necessity of any
additional document being executed by Tenant for the purpose of effecting a
subordination, this Lease shall be subject and subordinate at all times to:
(i) all ground leases or underlying leases which may now exist or hereafter
be executed affecting the Building or the Land or both, and (ii) the lien of
any mortgage or deed of trust which may now exist or hereafter be executed in
any amount for which the Building, Land, ground leases or underlying leases
or Landlord's interest or estate in any of such liens is specified as
security, provided that the lessees under such ground or underlying leases,
and the mortgagees or beneficiaries named in such mortgages or deeds of
trust, shall agree to recognize the interest of Tenant under this Lease in
the event of foreclosure, if Tenant is not then in default. Landlord agrees
to use commercially reasonable efforts to obtain and deliver to Tenant a non-
disturbance agreement executed and delivered by Landlord's fee
mortgagee/lender, in said fee mortgagee/lender's standard form.
Notwithstanding the foregoing, Landlord shall have the right to subordinate
or cause to be subordinated any such ground leases or underlying leases or
any such liens to this Lease. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or deed of trust
is foreclosed or a conveyance in lieu of foreclosure is made for any reason,
Tenant shall, notwithstanding any subordination, attorn to and become the
Tenant of the successor in interest to Landlord, at the option of such
successor in interest. The provisions of this paragraph shall be self-
operative and no further instrument shall be required to effect the
provisions of this paragraph. Notwithstanding the foregoing, Tenant
covenants and agrees to execute and deliver, upon demand by Landlord and in
the form requested by Landlord, any additional documents evidencing the
priority or subordination of this Lease with respect to any such ground
leases or underlying leases or the lien of any such liens.
(m) Names. Tenant shall not use the name of the Building or of
the development in which the Building is situated for any purpose other than
as an address of the business to be conducted by Tenant in the Premises.
(n) Separability. Any provision of this Lease which shall
prove to be invalid, void, illegal or unenforceable shall in no way affect,
impair or invalidate any other provisions of this Lease, and such other
provisions and this Lease shall remain in full force and effect.
(o) Cumulative Remedies. No remedy or election under this
Lease shall be deemed exclusive but shall, wherever possible, be cumulative
with all other remedies at law or in equity.
(p) Choice of Law. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
(q) Signs and Building Name. Tenant shall not place any sign
upon the Premises, Building or Land without Landlord's prior consent, such
consent not to be unreasonably withheld, delayed or conditioned. All signs
so consented to by Landlord and placed by Tenant upon or in the Premises
shall comply in all respects with size, design, lettering and material
guidelines established by Landlord for the Building. Landlord reserves the
right to change or alter such guidelines at such times and for such tenants
as Landlord may determine in its sole and absolute discretion.
(r) No Merger. The voluntary or other surrender of this Lease
by Tenant, or a mutual cancellation of this Lease, shall not constitute a
merger, and shall, at the option of Landlord, terminate all or any existing
subleases or subtenancies or may, at the option of Landlord, operate as an
assignment to Landlord of any or all such subleases or subtenancies.
(s) Jury Trial. Tenant and Landlord waive the right to a jury
trial in any action brought under this Lease or arising out of the
landlord/tenant relationship.
(t) Force Majeure. In the event Landlord shall be delayed,
hindered, or prevented from the performance of any act required under this
Lease by reason of act of God; act of common enemy; fire, storm, flood,
explosion or other casualty; strike, lockouts, labor disputes, labor
troubles; inability to procure materials; failure of power; restrictive
governmental laws or regulations; riots; insurrection; war; settlement of
losses with insurance carriers; injunction; order of any court or
governmental authority; or other cause not within the reasonable control of
Landlord, then the performance of such act shall be excused for the period of
the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
(u) Financial Statements. Upon Landlord's written request from
time to time (but not more frequently than once per year), Tenant shall
promptly furnish Landlord with certified financial statements reflecting
Tenant's then-current financial condition, in such form and detail as
Landlord may reasonably request; provided, however, that if the stock of
Tenant is traded on a national exchange, Tenant may furnish a copy of the
annual report filed with the Securities and Exchange Commission instead of
financial statements.
(v) Compliance with Americans with Disabilities Act.
Notwithstanding any provision of this Lease to the contrary, Tenant is and
shall be solely responsible for assuring that the Premises at all times
comply in full with the Americans with Disabilities Act, 42 USC Section 12181
et seq. (the "Act") as now or hereafter amended, and all regulations now or
hereafter promulgated pursuant to the Act (the "Regulations"), including but
not limited to any remodeling or alterations done to the Premises. Tenant is
and shall be solely responsible for all costs and expenses associated with
complying with the Act and the Regulations, whether such expenditures are
capital or otherwise. Tenant acknowledges that Landlord makes no
representations or warranties regarding the Premises' compliance with the Act
or Regulations. Tenant shall indemnify and defend Landlord against, and hold
Landlord harmless from any and all claims, demands, causes of action, suits,
lawsuits, costs and expenses (including, but not limited to, reasonable
attorneys' fees and litigation costs), damages, penalties and fines asserted
against, or suffered or incurred by, Landlord in any way relating to or
arriving from, in whole or in part, an actual or asserted claim that Premises
or any portion of the Premises, is in violation of the Act or the
Regulations.
(w) Limitation on Landlord Liability. Neither the
shareholders, investors, officers, directors, trustees, employees,
individuals, or partners comprising Landlord, nor the shareholders,
investors, directors, trustees, officers, or partners of any of the foregoing
(collectively, the "Parties") shall be liable for the performance of
Landlord's obligations under this Lease. Tenant shall look solely to
Landlord to enforce Landlord's obligations under this Lease and shall not
seek any damages against any of the Parties. Tenant shall not look to the
property or assets of Landlord, excepting only the Building, or of any of the
Parties, in seeking to enforce Landlord's obligations under this Lease or to
satisfy a judgment for Landlord's failure to perform such obligations.
