Massachusetts-Cambridge-201 Broadway Lease [Amendment No. 1] - Broadway Hampshire Associates LP and Akamai Technologies Inc.
FIRST AMENDMENT OF
BROADWAY/HAMPSHIRE ASSOCIATES LEASE
AKAMAI TECHNOLOGIES, INC.
CAMBRIDGE, MASSACHUSETTS
This agreement is the First Amendment of that certain lease dated March 8,
1999 (the "Lease"), by and between BROADWAY HAMPSHIRE ASSOCIATES LIMITED
PARTNERSHIP, a Massachusetts limited partnership, as lessor (the "Lessor"), and
AKAMAI TECHNOLOGIES, INC., a Delaware corporation, as lessee (the "Lessee"),
relating to that certain premises initially comprised of approximately 2,130
square feet of rentable area and further described in the Lease (the "Demised
Premises", sometimes referred to as the "Original Space") and located on the
third floor of the building known as and numbered 201 Broadway, Cambridge,
Massachusetts (the "Building").
WHEREAS, Lessor and Lessee desire to increase the size of the Demised
Premises by approximately 6,386 square feet of rentable area, which represents a
portion of the sixth floor of the Building as shown on the attached Exhibit A-1
(the "Expansion Space"); and
WHEREAS, Lessor and Lessee desire to set forth the effective date for the
addition of the Expansion Space and increase the annual rent and common area
percentage set forth in the Lease accordingly; and
WHEREAS, Lessor and Lessee wish to set forth other agreements with respect
to the Lease.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, Lessor and Lessee hereby agree as
follows:
1. Effective on May 1, 1999 (the "Expansion Space Commencement Date"):
(a) Section 1.01 of the Lease is hereby amended such that the Demised
Premises shall include the Expansion Space (as defined below) by
adding in the second line after "3rd floor" the words "and 6th floor";
by deleting "2,130 square feet" in the fourth line and replacing it
with "8,516 square feet"; and by adding at the end of Section 1.01,
the following, words: "The portion of the Demised Premises located on
the third floor shall from time to time, where the context so permits,
be hereinafter referred to separately as the "Third Floor Space" or
the "Original Space" and the portion of the Demised Premises located
on the sixth floor shall from time to time, where the context so
permits, be hereinafter referred to as the "Sixth Floor Space" or the
"Expansion Space."
(b) The plan attached to this First Amendment as Exhibit A-1 is added
to the Lease after Exhibit A.
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Lessee agrees, upon request of the Lessor, to execute a Lease
Commencement Agreement in the form to be presented by Lessor,
identifying the Expansion Space Commencement Date and the expiration
date(s) of this Lease.
2. Effective immediately, Section 1.02 of the Lease is modified by deleting
the first paragraph and by substituting the following therefor: "The five year
term of this Lease for the Original Space commenced on April 1, 1999 (the
"Commencement Date") and shall expire on March 31, 2004 ("the Original Space
Expiration Date"). The Expansion Space shall be added to the Demised Premises as
of the Expansion Space Commencement Date for a five year term expiring on April
30, 2004 ("the Expansion Space Expiration Date") unless this Lease is sooner
terminated or extended as hereinafter provided (the "Initial Term")."
3. Effective the later of May 1, 1999 or the date on which the Lessor delivers
the Expansion Space vacant and broom clean, the first paragraph of Section 2.01
shall be deleted and replaced with the following:
"Section 2.01. The Lessee covenants and agrees to pay to Lessor
minimum rent (hereinafter called "Base Rent") for said Demised
Premises up to and until the Expansion Space Commencement Date at the
annual rate of Seventy six thousand six hundred eighty and 00/100
($76,680.00) dollars payable in equal monthly installments of Six
thousand three hundred ninety and 00/100 ($6,390.00) dollars.
Effective upon the Expansion Space Commencement Date, the annual base
rent shall be as follows: a) from May 1, 1999 through April 30, 2000
at the annual rate of $293,804.00, payable monthly in advance in equal
monthly installments of $24,483.67; b) from May 1, 2000 through April
30, 2002 at the annual rate of $300,190.00, payable monthly in advance
in equal monthly installments of $25,015.83; c) from May 1, 2002
through March 31, 2004 at the annual rate of $306,576.00, payable
monthly in advance in equal monthly installments of $25,548.00 and d)
from April 1, 2004 through May 31, 2004 at the annual rate of
$229,896.00, payable monthly in advance in equal monthly installments
of $19,158.00. The Base Rent increase as of May 1, 1999 is a result of
the addition of the Expansion Space to the Demised Premises. The Base
Rent decrease as of April 1, 2004 is a result of the end of the Term
for 2,130 square foot Original Space as of March 31, 2004."
4. Effective May 1, 1999, Section 2.02 is modified by replacing all references
to "1.8%" with "7.15% from May 1, 1999 through March 31, 2004, and 5.4% from
April 1, 2004 through April 30, 2004".
5. Section 2.04 is modified by deleting the first sentence thereof and
inserting the following in its place: "Lessor affirms it is currently holding
$12,780.00 and Lessee agrees to provide an additional $37,465.00 upon its
execution of this First Amendment, for a total of $50,245.00, as security for
the payment of all rent and the performance and observance of the agreements and
conditions in this Lease contained on the part of Lessee to be performed and
observed (the "Security Deposit")."
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6. Exhibit B to the Lease is hereby modified by adding the following language
at the end of the Exhibit: "The Expansion Space is leased in its "as
is"condition". Notwithstanding the foregoing, Lessor will deliver the Expansion
Space vacant and broom clean, and demised from the adjacent space."
7. Section 20.10 is hereby modified by (a) deleting the words "during the Term
of this Lease" in the second and third lines and substituting therefor "through
April 30, 1999", and (b) by adding the following new third and fourth sentences:
"Effective May 1, 1999 Lessee shall be entitled to the use of an additional nine
(9) parking spaces for a total of thirteen (13) parking spaces at market rates,
currently $140.00 per space per month, for a total amount equal to $1,820.00 per
month. Effective May 1, 2004, the number of parking spaces shall be reduced to
nine (9) at market rates.
8. Section 20.13 of the Lease is modified by adding at the end thereof the
following language: "Lessee and Lessor acknowledge and confirm to the other that
no brokerage commission is due from the Lessor in connection with this First
Amendment to Lease."
9. Lessor and Lessee confirm to each other that the Original Space has been
delivered in accordance with the terms and provisions of the Lease and accepted
by Lessee as of April 1, 1999.
10. Except as specifically and otherwise provided for in this First Amendment,
wherever the words "Demised Premises" shall appear in the Lease, they shall be
deemed to include the Expansion Space as well as the balance of the Demised
Premises.
Except as modified by this First Amendment, the Lease shall remain
unmodified and in full force and effect.
EXECUTED as a sealed instrument this 29th day of April, 1999.