(x) Exhibits. The Exhibits listed in the Table of Contents to
this Lease are incorporated herein by reference and shall be read and
construed as if they formed a part hereof.
[Balance of Page Intentionally Left Blank
IN WITNESS WHEREOF, each of Landlord and Tenant has caused this Lease
to be duly executed and delivered as an instrument under seal as of the date
first written above.
LANDLORD:
TELECOM REALTY, LLC, a Massachusetts
limited liability company
By: TELECOM MANAGEMENT CORP., a
Massachusetts corporation, its
manager
By:
Thomas Fabbricatore
Executive Vice-President and
Secretary-Treasurer
TENANT:
CTC COMMUNICATIONS CORP., a Massachusetts
corporation
By:
Name:
Title:
EXHIBIT A
PREMISES
[Plans(s) to be attached by Landlord
EXHIBIT A-1
PLAN OF COMMON AREAS
[Plans(s) to be attached by Landlord]
EXHIBIT B
TENANT IMPROVEMENT WORKLETTER
This Exhibit B and the provisions of the Lease set forth the terms
and provisions which shall govern the performance of Tenant's Work (as
hereinafter defined).
1. Definitions
As used in this Exhibit B, all capitalized terms shall have the
same meanings as defined in the Lease unless otherwise defined herein. In
addition, the following terms shall have the following respective meanings:
A. "Tenant's Work" shall mean the work to be performed by
Tenant in preparing the Premises for Tenant's occupancy, as more particularly
described in Section 4(b) of the Lease;
B. "Plans" shall mean complete plans, working drawings,
specifications and information necessary for the performance of Tenant's
Work; and
C. "Tenant's Work Rules" shall have the meaning provided in
Section 2 hereof.
2. Conditions to Performance of Tenant's Work
All Tenant's Work shall be performed subject to, and in accordance with
the requirements of Exhibit B-1 attached hereto entitled "Tenant Construction
Work at 115-125 Second Avenue, Waltham, MA" (referred to herein as "Tenant's
Work Rules"). Landlord agrees that:
A. Wherever the consent or approval of Landlord or Landlord's
Construction Representative is required under the Tenant's Work Rules or
hereunder, such consent or approval shall not be unreasonably withheld,
delayed or conditioned. Landlord and Landlord's Construction Representative
shall respond to any request for consent or approval under the Tenant's Work
Rules or hereunder as promptly as possible based upon the nature of such
request and, where specific time periods for consent or approval are set
forth in the Tenant's Work Rules or hereunder, within such time periods.
B. All Tenant's Work shall be performed in compliance with:
(i) all applicable laws, rules, orders and regulations of governmental
authorities having jurisdiction thereof; (ii) orders, rules and regulations
of any Board of Fire Underwriters, and governing insurance rating bureaus;
and (iii) the approved (i.e. by Landlord) Plans for Tenant's Work. All
Tenant's Work shall be performed in a first-class good and workmanlike
manner.
3. Preparation of Tenant's Plans; Plan Requirements; Approval by
Landlord
(a) Tenant shall submit to Landlord, for Landlord's approval,
complete Plans necessary for the performance of Tenant's Work.
(b) The Plans shall be fully detailed and coordinated, shall
show complete dimensions, shall have designated thereon all points of
location and other matters required to perform Tenant's Work and shall
consist of the final plans and specifications (including air-conditioning,
ventilating, electrical, and plumbing design drawings and specifications, if
any) prepared by Tenant's licensed interior architect or designer and
engineer approved by Landlord to describe the manner in which Tenant intends
to finish the Premises. Each submission shall consist of three (3) sets of
the relevant Plans. Notwithstanding the foregoing, Tenant may submit to
Landlord for approval two separate submission of Plans at different times,
one submission consisting of the architectural and structural Plans and the
other submission consisting of the mechanical, electrical, plumbing and
sprinkler Plans. Submissions shall identify changes from prior submissions.
After approval by Landlord of any Plans, any changes thereto from time to
time made by Tenant shall be approved by Landlord in accordance with
subsection (c) below. All Plans shall comply with and conform to all legal
requirements relating to the Building.
(c) Landlord's review and approval of Tenant's Plans shall be
as to layout only and shall not be deemed to be an approval of the legality
of the Plans, the cost of Tenant's Work, or whether the Plans will satisfy
Tenant's needs. Subject to the preceding sentence, after approval by
Landlord, the Plans shall not be changed or modified in any respect by Tenant
in any way which affects the HVAC (on a Building-wide basis), plumbing,
electrical or other systems of the Building, or the structure of the
Building, without the further approval in writing by Landlord in accordance
with this subsection (c) below. Landlord will not unreasonably withhold its
approval of any Plans or any change or modification thereof. Landlord shall
specify in reasonable detail any objections to any of such Plans or changes
thereto, as the case may be. Provided that any such request shall specify
that failure to disapprove the same within ten (10) Business Days shall be
deemed approval thereof, failure to timely disapprove any such Plans or
changes thereto shall, for all purposes of the Lease and this Exhibit B, be
deemed to be approval thereof, in writing, by Landlord. No Tenant's Work
shall be commenced prior to the approval (or deemed approval) by Landlord of
Plans therefor. Tenant shall have the right, subject to the terms and
provisions of the Lease and this Exhibit B, to perform Tenant's Work shown on
any Plans, or any changes thereto, approved by Landlord.
4. Performance of Tenant's Work; Tenant's Cost
(a) Tenant shall complete Tenant's Work in accordance with the
approved Plans no later than one (1) year after the Commencement Date of the
Lease. Tenant's Work shall be completed at Tenant's sole cost and expense.
(b) Tenant shall perform all of Tenant's Work by contracting
separately with a contractor approved by Landlord.
(c) Upon completion of Tenant's Work, Tenant shall deliver to
Landlord three (3) complete sets of Tenant's Plans, as changed, and shop
drawings.