LESSOR: BROADWAY/HAMPSHIRE
ASSOCIATES LIMITED PARTNERSHIP
By: BROHAM CORP.
Its General Partner
By: _______________________________
Jonathan G. Davis, President
LESSEE: AKAMAI TECHNOLOGIES, INC.
By: /s/ Paul Sagan
-------------------------------
Its: VP & COO
------------------------------
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BROADWAY HAMPSHIRE ASSOCIATES LEASE
AKAMAI TECHNOLOGIES, INC.
CAMBRIDGE, MASSACHUSETTS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Article 1 - Demised Premises - Term of Lease......................................................................2
Article 2 - Rent..................................................................................................3
Article 3 - Utility Services......................................................................................4
Article 4 - Insurance.............................................................................................6
Article 5 - Use of Demised Premises...............................................................................7
Article 6 - Compliance with Legal Requirements....................................................................8
Article 7 - Renovation, Condition, Repairs and Maintenance Demised Premises.......................................9
Article 8 - Alterations and Additions............................................................................10
Article 9 - Discharge of Liens...................................................................................10
Article 10 - Subordination.......................................................................................11
Article 11 - Fire, Casualty and Eminent Domain...................................................................14
Article 12 - Indemnification.....................................................................................14
Article 13 - Mortgages, Assignments and Subleases by Lessee......................................................15
Article 14 - Default.............................................................................................17
Article 15 - Surrender...........................................................................................20
Article 16 - Quiet Enjoyment.....................................................................................20
Article 17 - Acceptance of Surrender.............................................................................20
Article 18 - Notices - Service of Process........................................................................21
Article 19 - Separability of Provisions..........................................................................21
Article 20 - Miscellaneous.......................................................................................21
</TABLE>
<PAGE> 5
BROADWAY HAMPSHIRE ASSOCIATES LEASE
AKAMAI TECHNOLOGIES, INC.
CAMBRIDGE, MASSACHUSETTS
LEASE by and between BROADWAY HAMPSHIRE ASSOCIATES LIMITED PARTNERSHIP, a
Massachusetts limited partnership (hereinafter called "Lessor"), and AKAMAI
TECHNOLOGIES, INC., a Delaware corporation (hereinafter called "Lessee").
ARTICLE 1
DEMISED PREMISES - TERM OF LEASE
Section 1.01. Upon and subject to the conditions and limitations
hereinafter set forth, Lessor does hereby lease and demise unto Lessee a portion
of the 3rd floor of the building ("Building") located at, known as and numbered
201 Broadway, Cambridge, Middlesex County, Massachusetts (the "Premises")
containing approximately 2,130 square feet of rentable area, as shown on the
plan attached hereto and labeled Exhibit "A" (hereinafter referred to as the
"Demised Premises") together with the right to use, in common with others
entitled thereto, driveways, walkways, hallways, stairways and passenger
elevators convenient for access the Demised Premises and lavatories nearest
thereto. Loading docks and areas and freight elevators may be used by Lessee in
common with other lessees entitled to the use thereof subject to the rules and
regulations established from time to time by Lessor.
Section 1.02. The term of this Lease shall commence on the earlier to occur
of April 1, 1999 or that date upon which Lessee takes occupancy of the space
(the "Commencement Date") and the term shall expire five years after the
Commencement Date, unless this Lease is sooner terminated as hereinafter
provided. If the Commencement Date is other than the first day of the month, the
balance of the month during which the Commencement Date occurs (the
"Commencement Month") shall be added to the first year of the term. Lessor and
Lessee agree to execute a document identifying the exact Commencement Date which
shall be recordable if required under any Notice of Lease.
Notwithstanding the foregoing, if Lessee shall take possession of the
Demised Premises prior to the Commencement Date, such possession and occupancy
shall be under all of the terms, covenants, conditions and provisions of this
Lease, including rent. Lessee agrees, upon request of the Lessor, to execute an
estoppel letter in the form to be presented by Lessor, identifying the
Commencement Date and the Expiration Date of this Lease.
THIS LEASE IS MADE UPON THE FOLLOWING COVENANTS, AGREEMENTS, TERMS,
PROVISIONS, CONDITIONS AND LIMITATIONS, ALL OF WHICH LESSEE COVENANTS AND AGREES
TO PERFORM AND COMPLY WITH, EXCEPTING ONLY THE COVENANTS OF THE LESSOR:
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ARTICLE 2
RENT
Section 2.01. The Lessee covenants and agrees to pay to Lessor minimum rent
(hereinafter called "Base Rent") for said Premises of Three hundred eighty three
thousand four hundred and 00/100 ($383,400.00) dollars for the term hereof which
shall accrue at the annual rate of Seventy six thousand six hundred eighty and
00/100 ($76,680.00) dollars payable in equal monthly installments of Six
thousand three hundred ninety and 00/100 ($6,390.00) dollars.
Rent for any partial month shall be prorated and paid on the first of that
month. All monthly payments are due and payable in advance on the first day of
each calendar month, without demand, deduction, counterclaim or setoff. Lessee
agrees to pay to Lessor on the date hereof and Lessor acknowledged that it has
received from Lessee this day rent for the first month of the term of the Lease.
Section 2.02. The Lessee shall pay as additional rent to the Lessor 1.8% of
any increase over: (i) the annual fiscal year 1999 real estate taxes and other
municipal or public assessments (excluding assessments for water and sewer which
shall be paid by Lessee pursuant to Section 3.01 hereof) levied against the land
and building of which the Demised Premises are a part; and/or (ii) the annual
calendar year 1998 operating expenses for the land and building of which the
Demised Premises are a part.
The additional rent computed under this Section 2.02 shall be prorated
should this Lease commence or terminate before: (i) the end of any fiscal tax
year for that portion related to taxes; or (ii) the end of any calendar year for
that portion related to operating expenses. The Lessee shall pay to Lessor such
additional rent within fifteen (15) days after written notice from Lessor to
Lessee that it is due. Upon request of Lessor, Lessee shall make monthly
payments of additional rent on the first of each month equal to one-twelfth
(1/12) of the amount of such additional rent last paid by Lessee or as
reasonably projected by Lessor to be due from Lessee, with a final accounting
and payment for each tax and operating period to be made within thirty (30) days
after written notice from Lessor of the exact amount of such additional rent. In
the event taxes on the Demised Premises, based upon which Lessee shall have paid
additional rent, are subsequently reduced or abated, Lessee shall be entitled to
receive a rebate of 1.8% of the amount abated, provided that the amount of the
rebate allocable to Lessee shall in no event exceed the amount of additional
rent paid by Lessee for such fiscal year on account of real estate taxes under
this Section 2.02, and further provided the rebate allocable to Lessee shall be
reduced by 1.8% of the cost of obtaining such reduction or abatement. Operating
expenses for the purpose of this section shall include all costs incurred by
Lessor in connection with the operation of the building of any name, nature or
kind, excluding expense of renting space in the building, mortgage debt service
and income or corporate excise taxes assessed against the Lessor, and excluding
all capital expenditures except for an annual charge-off for (a) capital items
required to be made by local, state or federal authorities pursuant to law,
regulation or ordinance or (b) expenditures for capital items required to
replace or repair worn out or obsolete items or (c)
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expenditures for items reasonably expected to effect savings in operating
expenses. Such capital expenditures to be included in operating expenses as
described above, which are not properly includible in operating expenses for the
calendar year in which they were made shall nevertheless be included in
operating expenses in each calendar year in which they are made and each year
after such capital expenditure is made in the form of an annual charge-off of
such capital expenditure determined by: (i) dividing the original cost of the
capital expenditure by the number of years of useful life thereof as reasonably
determined by Lessor in accordance with generally accepted accounting principals
and practices then in effect, and (ii) adding to such quotient an interest
factor computed on the unamortized balance of such capital expenditure based
upon an interest rate reasonable determined by Lessor, but in no case less than
12%. If Lessor reasonably concludes on the basis of professional knowledge and
estimates that a particular capital expenditure will effect savings in operating
expenses and that such annual projected savings will exceed the annual
charge-off of capital expenditure computed as aforesaid, then and in such
events, the annual charge-off shall be determined by dividing the amount of such
capital expenditure by the number of years over which the projected amount of
such savings shall fully amortize the cost of such capital item or the amount of
such capital expenditure; and by adding the interest factor, as aforesaid.
Section 2.03. All payments of rent and additional rent shall be made to the
Lessor at c/o The Davis Companies, One Appleton Street, Boston, Massachusetts
02116, or as may be otherwise directed by the Lessor in writing.
Section 2.04. Upon execution of this Lease, Lessee shall deposit with
Lessor the sum of $12,780.00 as security for the payment of all rent and the
performance and observance of the agreements and conditions in this Lease
contained on the part of Lessee to be performed and observed (the "Security
Deposit"). In the event of any default or defaults in such payments, performance
or observance, Lessor may apply said sum or any part thereof, including any
interest then accrued thereon, towards the curing of any such default or
defaults and/or towards compensating Lessor for any loss or damage arising from
any such default or defaults. If Lessor shall apply said sum or any part
thereof, as aforesaid, Lessee shall on demand pay to Lessor the amount so
applied by Lessor, to restore the security deposit to the original amount. Upon
the yielding up of the Demised Premises at the expiration or earlier termination
of this Lease, if Lessee shall not then be in default or otherwise liable to
Lessor, said sum or the then unapplied balance thereof shall be returned to
Lessee. In the event Lessor's interest in the Premises shall be transferred or
assigned and the assigning Lessor shall credit or turn over to such assignee the
sum of money referred to above or the unpaid balance thereof, Lessee agrees to
look only to the assignee of such assignor with respect to the sum referred to
above, its application and return.
ARTICLE 3
UTILITY SERVICES
Section 3.01. Lessee agrees to pay, or cause to be paid, as additional
rent, all charges for Lessee's utilities, including, without limiting the
generality of the foregoing, heat, air
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conditioning, water (if separately metered to the Demised Premises) and
electricity; and Lessee will comply with all contracts relating to any such
services. Lessee's charges for such utility usage shall be based upon Lessee's
actual usage if separately metered, it being agreed that electricity to power
the heat pumps producing heating and air conditioning to the Demised Premises,
and electricity to the Demised Premises will be paid for by the Lessee and, as
applicable, thermostatically controlled by Lessee. However, if such usage is not
separately metered, such usage and billing shall be based upon a percentage of
the total bill for such unmetered utilities based upon a fraction equal to
Lessee's square footage over the total square footage served by such
non-separately metered utilities on a "net rentable" basis. Such additional rent
for non-separately metered utilities may be estimated monthly by Lessor, based
upon prior usage at the building or as projected by the appropriate utility
company, and shall be paid monthly by Lessee as billed with a final accounting
based upon actual bills every six (6) months. In the event Lessee is billed
directly by the utility company for separately metered utilities, then Lessee
shall pay such bills directly to the utility company.
Section 3.02. Lessor agrees to furnish reasonable heat and air conditioning
(HVAC) to the Demised Premises, common hallways and lavatories during normal
business hours on regular business days during the heating or air conditioning
season, as applicable, to light common passageways twenty-four (24) hours a day,
to provide hot water to lavatories, and to furnish reasonable cleaning services,
including vacuuming and emptying ashtrays and wastebaskets throughout the
building and clean common areas, common area glass, common lavatories and glass
main entry doorways to the Demised Premises Mondays through Fridays, in
substantially the same fashion as furnished in similar buildings in the City of
Cambridge all subject to interruption due to accident, to the making of repairs,
alterations or improvements, to labor difficulties, to trouble in obtaining
fuel, electricity, service or supplies from the sources from which they are
usually obtained for such building, governmental restraints, or to any cause
beyond the Lessor's control. In no event shall Lessor be liable for any
interruption or delay in any of the above services for any of such causes. For
the purposes of this clause, reasonable heat to common areas shall be defined as
a minimum of 66 degrees Fahrenheit between the hours of 7:00 a.m. to
6:00 p.m. Monday through Friday and 7:00 a.m. to 1:00 p.m. on Saturday during
the months from November through April. Reasonable cooling of common areas shall
be provided between the hours of 7:00 a.m. and 6:00 p.m. Monday through Friday
and 7:00 a.m. to 1:00 p.m. Saturday during the cooling season. Except as noted
below, the building will be open for access to the Demised Premises daily,
Monday through Friday, between the hours of 7:00 a.m. and 6:00 p.m. and Saturday
between the hours of 7:00 a.m. and 1:00 p.m. The Building will be closed from
6:00 p.m. to 7:00 a.m. Monday through Saturday, inclusive, Saturday from 1:00
p.m. to midnight, all day Sunday and on legal, state and federal holidays, at
which time the building will be locked and secured with access cards provided to
Lessor, Lessee and other tenants, and Lessee shall be entitled to use such
access cards for access to the Demised Premises 24 hours per day, 365 days per
year. Lessor reserves the right, upon 30 days prior notice to Lessee, to charge
Lessee at a reasonable rate, consistent with amounts as may be charged at other
similar first class Cambridge office buildings with similar HVAC systems and
energy sources, for its after hours HVAC usage.
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ARTICLE 4
INSURANCE
Section 4.01. The Lessee shall not permit any use of the Demised Premises
which will make voidable any insurance on the property of which the Demised
Premises are a part, or on the contents of said property, or which shall be
contrary to any requirements or recommendations from time to time established or
made by the Lessor's insurer. The Lessee shall, on demand, reimburse the Lessor,
and all other tenants, in full for all extra insurance premiums caused by the
Lessee's use of the Demised Premises. The use of the Demised Premises for
general office purposes will not make voidable Lessor's insurance or cause an
increase in Lessor's rate.