5. Landlord Cooperation with Tenant's Filings for Governmental
Approvals
Landlord shall cooperate with Tenant, in such manner as Tenant
may reasonably request, in connection with any filings which Tenant is
required to make with appropriate governmental authorities in connection with
the performance of Tenant's Work. Such cooperation shall include, without
limitation, the prompt execution of all documents, instruments, and
certificates as are reasonably required by such governmental authorities in
connection with the performance of Tenant's Work.
6. Loading Docks
A. Subject to causes beyond Landlord's reasonable control,
access to the Building will be made available to Tenant and Tenant's
contractor seven (7) days per week, twenty-four (24) hours per day.
B. All deliveries (whether incoming or outgoing) may be
subject to reasonable inspection.
7. Trash Disposal; Garbage
A. All construction and related debris, trash and garbage
shall be disposed of only in Tenant's dumpsters, at Tenant's sole expense.
Tenant shall be responsible for pest and vermin control arising out of or
caused by the performance of Tenant's Work and/or the disposal of such
debris, trash and garbage.
B. Portable trash containers shall be stored by Tenant's
contractors in the portions of the Premises where Tenant is performing
Tenant's Work.
8. Access
A. All Tenant's construction employees, service vendors,
vendor service contractors, technicians, delivery personnel, messenger and
construction related personnel shall use the loading docks as the only means
of ingress to and egress from the Building (unless otherwise mutually agreed
to by Landlord and Tenant) and shall provide reasonable identification.
B. Keys required for access to the Premises shall be provided
to Tenant and Tenant's contractors.
9. Site Office
A. Tenant or Tenant's contractor shall construct an
appropriate site office for personnel and materials within the Premises.
B. Subject to reasonable security requirements imposed by
Landlord and causes beyond Landlord's reasonable control, access to the
portions of the Premises in which Tenant's Work may be performed hereunder
and the site office will be made available to Tenant and Tenant's contractors
seven (7) days per week, twenty-four (24) hours per day.
10. Coordination of Landlord's Work and Tenant's Work
The parties acknowledge that both Tenant and Landlord may be
performing work in the same areas. Therefore, the parties hereby agree to
use all reasonable efforts to coordinate the scheduling and performance of
such work so that each may prosecute such work in an efficient and timely
manner.
11. Insurance
A. Prior to the commencement of Tenant's Work, Tenant shall
deliver to Landlord a true copy of all insurance policies or certificates of
insurance issued in conformity with Section 11B below, for the insurance
coverages described below, which shall name (1) Tenant and (except with
respect to the workers' compensation and disability insurance, described in
clause (ii) below) Landlord as insured parties; and (2) Landlord's
Construction Representative and each ground lessor and mortgagee named in
writing to Tenant as additional insureds:
(i) commercial general liability insurance, such
insurance to be on an occurrence basis and to insure against liability for
bodily injury and death and for property damage occurring in, on or about the
Premises with respect to Tenant's Work, and the performance thereof, in an
amount not less than $5,000,000 in the event of personal injury to any number
of persons or damage to property arising out of any one occurrence, such
insurance to include premises operations liability, independent contractor's
coverage, products/completed operations for at least a period of two (2)
years beyond completion, broad-form comprehensive general liability
endorsement, cross-liability and, if any operations to which the "XCU
Exclusion" would be applicable, an endorsement that such operations are
covered and the "XCU Exclusions" have been deleted;
(ii) workers' compensation and statutory disability
providing statutory State benefits for all persons employed in connection
with Tenant's Work at or in connection with the Premises; and statutory
employer's liability; and
(iii) "all-risk" builder's risk insurance with respect to
Tenant's Work and materials stored on the Premises or in the Building,
written on a completed value, replacement cost basis. Such insurance shall
be in an amount not less than ninety percent (90%) of the actual replacement
cost of Tenant's Work and such materials, which replacement value shall be
determined from time to time, and approved by the insurers, it being agreed
that no omission on the part of a party to request any such determination
shall relieve Tenant of its obligation to have such replacement value
determined as aforesaid. Such insurance shall contain the waiver of
subrogation or right for Tenant to waive its claims against Landlord and an
endorsement stating that "permission is granted to complete and occupy".
Said insurance policies shall be kept in full force and effect until the
Tenant's Work has been fully completed and the Tenant's Work Completion
Criteria have been satisfied in accordance with Section 4(e).
B. All insurance required pursuant to this Section 11 shall be
effected with insurers in a financial size category of not less than IX and
with a general policy holders ratings of not less than A-, as rated in the
most current available "Bests" insurance reports, or the then equivalent
thereof, authorized to do business in the Commonwealth of Massachusetts under
valid and enforceable policies. Such insurance shall provide that such
policy shall not be cancelled (including for non-payment of premium), allowed
to lapse or modified to reduce coverage without at least thirty (30) days'
prior written notice to each insured named therein.
[Balance of Page Intentionally Left Blank]
EXHIBIT B-1
TENANT CONSTRUCTION WORK AT 115-125 SECOND AVENUE, WALTHAM, MA
RULES AND REGULATIONS
1. DEFINITIONS
1.1 Building: 115-125 Second Avenue, Waltham, MA.
1.2 Landlord's
Construction
Representative: ________________________, or such other
Construction Representative as Landlord
may designate, from time to time.
1.3 Consultant: Any architectural, engineering or design
consultant engaged by Tenant in
connection with Tenant's Work.
1.4 Contractor: Any Contractor engaged by Tenant for the
performance of any Tenant's Work, and any
Subcontractor employed by any such
Contractor.
1.5 Plans: As defined in Section 1B of Exhibit B.
Plans must be prepared and stamped by
professionals registered in
Massachusetts.
1.6 Business Hours: Monday - Friday, 8:00 AM to 6:00 PM,
holidays excluded.
1.7 Tenant: Telecom Realty, LLC
1.8 Tenant's Work: Any alterations, improvements, additions,
repairs or installations in the Building
performed by or on behalf of Tenant prior
to Tenant's receipt of a certificate of
occupancy for the Premises.