Section 4.02. The Lessee shall maintain with respect to the Demised
Premises and the property of which the Demised Premises are a part, Commercial
General Liability insurance in the amount of at least $1,000,000.00 combined
single limit, bodily injury and property damage per occurrence; $2,000,000.00
annual aggregate with a deductible of no more than $500.00, with companies
having Best Insurance Guide Rating of A- or better, qualified to do business in
Massachusetts and in good standing therein, insuring the Lessor and its
mortgagees, any ground lessors, as well as the Lessee, against injury to persons
or damage to property. The Lessee shall also maintain property insurance,
including so-called "Improvements and Betterments" coverage, on the Demised
Premises and the contents thereon, including any improvements made by Lessee.
The Lessee shall deposit with the Lessor certificates of such insurance at or
prior to the commencement of the term, and thereafter, at least thirty (30) days
prior to the expiration of any such policies. All such insurance certificates
shall provide that such policy shall not be canceled or modified without at
least thirty (30) days prior written notice to each insured named therein and
that Lessor, its mortgagees, any ground lessors and Managing Agent shall each be
named as an additional insured.
Section 4.03. The Lessor shall maintain at least One Million
($1,000,000.00) Dollars of Commercial General Liability insurance (including
so-called umbrella coverage) covering the land and buildings of which the
Demised Premises are a part. Lessor shall maintain property insurance on the
Premises in the amount of its full replacement value as reasonably determined by
Lessor.
Section 4.04. During all construction by Lessee, if any, Lessee shall
maintain adequate builder's risk, liability and workmen's compensation insurance
to Lessor's reasonable satisfaction, and Lessor, its mortgagees, any ground
lessors and Managing Agent shall each be named as an additional insured on such
policies.
Section 4.05. To the extent obtainable from each party's insurance carrier,
Lessor and Lessee agree that their insurance policies shall contain waiver of
subrogation provisions. Each of Lessor and Lessee, on behalf of itself and its
insurers, hereby waives all rights of subrogation and recovery against the other
with respect to any damage to property to the extent covered by insurance
maintained by the waiving party.
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Section 4.06. Within fifteen (15) days of the date hereof, Lessee shall
provide Lessor with Certificates of all insurance maintained or required to be
maintained by Lessee.
ARTICLE 5
USE OF DEMISED PREMISES
Section 5.01. The Lessee covenants and agrees to use the Demised Premises
only for the purposes of general office use only, and for no other purpose.
Section 5.02. Lessee will not make or permit any occupancy or use of any
part of the Demised Premises for any hazardous, offensive, dangerous, noxious or
unlawful occupation, trade, business or purpose or any occupancy or use thereof
which is contrary to any law, by-law, ordinance, rule, permit or license, and
will not cause, maintain or permit any nuisance in, at or on the Demised
Premises. The Lessee hereby agrees not to maintain or permit noises, odors,
operating methods, or conditions of cleanliness of the Demised Premises or any
appurtenance thereto which are reasonably objectionable to Lessor or other
tenants. No hazardous substances or wastes shall be brought, kept or maintained
on the Demised Premises except in compliance with applicable law. No hazardous
waste shall be discharged on the Premises. Customary office supplies may be
maintained in amounts and in a manner consistent with reasonable commercial
office practices and in compliance with all laws.
Section 5.03.
A. Lessor and Lessee shall indemnify, defend with counsel reasonably
acceptable to Lessor and hold the other, Lessor's managing agent and any
mortgagee or ground lessor of the Premises, fully harmless from and against any
and all liability, loss, suits, claims, actions, causes of action, proceedings,
demands, costs, penalties, damages, fines and expenses, including, without
limitation, reasonable attorneys' fees, consultants' fees, laboratory fees and
clean up costs, and the costs and expenses of investigating and defending any
claims or proceedings, resulting from, or attributable to (i) the presence of
any oils or hazardous substances on the Premises or the Demised Premises arising
from the action or negligence of the party against whom indemnity is sought, its
officers, employees, contractors, agents and invitees, or arising out of the
generation, storage, treatment, handling, transportation, disposal or release by
such party of any oils or hazardous substances at or near the Premises or the
Demised Premises, and (ii) any violation(s) by such party of any applicable law
regarding oils or hazardous substances. This hold harmless and indemnity shall
survive the expiration of the term, but shall not include consequential damage
or damage to or loss of personal property.
B. Lessor represents that, to the best of Lessor's knowledge and belief,
there are no hazardous substances or oils at the Premises exceeding legal limits
and that, to the best of its knowledge and belief, there have been no violations
of applicable laws relating to hazardous substances at the Premises by Lessor.
C. Lessor represents to Lessee that, to the best of its knowledge and
belief, there is no
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friable asbestos in violation of applicable law in the Premises.
Section 5.04. No sign, antenna or other structure or thing, shall be
erected or placed on the Demised Premises or any part of the exterior of any
building or on the land comprising the Premises or erected so as to be visible
from the exterior of the building containing the Demised Premises without first
securing the written consent of the Lessor. Lessee shall not post any paper
signs in or around the Demised Premises visible from the exterior of the
Building or any interior common areas. Lessee shall be given one standard sign
to Lessor's specifications at the entry to Demised Premises and on the directory
in the lobby of the Building.
Section 5.05. Lessee will not permit any abandonment of the Demised
Premises or any part thereof except
(a) to the extent caused by condemnation,
(b) to the extent caused by damage to or alterations of the Demised
Premises pending restoration thereof, or
(c) as herein otherwise specifically provided or consented to in writing
by the Lessor.
The cessation of business operations by Lessee at the Demised Premises
shall not per se be considered abandonment if Lessee timely observes and
performs all of its other obligations under this Lease and properly and with
reasonable continuity monitors and maintains the security of and at the Demised
Premises so as to prevent any vandalism thereat or improper use thereof.
Section 5.06. Lessee will not cause or permit any waste, overloading,
stripping, damage, disfigurement or injury of or to the Premises or the Demised
Premises or any part thereof. Lessor reserves the right to prescribe the weight
and position of all safes, business machines and mechanical equipment. Such
installation shall be placed and maintained by Lessee, at Lessee's expense, in
setting sufficient, in Lessor's judgment, to absorb and prevent vibration, noise
and annoyance.
Section 5.07. Rules and regulations, provided the same are not inconsistent
with or in limitation of the provisions of this Lease, affecting the
cleanliness, safety, occupation and use of the Demised Premises, which in the
judgment of the Lessor are reasonable shall be observed by the Lessee, its
employees, agents, customers and business invitees.
ARTICLE 6
COMPLIANCE WITH LEGAL REQUIREMENTS
Section 6.01. Throughout the term of this Lease, Lessee, at its sole cost
and expense, will promptly comply with all requirements of law related
specifically to Lessee's specific use and occupation of the Demised Premises or
with respect to any modifications or renovation to the Demised Premises proposed
by Lessee and not to the Premises generally, and will procure and maintain all
permits, licenses and other authorizations required with respect to the Demised
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Premises, or any part thereof, for the lawful and proper operation, use and
maintenance of the Demised Premises or any part thereof. Lessee shall in each
and every event and instance, at its sole cost and expense, be responsible for
compliance with all codes and regulations with respect or relating to the
Demised Premises, including, without limitation, those occasioned by work
performed by, for or with consent of Lessor at the Premises. Lessor shall be
responsible for compliance of the Building and Premises with all requirements of
law in all other cases.
Section 6.02. Lessor represents that, to the best of Lessor's knowledge and
belief, there are no violations in the public areas of the Building of the
provisions of the Massachusetts Architectural Barriers Board to the extent those
provisions relate to items under the Lessor's control.
ARTICLE 7
RENOVATION, CONDITION, REPAIRS AND MAINTENANCE DEMISED PREMISES
Section 7.01. Lessor has made no representations, warranties or
undertakings as to the present or future condition of the Premises or the
fitness or availability of the Premises for any particular use, except as
specifically set forth in Exhibit B hereto. Lessor reserves the right to modify
the work contemplated in Exhibit B provided that such modifications do not
unreasonably interfere with Lessee's use of the Demised Premises.
Section 7.02. Lessor agrees to construct the Demised Premises, in a good
and workmanlike manner, substantially in accordance with the provisions of
Exhibit B attached to and made a part of this Lease ("Landlord's Work"). It is
understood and agreed that any changes in Landlord's Work other than substantial
changes, which may be reasonably necessary or, in the opinion of Lessor,
advisable, may be made by Lessor prior to completion of construction of the
Demised Premises and that such changes shall not require the approval of Lessee.
Substantial changes in Landlord's Work which affect the Demised Premises shall
require the approval of Lessee but Lessee agrees that it will not unreasonably
withhold or delay its approval thereof. No such change or changes in Landlord's
work will in any way affect this Lease or the validity thereof. Lessor and
Lessee agree that the opening of the Demised Premises by Lessee for its business
shall constitute an acknowledgment by Lessee that the Demised Premises are in
the condition they are required to be in by this Lease and that Lessor has
satisfactorily performed the construction required of Lessor and Landlord's Work
has been satisfactorily completed, except as may be noted on a written punchlist
prepared by Lessee and Lessor. Lessee shall perform all work required beyond
Lessor's Work to make the Demised Premises completed for Lessee's use.
Section 7.03. Throughout the term of this Lease, the Lessee agrees to
maintain all portions of the Demised Premises not required to be maintained by
Lessor in the same condition as they are in on the Commencement Date or as they
may be put in during the term of this Lease, reasonable wear and tear, damage by
fire or other insured casualty only excepted, and whenever necessary, to replace
bulbs and ballasts in lighting fixtures and to replace plate glass and other
glass therein. Lessee shall maintain all improvements and alterations made by
it.
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Section 7.04. Lessor, or agents or prospective lenders of Lessor, at
reasonable times, shall be permitted to enter upon the Demised Premises to
examine the condition thereof, to make repairs, alterations and additions as
Lessor should elect to do, to show the Demised Premises to others, and at any
time within nine (9) months before the expiration of the term, and for such
purposes, Lessee hereby grants to Lessor and any prospective lessees
accompanying Lessor a right of access to the Demised Premises.
Section 7.05. Lessor shall maintain and repair all common areas and all
structural components of the building and mechanical components of the building
serving more than one tenant, provided the same were not installed by Lessee, at
Lessor's sole cost and expense (subject to reimbursement in accordance with the
provisions of Article 2), provided, however, Lessee shall repair any damage
caused by it or its licensees, invitees, guests, agents or employees.
ARTICLE 8
ALTERATIONS AND ADDITIONS
Section 8.01. The Lessee shall not make any alterations or additions,
structural or non-structural, to the Demised Premises without first obtaining
the written consent of Lessor on each occasion which consent shall not be
unreasonably withheld. Wherever consent is required, it shall include approval
of plans and contractors. All such allowed alterations, including reasonable
costs of review in seeking Lessor's approval, shall be made at Lessee's expense,
in compliance with all laws, and shall be in quality at least equal to the
present construction. Except as set forth below, any alterations or additions
made by the Lessee which are permanently affixed to the Demised Premises or
affixed in a manner so that they cannot be removed without defacing or damaging
the Demised Premises shall, if Lessor so elects, become property of the Lessor
at the termination of occupancy as provided herein. If Lessor elects not to
retain such alterations or additions, upon termination of this Lease, they shall
be removed by Lessee, at its expense, with minimal disturbance to the Demised
Premises. Alterations or additions not affixed and which may be removed with
minimal disturbance or repairable damage may be removed by Lessee provided such
disturbance or damage is restored and repaired so that the Demised Premises are
left in at least as good a condition as they were in at the commencement of the
term, reasonable wear, tear and damage by fire or other casualty not required to
be insured by Lessee or taking or condemnation excepted. All other alterations
and additions made by Lessee and not to be retained by Lessor shall be removed
by Lessee, at its expense, at the end of the term and the Demised Premises shall
be left in the same condition as at the commencement of the term, reasonable
wear, tear and damage by fire, if insured, or other insured casualty or taking
or condemnation by public authority excepted.
ARTICLE 9
DISCHARGE OF LIENS
Section 9.01. Lessee will not create or permit to be created or to remain,
and will promptly discharge, at its sole cost and expense any lien, encumbrance
or charge (on account of
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any mechanic's, laborer's, materialmen's or vendor's lien, or any mortgage, or
otherwise) made or suffered by Lessee which is or might be or become a lien,
encumbrance or charge upon the Demised Premises or any part thereof upon
Lessee's leasehold interest therein, having any priority or preference over or
ranking on a parity with the estate, rights and interest of Lessor in the
Demised Premises or any part thereof, or the rents, issues, income or profits
accruing to Lessor therefrom, and Lessee will not suffer any other matter or
thing within its control whereby the estate, rights and interest of Lessor in
the Demised Premises or any part thereof might be materially impaired.
ARTICLE 10
SUBORDINATION
Section 10.01.
(a) If any holder of a mortgage or holder of a ground lease of property
which includes the Demised Premises and executed and recorded
subsequent to the date of this Lease, shall so elect, the interest of
the Lessee hereunder shall be subordinate to the rights of such
holder, provided that such holder shall agree to recognize in writing
the right of the Lessee to use and occupy the Premises upon the
payment of rent and other charges payable by the Lessee under this
Lease, and the performance by the Lessee of the Lessee's obligations
hereunder (but without any assumption by such holder of the Lessor's
obligations under this Lease); or
(b) If any holder of a mortgage or holder of a ground lease of property
which includes the Demised Premises shall so elect, this Lease, and
the rights of the Lessee hereunder, shall be superior in right to the
rights of such holder, with the same force and effect as if this Lease
had been executed and delivered, and recorded, or a statutory notice
hereof recorded, prior to the execution, delivery and recording of any
such mortgage.