1.9 Tradesperson: Any employee (including, without
limitation, any mechanic, laborer, or
tradesperson) employed by a Contractor
performing Tenant's Work.
2. GENERAL
2.1 All Tenant's Work shall be performed in accordance with these
Rules and Regulations.
2.2 The provisions of these Rules and Regulations shall be
incorporated in all agreements governing the performance of
Tenant's Work, including, without limitation, any agreements
governing services to be rendered by each Contractor and
Consultant.
2.3 Except as otherwise provided in these Rules and Regulations, all
inquiries, submissions and approvals in connection with any
Tenant's Work shall be processed through Landlord's Construction
Representative.
2.4 The quality of construction will be consistent with that of a
first-class office/data center use building in the City of
Waltham, MA.
3. PLANS
3.1 Review and
Approval: See Section 3 of Exhibit B.
3.2 Submission
Requirements: Tenant shall, at the earliest possible
time, furnish to Landlord's Construction
Representative three (3) sets of Plans
describing any Tenant's Work.
4. PRECONSTRUCTION NOTIFICATION AND APPROVALS
4.1 Approval to Commence Work
a. Tenant shall submit to Landlord's Construction
Representative, for the approval of Landlord's Construction
Representative, the names of all prospective Contractors
prior to issuing any bid packages to such Contractors.
b. No Tenant's Work shall be undertaken by any Contractor or
Tradesperson unless and until all the matters set forth in
Paragraph 4.2 below have been received for the Tenant's
Work in question and unless Landlord's Construction
Representative has approved the matters set forth in
Paragraph 4.2 below.
4.2 Commencement of Work
No Tenant's Work shall be performed unless, at least one week
before any Tenant's Work is to begin, all of the following has
been provided to Landlord's Construction Representative and
approved. Landlord's Construction Representative shall respond
to any request for approval by Tenant under this Section 4.2 as
promptly as possible based upon the nature of such request. In
the event that Tenant proposes to change any of the following,
Landlord's Construction Representative shall be immediately
notified of such change and such change shall be subject to the
approval of Landlord's Construction Representative:
a. Schedule for the work, indicating material deliveries, any
phasing and special working hours.
b. List of all Contractors and Subcontractors, including
addresses, telephone numbers, trades employed, and the
union affiliation, if any, of each Contractor and
Subcontractor.
c. Names and telephone numbers of the supervisors of the work.
d. Copies of all necessary governmental permits, licenses and
approvals.
e. Proof of current insurance, to the limits set out in
Exhibit B-1A to these Rules and Regulations, naming
Landlord as an additional insured.
f. To the best of Tenant's knowledge, notice of the
involvement of any Contractor in any ongoing or threatening
labor dispute which affects or may affect the Building.
g. Evidence that Tenant has made provision for either written
waivers of lien from all Contractors and suppliers of
material, or other appropriate protective measures approved
by Landlord.
h. Tenant's safety program which shall be consistent with the
requirements of local ordinances and officials.
4.3 Reporting Incidents
All accidents, disturbances, labor disputes or threats thereof
known to Tenant or its Contractors pertaining to the Building or
Tenant's property and recordable under OSHA or the rules and
regulations promulgated thereunder, as the same may be amended
from time to time, shall be reported to Landlord's Construction
Representative on the day when such event becomes known to Tenant
or its Contractors. A written report must follow as soon as
reasonably practicable and in any event within 72 hours.
5. CONSTRUCTION SCHEDULE
5.1 Coordination
Tenant and its Contractors, during the performance of Tenant's
Work, shall use commercially reasonable efforts to minimize
discomfort, inconvenience and annoyance to any other tenants and
occupants of the Building and the public at large.
5.2 Time Restrictions
a. Subject to Paragraph 5.1 of these Rules and Regulations,
general construction work will generally be permitted at
all times, including during Business Hours.
b. If coordination, labor disputes or other circumstances
reasonably require, Landlord's Construction Representative
may change the hours during which regular construction work
can be scheduled and/or restrict or refuse entry to and
exit from the Building by any Contractor.
6. CONTRACTOR PERSONNEL
6.1 Work in Harmony
a. All Contractors shall be responsible for employing skilled
and competent personnel and suppliers who shall abide by
the Rules and Regulations herein set forth as amended from
time to time by Landlord.
b. Tenant shall not at any time, either directly or
indirectly, employ, permit the employment, or continue the
employment of any Contractor if such employment or
continued employment will or does interfere or cause any
labor disharmony, coordination difficulty, delay or
conflict with any other contractors engaged in construction
work in or about the Building. Landlord shall not,
directly or indirectly employ, permit the employment or
continue the employment of any contractor if such
employment or continued employment will or does interfere
or cause any labor disharmony, coordination difficulty,
delay or conflict with any Contractors engaged by Tenant.
The foregoing agreement by Landlord shall not apply to
contractors engaged by Landlord to provide or perform
services in or to the Building.
c. Should a work stoppage or other action occur anywhere in or
about the Building as a result of the presence, anywhere in
the Building, of a Contractor engaged directly or
indirectly by Tenant, or should such Contractor be deemed
by Landlord to have violated any applicable Rules or
Regulations, and if the same shall be continuing for 24 or
more hours after Landlord has given Tenant written notice
thereof, Landlord may, without incurring any liability to
Tenant or said Contractor, require any such Contractor to
vacate the Premises and the Building, and to cease all
further construction work therein.
6.2 Conduct
a. While in or about the Building, all Tradespersons shall
perform in a dignified, quiet, courteous, and professional
manner at all times. Tradespersons shall wear clothing
suitable for their work and shall remain fully attired at
all times. All Contractors will be responsible for their
Tradesperson's proper behavior and conduct.
b. The Landlord's Construction Representative reserves the
right, upon twenty-four (24) hours' written notice to
Tenant, to require the removal of any person who, or any
Contractor which, is causing a disturbance to any tenant or
occupant of the Building or any other person using or
servicing the Building or is materially adversely
interfering with the work of others, unless such person or
Contractor is performing Tenant's Work in accordance with a
construction schedule previously approved by Landlord.
6.3 Access
a. No Contractor or Tradesperson will be permitted to enter
any private or public space in the Building, other than the
common areas of the Building necessary to give direct
access to the Premises for which he has been employed,
without the prior approval of Landlord's Construction
Representative.
b. Tenant shall require its Contractors to obtain permission
from Landlord's Construction Representative prior to
undertaking work in any space outside of the Premises.
6.4 Safety
a. All Contractors shall police ongoing construction
operations and activities at all times, keeping the
Premises orderly, maintaining cleanliness in and about the
Premises, and ensuring safety and protection of all areas,
including truck docks, elevators, lobbies and all other
public areas which are used for access to the Premises.
b. All Contractors shall appoint a supervisor who shall be
responsible for all safety measures, as well as for
compliance with all applicable governmental laws,
ordinances rules and regulations such as, for example,
"OSHA" and "Right-to-Know" legislation.
c. Any damage caused by Tradespersons or other Contractor
employees shall be the responsibility of Tenant. Costs for
repairing such damage shall be charged directly to Tenant.
6.5 Parking
a. Parking is not allowed in or near any truck docks, in any
handicapped or fire access lanes, or any private ways in or
surrounding the property. Vehicles so parked will be towed
at the expense of Tenant.
7. BUILDING MATERIALS
7.1 Delivery
All deliveries of construction materials shall be made at the
predetermined times coordinated with Landlord's Construction
Representative and shall be effected safely and expeditiously
only at the location determined by Landlord's Construction
Representative.
7.2 Storage and Placement
a. All construction materials shall be stored only in the
premises where they are to be installed. No storage of
materials will be permitted in any public areas, loading
docks or corridors leading to the premises.
b. No flammable, toxic or otherwise hazardous materials may be
brought in or about the Building unless (i) prior notice is
given to Landlord's Construction Representative, (ii) all
applicable laws, ordinances, rules and regulations are
complied with, and (iii) all necessary permits have been
obtained. Notwithstanding the foregoing, normal
construction materials which might otherwise be considered
flammable, toxic, or hazardous may be brought into the
Building, provided that the quantities of such materials
are limited to the amount necessary to perform Tenant's
Work, and further provided that such materials are handled
by Tenant strictly in accordance with Tenant's approved
safety program. All necessary precautions shall be taken
by the Contractor handling such materials against damage or
injury caused by such materials.
c. All materials required for the construction of the Premises
must conform with the Plans approved by Landlord, and must
be installed in the locations shown on the drawings
approved by Landlord.
d. All work shall be subject to reasonable supervision and
inspection by Landlord's Construction Representative.
e. No material changes to approved Plans will be made without
prior knowledge and approval of Landlord's Construction
Representative.
f. All protective devices (e.g., temporary enclosures and
partitions) and materials which protect public areas or
areas occupied by other tenants, as well as their
placement, must be approved by Landlord's Construction
Representative.
g. It is the responsibility of Contractors to ensure that the
temporary placement of materials does not impose a hazard
to the Building or its occupants, either through
overloading, or interference with Building systems, access,
egress or in any other manner whatsoever.
h. All new openings made through the floor slab for piping,
cabling, etc. must be "fire stopped" in a manner consistent
with all applicable codes and ordinances. All holes in the
floor slab at abandoned floor outlets, etc. will be filled
with solid concrete.
7.3 Salvages, Waste Removal and Cleaning
a. All rubbish, waste and debris shall be neatly and cleanly
removed from the Building by Contractors daily unless
otherwise approved by Landlord's Construction
Representative. The Building's trash compactor shall not
be used for construction or other debris.
b. Toxic or flammable waste is to be properly removed daily
and disposed of in full accordance with all applicable
laws, ordinances, rules and regulations.
c. Tenant's Contractor shall be responsible for maintaining
the loading area and related corridors in broom clean
condition when such areas are being used by Tenant's
Contractor. If such broom clean condition is not
maintained, and such failure continues for 24 hours or more
after written notice thereof to Tenant, Landlord may do so
at Tenant's cost and expense.
8. CABLING AND WELDING
All cabling, welding and heat cutting shall be performed in accordance
with Exhibit B-1B attached hereto.
9. PAYMENT OF CONTRACTORS
Tenant shall promptly pay the cost of all Tenant's Work so that the
Premises and the Building shall be free of liens for labor or
materials. If any mechanic's lien is filed against the Building or any
part thereof which is claimed to be attributable to Tenant, its agents,
employees or contractors, Tenant shall give immediate notice of such
lien to Landlord and shall promptly discharge the same by payment or
filing any necessary bond within 10 days after Tenant has first notice
of such mechanic's lien.
10. CONTRACTORS INSURANCE
Prior to commencing any Tenant's Work, and throughout the performance
of the Tenant's Work, each Contractor shall obtain and maintain
insurance in accordance with Exhibit B-1A attached hereto. Each
Contractor shall, prior to making entry into the Building, provide
Landlord with certificates that such insurance is in full force and
effect.
11. SUBMISSION UPON COMPLETION
a. Upon completion of any Tenant's Work and prior to taking
occupancy, Tenant shall submit to Landlord (i) a permanent
Certificate of Occupancy allowing Tenant to use the
Premises for the Permitted Use, and (ii) final approval of
Tenant's Work from any other governmental agencies having
jurisdiction.
b. Except to the extent there shall be a bona fide dispute
between the parties in question, upon completion of
Tenant's Work Tenant shall submit to Landlord a general
release for Tenant's Contractor including waivers of lien
from all contractors and suppliers of material in formats
approved by the Landlord.
[Balance of Page Intentionally Left Blank]
EXHIBIT B-1A
INSURANCE REQUIREMENTS FOR CONTRACTORS
Prior to the commencement of Tenant's Work, Tenant shall include in the
contract(s) which Tenant or its agents sign for such work the following
insurance and indemnity requirements to the extent that they are applicable.