The election of any such holder as to Subsection (a) above shall be
exercised by notice to the Lessee, in the same fashion as notices
under this Lease are given by the Lessor to the Lessee, and, if such
notice is given, such subordination shall be effective with reference
to advances then or thereafter made by such holder under such mortgage
or in connection with such ground lease financing. Any election as to
Subsection (b) above shall become effective upon either notice from
such holder to the Lessee in the same fashion as notices from the
Lessor to the Lessee are to be given hereunder or by the recording in
the appropriate registry or recorder's office of an instrument, in
which such holder subordinates its rights under such mortgage or
ground lease to this Lease.
In the event any holder shall succeed to the interest of Lessor, the
Lessee shall, and does hereby agree to attorn to such holder and to
recognize such holder as its Lessor and Lessee shall promptly execute
and deliver any instrument that such
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holder may reasonably request to evidence such attornment provided
such document contains satisfactory non-disturbance provisions to
allow Lessee to remain in occupancy pursuant to this Lease as long as
Lessee remains current and not in default of its obligations
hereunder. Upon such attornment, the holder shall not be: (i) liable
in any way to the Lessee for any act or omission, neglect or default
on the part of Lessor under this Lease; (ii) responsible for any
monies owing by or on deposit with Lessor to the credit of Lessee
unless received by the holder; (iii) subject to any counterclaim or
setoff which theretofore accrued to Lessee against Lessor; (iv) bound
by any modification of this Lease subsequent to such mortgage or by
any previous prepayment of regularly scheduled monthly installments of
fixed rent for more than (1) month, which was not approved in writing
by the holder; (v) liable to the Lessee beyond the holder's interest
in the Premises and the rents, income, receipts, revenues, issues and
profits issuing from such Property; or (vi) responsible for the
performance of any work to be done by the Lessor under this Lease to
render the Demised Premises ready for occupancy by the Lessee; or
(vii) liable for any portion of a security deposit not actually
received by the holder.
(c) The covenant and agreement contained in this Lease with respect to the
rights, powers and benefits of any such holder constitute a continuing
offer to any person, corporation or other entity, which by accepting
or requiring an assignment of this Lease or by entry of foreclosure
assumes the obligations herein set forth with respect to such holder;
every such holder is hereby constituted a party to this Lease and an
obligee hereunder to the same extent as though its name was written
hereon as such; and such holder shall at its written election be
entitled to enforce such provisions in its own name.
(d) No assignment of this Lease and no agreement to make or accept any
surrender, termination or cancellation of this Lease and no agreement
to modify so as to reduce the rent, change the term, or otherwise
materially change the rights of the Lessor under this Lease, or to
relieve the Lessee of any obligations or liability under this Lease,
shall be valid unless consented to in writing by the Lessor's
mortgagees or ground lessors of record, if any.
(e) The Lessee agrees on request of the Lessor to execute and deliver from
time to time any agreement, in recordable form, which may reasonably
be deemed necessary to implement the provisions of this Section
10.01.
Section 10.02. Lessee agrees to furnish to Lessor, within ten (10) business
days after request therefor from time to time, a written statement setting forth
the following information:
(i) The then remaining term of this Lease;
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(ii) The applicable rent then being paid, including all additional rent
based upon the additional rent most recently established;
(iii) That the Lease is current and not in default or specifying any
default;
(iv) That the Lessee has no current claims for offsets against the Lessor,
or specifically listing any such claims;
(v) The date through which rent has then been paid;
(vi) Such other information relevant to the Lease as Lessor may reasonably
request; and
(vii) A statement that any prospective mortgage lender and/or purchaser may
rely on all such information.
Section 10.03. After receiving notice from any person, firm or other entity
that it holds a mortgage which includes the Demised Premises as part of the
mortgaged premises, or that it is the ground lessor under a lease with the
Lessor, as ground lessee, which includes the Demised Premises as a part of the
mortgaged premises, no notice from the Lessee to the Lessor shall be effective
unless and until a copy of the same is given in the same manner as required for
notice in this Lease to such holder or ground lessor, and the curing of any of
the Lessor's defaults by such holder or ground lessor shall be treated as
performance by the Lessor. Accordingly, no act or failure to act on the part of
the Lessor which would entitle the Lessee under the terms of this Lease, or by
law, to be relieved of the Lessee's obligations hereunder, to exercise any right
of self-help or to terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease unless (i) the
Lessee shall have first given written notice of the Lessor's act or failure to
act on the part of the Lessor which could or would give basis for the Lessee's
rights; and (ii) such holder or ground lessor, after receipt of such notice, has
failed or refused to correct or cure the condition complained of within the cure
period allowed the Lessor or within such reasonable time that provides Mortgagee
time to take possession and to cure the default. As of the execution of this
Lease, CitiCorp USA, Inc. is the current mortgagee of the Premises and notices
to the mortgagee should be sent to CRIIMI MAE Services LP, 11200 Rockville Pike,
Rockville, MD 20852, Re: Portfolio 98MC2, CitiCorp USA Loan.
Section 10.04. With reference to any assignment by the Lessor of the
Lessor's interest in this Lease, or the rents payable hereunder, conditional in
nature or otherwise, which assignment is made to the holder of a mortgage or a
ground lessor on property which includes the Demised Premises, the Lessee
agrees:
(a) That the execution thereof by the Lessor, and the acceptance thereof
by the holder of such mortgage or ground lessor, shall never be
treated as an assumption by such holder or ground lessor of any of the
obligations of the Lessor hereunder,
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unless such holder or ground lessor shall, by notice sent to the
Lessee, specifically make such election; and
(b) That, except as aforesaid, such holder or ground lessor shall be
treated as having assumed the Lessor's obligations hereunder only upon
foreclosure of such holder's mortgage and the taking of possession of
the Premises, or, in the case of a ground lessor, the assumption of
the Lessor's position hereunder by such ground lessor.
ARTICLE 11
FIRE, CASUALTY AND EMINENT DOMAIN
Section 11.01. Should a substantial portion of the Demised Premises or the
property of which they are a part be damaged by fire or other casualty, or be
taken by eminent domain, the Lessor, at its sole option, may elect to terminate
this Lease. When fire or other unavoidable casualty or taking renders the
Demised Premises substantially unsuitable for its intended use, a just and
proportionate abatement of rent shall be made, and the Lessee may elect to
terminate this Lease if:
(a) The Lessor fails to give written notice within sixty (60) days after
such casualty of its intention to restore the Demised Premises or
provide alternate access, if access has been taken or destroyed; or
(b) If Lessor gives notice of its intention to restore and the Lessor
fails to restore the Demised Premises to a condition substantially
suitable for their intended use or fails to provide alternate access
within one hundred twenty (120) days of such fire or other unavoidable
casualty, or taking.