Insurance certificates must be received prior to commencement of
construction. Landlord's Construction Representative and Landlord shall be
named as additional insured parties on all certificates.
Each Contractor and each Subcontractor shall, until the completion of
the Tenant's Work in question, procure and maintain at its expense, the
following insurance coverages with companies acceptable to Landlord in the
following minimum limits:
Workers' Compensation
(including coverage for Occupational Disease)
Limit of Liability
Workers' Compensation Statutory Benefits
Employer's Liability $500,000
Commercial General Liability
Limit of Liability
Bodily Injury and Property Damage $2,000,000 annual general
aggregate per location
Comprehensive Automobile Liability
(including coverage for hired and non-owned Automobiles)
Limit of Liability
Bodily Injury and Property Damage $1,000,000 per occurrence
Without limiting the foregoing, Tenant's General Contractor shall also
procure and maintain at its expense an umbrella liability insurance policy
with a minimum limit of liability of $5,000,000 annual general aggregate.
Such umbrella policy shall name Landlord and Landlord's Construction
Representative as additional insured parties and shall be evidenced by an
insurance certificate delivered to Landlord prior to commencement of
construction.
EXHIBIT B-1B
CABLING, WELDING AND HEAT CUTTING RULES
1. Installation of Cables
1.1 Computer and Telephone Cables
1.1.1 Layout
A layout of cables must be submitted to Landlord's
Construction Representative for approval prior to installation.
1.1.2 Installation
a. Cables installed above the ceiling must be teflon
coated or encased in metal conduit.
b. Cables must be tagged and/or color coded.
c. Cables must be properly affixed to the framing above
any duct work so that they are self-supporting and
are not to be fastened to light fixtures.
d. Cables must not sag and will be installed in the
shortest possible runs.
e. Connections (connectors, splices, etc.) must be
securely installed so that they will not pull apart
if cable is accidentally touched or pulled.
1.2 Electrical Floor Outlet Cables
1.2.1 Layout
A layout of cables must be submitted to Landlord's
Construction Representative for approval prior to installation.
1.2.2 Installation
a. Cables must be tagged and/or color coded.
b. Runs will be as short and as free of slack as
possible.
c. Cables are to be installed in Tenant's own ceiling.
d. Cables must be properly secured so that they are
self-supporting.
e. All connections (connectors, splices, etc.) must be
located in Tenant's own space to avoid damage from
below.
f. Cables must be secured with clamps where they pass
through the floor to prevent connections from
separating.
g. Where feasible, cables shall be installed above duct
work and other materials in the ceiling.
2. Welding and Heat Cutting Work
2.1 Welding and heat cutting activities as well as soldering and
brazing shall constitute "Special Work". To the extent that
Special Work shall not be identified on a construction schedule
previously approved by Landlord, Tenant shall provide Landlord's
Construction Representative with at least seventy-two (72) hours
notice before proceeding and such Special Work shall be performed
during periods outside of regular Business Hours. Landlord shall
use reasonable efforts to schedule the performance by Tenant of
such Special Work on shorter notice.
2.1.1 PERMITTING
The Contractor must obtain a permit from Landlord's Construction
Representative before commencing Special Work. See sample permit
attached hereto.
2.2 PRECAUTIONS
Because welding and other hot work is a fire hazard, the
Contractor must observe the following precautions and procedures:
a) Sprinklers shall be in service while work is underway.
b) Smoke detectors in the work area should be de-activated by
Landlord's Construction Representative for the duration of
the work. Landlord's Construction Representative will re-
activate smoke detectors when the work is complete.
c) Combustible materials shall be located at least 35 feet
from hot work operations and shall be covered with non-
combustible materials.
d) All flammable liquids and other hazards must be removed.
e) All floor and wall openings must be covered with non-
combustible material.
f) Containers, tanks, ducts, etc. must be cleaned and purged
of flammable vapors, liquids, dusts, etc.
g) A minimum of one multi-purpose 4A - 2OBC rated portable
fire extinguisher must be provided within 10 ft. of the
work area. The extinguisher shall be fully charged and
have been properly serviced within the last year. It is
the responsibility of the Contractor to provide fire
extinguishers. Building extinguishers shall not be used.
h) A fire watch shall be maintained on the floor levels where
the work was conducted for at least one half hour after
welding or burning has ceased. If there is a chance that
slag could enter into a utility or elevator shaft, then the
fire watch should cover the base of the shaft as well as
the intermediate floors.
[Balance of Page Intentionally Left Blank]
WELDING AND BURNING PERMIT
(Work is not permitted unless this card is filled in and posted in
work area.)
DATE (of work) , 20__
BUILDING
TENANT FLOOR
CONTRACTOR
WORK TO BE DONE
SPECIAL PRECAUTIONS
FIRE WATCH REQUIRED ON LEVELS: ____, ____, ____, ____, ____, ___, ___
Permission is granted for this work provided that the necessary precautions
are taken (see back of permit)
PERMIT EXPIRES
SIGNED
PROPERTY MANAGER
TIME STARTED COMPLETED
LOCATION OF NEAREST FIRE PULL STATION
EMERGENCY PHONE NUMBERS: FIRE DEPARTMENT
PROPERTY MANAGER
FINAL CHECK-UP
Work area and all adjacent areas where sparks might have spread were
inspected for at least 30 minutes after the work was completed and no fire
conditions were noted.
CONTRACTOR
PROPERTY MANAGER
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, halls, passages, exits and entrances of the
Building shall not be obstructed by Tenant or used by it for any purpose
other than for ingress to and egress from the Premises. The halls,
passages, exits, entrances, elevators, and stairways are not for the use
of the general public, and Landlord shall in all cases retain the right to
control and prevent access to the Premises of all persons whose presence
in the judgment of Landlord would be prejudicial to the safety, character,
reputation and interests of the Building and its tenants, provided that
nothing herein confined shall be construed to prevent such access to
persons with whom Tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities.