The Lessor reserves, and the Lessee grants to the Lessor, all rights which
the Lessee may have for damages or injury to the Demised Premises for any taking
by eminent domain, except for damages specifically awarded on account of the
Lessee's fixtures, property or equipment, which may be removed at the end of the
term. For purposes of this Section, a taking or damage shall be substantial if
it shall affect more than twenty-five (25%) percent of the Demised Premises or
the property of which they are a part.
ARTICLE 12
INDEMNIFICATION
Section 12.01. Except as provided in Section 12.02, Lessee shall protect,
indemnify and save harmless Lessor, its managing agent and any mortgagee or
ground lessor from and against all liabilities, obligations, damages, penalties,
claims, causes of action, costs, charges and expenses, including all reasonable
attorneys' fees and expenses of employees, which may be imposed upon or incurred
by or asserted against them by reason of any of the following occurring during
the term of this Lease:
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(a) any work or thing done in or on the Demised Premises;
(b) any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Demised Premises or any part thereof,
including, without limiting the generality of the foregoing, the use
or escape of water or the bursting of pipes, or any nuisance made or
suffered on the Demised Premises;
(c) any act or omission (with respect to the Demised Premises, or the use
or management thereof, or this Lease) on the part of Lessee or any of
its agents, contractors, customers, servants, employees, licensees,
invitees, mortgagees, assignees, sub-tenants or occupants;
(d) any accident, injury or damage to any person or property occurring in
or on the Demised Premises.
Section 12.02. Subject in any and all events to the limitations of Section
20.16, Lessor shall protect, indemnify and save harmless Lessee from and against
all liabilities, obligations, damages, penalties, claims, causes of action,
costs, charges and expenses, including all reasonable attorneys' fees and
expenses of employees, which may be imposed upon or incurred by or asserted
against Lessee during the term of this Lease as a result of:
(a) any negligent act or omission or willful misconduct on the part of
Lessor or any of its agents, contractors, customers, servants, or
employees; or
(b) any accident, injury or damage to any person or property occurring in
or on common areas at the Premises open to all tenants, unless caused by an
act or omission described in Section 12.01(c) above.
Section 12.03. In case any action or proceeding is brought against either
party by reason of any such occurrence, the party required to provide
indemnification, upon written notice from the party entitled to indemnification,
will, at the sole cost and expense of the party required to provide
indemnification, resist and defend such action or proceeding or cause the same
to be resisted and defended, by counsel designated by the party required to
provide indemnification and approved in writing by the party to be defended,
which approval shall not be unreasonably withheld.
ARTICLE 13
MORTGAGES, ASSIGNMENTS AND SUBLEASES BY LESSEE
Section 13.01. Lessee's interest in this Lease may not be mortgaged,
encumbered, assigned or otherwise transferred, or made the subject of any
license or other privilege, by Lessee or by operation of law or otherwise, and
the Demised Premises may not be sublet, as a whole or in part, without in each
case the prior written consent of Lessor, which shall not be unreasonably
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withheld or delayed, and the execution and delivery to Lessor by the assignee or
transferee of a good and sufficient instrument whereby such assignee or
transferee assumes all obligations of Lessee under this Lease. In connection
with any request by Lessee for such consent to assignment or sublet, Lessee
shall provide Lessor with all relevant information requested by Lessor
concerning the proposed assignee's or subtenant's financial responsibility,
credit worthiness and business experience to enable Lessor to make an informed
decision. Lessee shall reimburse Lessor promptly for all reasonable
out-of-pocket expenses incurred by Lessor including reasonable attorneys' fees
in connection with the review of Lessee's request for approval of any assignment
or sublease. Upon receipt from Lessee of such request and information, Lessor
shall have the right, but not the obligation, to be exercised in writing within
ten (10) calendar days after its receipt from Lessee of such request and
information, (i) if the request is to assign the Lease through the end of the
then current term, to terminate this Lease, or (ii) if the request is to sublet
a portion of the Demised Premises through the end of the then current term, to
release Lessee from its obligations under this Lease with respect to the portion
of the Demised Premises subject to the proposed sublet for the term of the
proposed sublease or if the request is to sublet all of the Demised Premises
through the end of the then current term to terminate this Lease for the term of
the proposed sublease; in each case as of the date set forth in Lessor's notice
of exercise of such option, which date shall not be less than thirty (30) days
nor more than ninety (90) days following the giving of such notice. In the event
of an assignment or a sublet of the Demised Premises where Lessor exercised its
option to terminate this Lease, Lessee shall surrender possession of the entire
Demised Premises on a date to be mutually agreed upon, but not later than the
termination date, in accordance with the provisions of this Lease relating to
surrender of the Demised Premises at the expiration of the term, and thereafter
neither Lessor nor Lessee shall have any further liability with respect thereto.
In the event of a sublet of the Demised Premises where Lessor does not terminate
this Lease but releases Lessee from its obligations under this Lease with
respect to the portion of the Demised Premises subject to the sublet, Lessee
shall surrender the portion of the Demised Premises subject to the sublease on
the date set forth in such notice in accordance with the provisions of this
Lease relating to surrender of the Demised Premises at the expiration of the
term, and, at Lessee's option, at the end of the term of the sublet the space
subject to the sublet shall be included in the Demised Premises and thereafter
Lessee shall be responsible for all obligations of Lessee hereunder with respect
to such space as a primary obligator, or Lessee shall be released of its
obligations with respect to such space and thereafter shall have no right to
occupy that space. If this Lease shall be canceled as to a portion of the
Demised Premises only, annual Base Rent and Lessee's pro-rata share of Operating
Expenses and Real Estate Taxes shall be readjusted proportionately according to
the ratio that the number of square feet and the portion of the space
surrendered compares to the floor area of Lessee's Demised Premises during the
term of the proposed sublet. Lessee shall not offer to make, or enter into
negotiations with respect to an assignment, sublease or transfer to: (i) any
entity owned by, or under the common control of, whether directly or indirectly,
a tenant in the Premises; or (ii) any party with whom Lessor is then negotiating
with respect to other space in the Premises; or (iii) any party which would be
of such type, character, or condition as to be inappropriate as a tenant for the
building. It shall not be unreasonable for Lessor to disapprove any proposed
assignment, sublet or transfer to any of the foregoing entities. Any purported
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assignment, sublet or transfer under this Article 13 without Lessor's prior
written consent shall be void and of no effect. From and after any such
assignment or transfer, the obligations of each such assignee and transferee and
of the original Lessee named as such in this Lease to fulfill all of the
obligations of Lessee under this Lease shall be joint and several. No acceptance
of rent by Lessor from or recognition in any way of the occupancy of the Demised
Premises by a sublessee or assignee shall be deemed a consent to such sublease
or assignment. In the event Lessee assigns or sublets the Demised Premises or
any part thereof, Lessee shall, after deducting all reasonable out-of-pocket
costs and expenses incurred by Lessee to third parties in connection therewith,
share equally with Lessor in any rents received by Lessee in excess of the rents
and other expenses due to Lessor. Notwithstanding the above, provided Lessee is
not in default of this Lease, Lessee shall have the right to assign this Lease
without Lessor's consent: (a) to any subsidiary, parent, or affiliate controlled
by, controlling, or under common control with Lessee; or (b) in the event of a
sale or transfer of all or substantially all of the assets of Lessee; provided,
however, that in any such event: (i) use of the Demised Premises shall be for
general office purposes only; (ii) in the case of an asset sale the assignee
shall after the transaction in question be at least as creditworthy as the
original Lessee on the date or execution of this Lease and Lessor has been
provided with audited financial statements or equivalent evidence of the same;
and (iii) Lessee's liability hereunder shall continue. In such event, the Lessor
does not have a right to recapture.