2. The Premises shall not be used for lodging or sleeping, and no
cooking shall be done or permitted by Tenant on the Premises, except that
the use of any microwave oven and the preparation of coffee, tea, hot
chocolate and similar items for Tenant and its employees shall be
permitted.
3. Except as provided in Section 8 of the Lease, Tenant shall not
use or keep in the Premises or the Building any kerosene, gasoline or
flammable or combustible fluid or materials or use any method of heating
or air conditioning other than that supplied by Landlord. Tenant shall
not use, keep or permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors and/or vibrations, or interfere in any
way with other tenants or those having business in the Building.
4. In case of invasion, mob, riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Building during the
continuance of same by such action as Landlord may deem appropriate,
including closing entrances to the Building.
5. Tenant shall see that the doors of the Premises are closed and
securely locked at such time as Tenant's employees leave the Premises.
6. The toilet rooms, toilets, urinals, wash bowls and other
similar apparatus shall not be used for any purpose other than that for
which they were constructed, no foreign substance of any kind whatsoever
shall be deposited therein, and any damage resulting to same from Tenant's
misuse shall be paid for by Tenant.
7. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the Building.
8. No material shall be placed in the Building trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of trash
and garbage in the municipality in which the Building is located without
being in violation of any law or ordinance governing such disposal.
9. Canvassing, soliciting, peddling or distribution of handbills
or any other written maternal in the Building is prohibited, and Tenant
shall cooperate to prevent same.
10. Tenant shall not permit the use or the operation of any
coin-operated machines on the Premises' including, without limitation,
vending machines, video games, pinball machines, or pay telephones,
without the prior written consent of Landlord.
11. Landlord may direct the use of all pest extermination and
scavenger contractors at such intervals as Landlord may require.
12. Landlord reserves the right to select the name of the Building
and the buildings therein and to make such change or changes of name as it
may deem appropriate from time to time, and Tenant shall not refer to the
Building and the buildings therein by any name other than: (i) the names
as selected by Landlord (as same may be changed from time to time), or
(ii) the post office address, approved by the United States Postal
Service. Tenant shall not use the name of the Building in any respect
other than as an address of its operation in the Building without the
prior written consent of Landlord.
13. Except with the prior written consent of Landlord, such consent
not to be unreasonably withheld delayed or conditioned, Tenant shall not
place any sign on the Building or in any window therein.
14. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenant or tenants, but no
such waiver by Landlord shall be construed as a waiver of these Rules and
Regulations in favor of any other tenant or tenants, nor prevent Landlord
from thereafter enforcing any such Rules and Regulations against any or
all of the tenants of the Building.
15. Whenever the word "Tenant" occurs in these Rules and
Regulations, it is understood and agreed that it shall mean Tenant's
associates, agents, clerks, employees and visitors. Wherever the word
"Landlord" occurs in these Rules and Regulations, it is understood and
agreed that it shall mean Landlord's assigns, agents, clerks, employees
and visitors.
16. These Rules and Regulations are in addition to, and shall not
be construed in any way to modify, alter, limit or amend, in whole or
part, the terms, covenants, agreements and conditions of any lease of
premises in the Building.
17. Landlord reserves the right to make such other and reasonable
rules and regulations as in its judgment may from time to time be needed
for the safety, care and cleanliness of the Building, and for the
preservation of good order therein.
[Balance of Page Intentionally Left Blank]
EXHIBIT D
PREVAILING MARKET RATE
DETERMINATION PROCEDURE
If Landlord exercises its option to adjust the Base Rent pursuant to
paragraph "c" in the definition of "Base Rent" set forth in the Basic
Lease Information, the "Prevailing Market Rate" shall be determined as set
forth below.
As used herein, the term "Prevailing Market Rate" for the Premises
shall mean the rental and all other monetary payments and escalations,
including, without limitation, consumer price indexing, that Landlord
could obtain from an arm's length third party desiring to lease the
Premises as of the date at which Base Rent is to be adjusted (the "Base
Rent Adjustment Date") taking into account the age of the Building, the
size of the Premises, the quality of construction of the Building and the
Premises, the services provided under the terms of this Lease, the rental
then being obtained for new leases of space comparable to the Premises in
the locality of the Building, and all other factors that would be relevant
to a third party desiring to lease the Premises as of the Base Rent
Adjustment Date in determining the rental such party would be willing to
pay therefor; provided, however, that no allowance for the construction of
tenant improvements shall be taken into account in determining the
Prevailing Market Rate. No later than one hundred twenty (120) days prior
to the Base Rent Adjustment Date, Landlord shall notify Tenant of
Landlord's determination of the Prevailing Market Rate to be used to
calculate the Base Rent after the Base Rent Adjustment Date. If Tenant
wishes to dispute Landlord's determination Tenant shall give notice to
Landlord, within thirty (30) days after receipt of notice of Landlord's
determination, of Tenant's intent to submit the matter to the appraisal
process described below. If Tenant so elects, then within fifteen (15)
days after the date of Tenant's notice of its election to submit the
matter to the appraisal process, each party, at its sole cost, shall
engage a real estate appraiser to act on its behalf in determining the
Prevailing Market Rate for the Premises as of the Base Rent Adjustment
Date. The appraisers shall have at least five (5) years' commercial
experience in the metropolitan area in which the Building is located, be
designated as an MAI appraiser, and shall be persons who would qualify as
expert witnesses over objection to give opinion testimony on the issue of
the Prevailing Market Rate for the Premises in a court of competent
jurisdiction. If a party does not appoint an appraiser within fifteen
(15) days after the other party has given written notice to the non-
appointing party of the name of its appraiser, the single appraiser
appointed shall be the sole appraiser and shall set the Prevailing Market
Rate for the Premises as of the Base Rent Adjustment Date. If the two
appraisers are appointed by the parties in accordance with this Exhibit D,
such appraisers shall meet promptly and attempt to set the Prevailing
Market Rate for the Premises as of the Base Rent Adjustment Date. If such
appraisers are unable to agree within thirty (30) days after appointment
of the second appraiser, the appraisers shall elect a third appraiser
meeting the qualifications stated in this Exhibit D within ten (10) days
after the last date the two appraisers are given to set the Prevailing
Market Rate for the Premises. If the two appraisers are unable to agree
on the third appraiser, either party may apply to the Superior Court in
the county in which the Building is located, to appoint said third
appraiser. Each of the parties shall bear one-half (1/2) the cost of
appointing the third appraiser and of paying the third appraiser's fee.
The third appraiser shall be a person who has not previously acted in any
capacity for either party. Within thirty (30) days after the selection of
the third appraiser, the Prevailing Market Rate for the Premises as of the
Base Rent Adjustment Date shall be fixed by the three appraisers in
accordance with the following procedures. Each of the appraisers selected
by the parties shall state, in writing, his or her determination of the
Prevailing Market Rate for the Premises as of the Base Rent Adjustment
Date supported by the reasons therefor and shall make counterpart copies
for each of the other appraisers. The appraisers shall arrange for a
simultaneous exchange of such proposed resolutions. The role of the third
appraiser shall be to select which of the two proposed resolutions most
closely approximates his or her determination of Prevailing Market Rate
for the Premises as of the Base Rent Adjustment Date. The third appraiser
shall have no right to propose a middle ground or any modification of
either of the two proposed resolutions. The resolution he chooses as that
most closely approximating his determination of the Prevailing Market Rate
for the Premises as of the Base Rent Adjustment Date shall constitute the
decision of the appraisers and shall be final and binding upon the
parties. If either by agreement of the parties or by appraisal the
Prevailing Market Rate is not finally determined by the Base Rent
Adjustment Date, then Tenant shall continue to pay the monthly Base Rent
in effect for the annual period immediately prior to the Base Rent
Adjustment Date until such time as the Prevailing Market Rate is finally
determined by agreement of the parties or by an appraiser. If the monthly
Prevailing Market Rate as finally determined as of the Base Rent
Adjustment Date exceeds the monthly amount previously paid by Tenant for
said period following the Base Rent Adjustment Date, Tenant shall
forthwith pay the difference to Landlord for each of the months Tenant
paid the lesser amount. Notwithstanding the provisions set forth above in
this Exhibit D, in the event that said provisions result in a Prevailing
Market Rate which is below the amount of Base Rent paid by Tenant during
the year of the Lease Term immediately preceding the Base Rent Adjustment
Date the Prevailing Market Rate shall be the Base Rent paid by Tenant
during said year of the Lease Term immediately preceding the Base Rent
Adjustment Date. Once determined, the Prevailing Market Rate (expressed
on a per square foot basis) shall be deemed to be substituted for the rate
of Base Rent set forth in paragraph "a" of the definition of Base Rent set
forth in the Basic Lease Information section hereof and Tenant shall pay
said revised rate in accordance with the terms of this Lease from and
after the Base Rent Adjustment Date.
[Balance of Page Intentionally Left Blank]
EXHIBIT E
FORM OF SUBLEASE
See next page.
EXHIBIT F
NOTICE OF LEASE
In accordance with the provisions of Massachusetts General Laws,
Chapter 183, Section 4, as amended, notice is hereby given of that certain
lease arrangement by and between Telecom Realty, LLC, a Massachusetts
limited liability company, and CTC Communications Corp., a Massachusetts
corporation (the "Lease"):
PARTIES TO LEASE:
Landlord: Telecom Realty, LLC
c/o Mr. Thomas Fabbricatore
220 Bear Hill Road
Waltham, Massachusetts 02154; and
Tenant: CTC Communications Corp.
Attn: Mr. Thomas Fabbricatore
360 Second Avenue
Waltham, Massachusetts 02154.
DATE OF COMMENCEMENT OF LEASE: May ___, 2000.
DESCRIPTION OF THE DEMISED PREMISES:
Sixty-Nine Thousand Seven Hundred Forty-Four (69,744) rentable square
feet on the first and second floors of the building located at 115-125
Second Avenue, Waltham, Massachusetts, as more completely described in the
Lease.
TERM OF LEASE:
The term of the Lease shall be fifteen (15) years commencing on the
Date of Commencement of Lease (as defined above) and ending on May 31,
2015 (the "Original Term").
The provisions and terms contained in this Notice of Lease do not in
any manner modify or otherwise alter any of the provisions or terms of the
Lease.
WITNESS the execution and delivery hereof as an instrument under seal
as of this ____ day of May, 2000.
LANDLORD:
TELECOM REALTY, LLC, a Massachusetts limited liability company
By: TELECOM MANAGEMENT CORP., a Massachusetts corporation, its manager
By:
Thomas Fabbricatore
Executive Vice-President and Secretary-Treasurer
TENANT:
CTC COMMUNICATIONS CORP., a Massachusetts corporation
By:
Name:
Title:
COMMONWEALTH OF MASSACHUSETTS )
) ss. May __, 2000
COUNTY OF SUFFOLK )
Then personally appeared before me the above-named , as
______________________ of ______________________, managing member of
Telecom Realty, LLC and acknowledged the foregoing instrument to be his
free act and deed, and the free act and deed of said corporation as
aforesaid, before me.
NOTARIAL ______________________
SEAL Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS )
) ss. May __, 2000
COUNTY OF SUFFOLK )
Then personally appeared before me the above-named , as
______________________ of CTC Communications Corp., and acknowledged the
foregoing instrument to be his free act and deed, and the free act and
deed of said corporation as aforesaid, before me.
NOTARIAL ______________________
SEAL Notary Public
My commission expires:
EXHIBIT G
TENANT IMPROVEMENT AGREEMENT
See next page.
EXHIBIT H
DISPOSITION OF SECURITY DEPOSIT AGREEMENT
See next page.
EXHIBIT I
DESCRIPTION OF TENANT'S WORK
See next page.