Section 13.02. No assignment or transfer of any interest in this Lease, no
sublease of the Demised Premises or any part thereof, and no execution and
delivery of any instrument of assumption pursuant to Section 13.01 hereof shall
in any way affect or reduce any of the obligations of Lessee under this Lease,
but this Lease and all of the obligations of Lessee under this Lease shall
continue in full force and effect as the obligations of a principal (and not as
the obligations of a guarantor or surety). Each violation of any of the
covenants, agreements, terms or conditions of this Lease, whether by act or
omission, by any of Lessee's permitted encumbrances, assignees, employees,
transferees, licensees, grantees of a privilege, sub-tenants or occupancy, shall
constitute a violation thereof by Lessee.
ARTICLE 14
DEFAULT
Section 14.01. In the event that:
(a) the Lessee shall default in the due and punctual payment of any
installment of rent, or any part thereof, when and as the same shall
become due and payable and such default shall continue for more than
five (5) days after written notice that such payment is due, provided
that Lessee shall not be entitled to written notice more than one time
per calendar year.
(b) the Lessee shall default in the payment of any additional rent payable
under this Lease or any part thereof, when and as the same shall
become due and payable,
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and, except for the payment of additional rent for increased real
estate taxes which shall be due and payable without grace period at
least ten (10) days prior to the date specified in a written notice
from Lessor to Lessee, provided that Lessee shall not be entitled to
written notice more than one time per calendar year, and such default
shall continue for a period of ten (10) days; or
(c) the Lessee shall default in the observance or performance of any of
the Lessee's covenants, agreements or obligations hereunder, other
than those referred to in the foregoing clauses (a) and (b), and such
default shall not be corrected within twenty-one (21) days after
written notice; or
(d) the Lessee shall file a voluntary petition in bankruptcy or shall be
adjudicated a bankrupt or insolvent, shall file any petition or answer
seeking any reorganization, arrangement, composition, dissolution or
similar relief under any present or future federal, state or other
statute, law or regulation relating to bankruptcy, insolvency or other
relief for debtors, or shall seek, or consent, or acquiesce in the
appointment of any trustee, receiver or liquidator of Lessee or of all
or any substantial part of its properties, or of the Demised Premises,
or shall make any general assignment for the benefit of creditors; or
(e) any court enters an order, judgment or decree approving a petition
filed against Lessee seeking any reorganization, arrangement,
composition, dissolution or similar relief under any present or future
federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors, and such order,
judgment or decree shall remain unvacated or unstayed for an aggregate
of sixty (60) days; or
(f) the Demised Premises shall be abandoned (unless approved by the
Lessor);
then Lessor shall have the right thereafter to re-enter and take complete
possession of the Demised Premises, to declare this Lease terminated and to
remove the Lessee's effects without prejudice to any remedies which might be
otherwise used for arrears of rent or other default. The Lessee shall indemnify
the Lessor against all loss of rent and other payments which the Lessor may
incur by reason of such termination during the residue of the term.
Section 14.02. If the Lessee shall default in the observance or performance
of any condition or covenant on Lessee's part to be observed or performed under
or by virtue of any of the provisions and/or any Article of this Lease, the
Lessor, after any applicable notice to Lessee and opportunity to cure provided
elsewhere in this Lease, without being under any obligations to do so and
without thereby waiving such default, may remedy such default for the account
and at the expense of the Lessee. If the Lessor makes any expenditures or incurs
any obligations for the payment of money in connection therewith, including but
not limited to reasonable attorneys' fees in instituting, prosecuting or
defending any action or proceeding, such sums paid or
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obligations incurred, with interest at the rate of eighteen (18%) percent per
annum and costs, shall be paid upon demand to the Lessor by the Lessee as
additional rent.
Section 14.03. No failure by Lessor to insist upon strict performance of
any covenant, agreement, term or condition of this Lease, or to exercise any
right or remedy consequent upon breach thereof, and no acceptance of full or
partial rent during the continuance of any breach, shall constitute a waiver of
any such or of any covenant, agreement, term or condition. No covenant,
agreement, term or condition of this Lease to be performed or complied with by
Lessee, and no breach thereof, shall be waived, altered or modified except by
written instrument executed by Lessor. No waiver of any breach shall affect or
alter this Lease, but each and every covenant, agreement, term and condition of
this Lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
Section 14.04. In the event (i) any payment of rent (or additional rent) is
not paid within five (5) business days of the due date, or (ii) a check received
by Lessor from Lessee shall be dishonored, then because actual damages for a
late payment or for a dishonored check are extremely difficult to fix or
ascertain, but recognizing that damage and injury result therefrom, Lessee
agrees to pay as an administrative fee and not as a penalty: (I) the greater of
(a) 5% of the amount due in (i) above or (b) $150.00 as liquidated damages for
each late payment and (II) the greater of 2.5% of the amount due in (ii) or
$45.00 as liquidated damages for each time a check is dishonored. (The grace
period herein provided is strictly related to the fee for a late payment and
shall in no way modify or stay Lessee's obligation to pay rent when it is due,
nor shall the same preclude Lessor from pursuing its remedies under this Section
14, or as otherwise allowed by law.) In the event that two (2) or more Lessee's
checks are dishonored, Lessor shall have the right, in addition to all other
rights under this lease, to demand all future payments by certified check or
money order. Furthermore, if any payment of rent (annual or additional) or any
other payment payable hereunder by Lessee to Lessor shall not be paid within the
applicable grace period, the same shall bear interest, from the date when the
same was due until the date paid, at the rate of eighteen percent (18%) per
annum. Such interest shall constitute additional rent payable hereunder.
Section 14.05. Each right and remedy of Lessor provided for in this Lease
shall be cumulative and concurrent and shall be in addition to every other right
or remedy provided for in this Lease now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by Lessor of any one or more of the rights or remedies provided for in this
Lease now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous exercise by Lessor of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise.
Section 14.06. Whenever, under any provision of this Lease, Lessee shall be
entitled to receive any payment from Lessor or to exercise any privilege or
right under this Lease, Lessor shall not be obligated to make any such payment
and Lessee shall not be entitled to exercise any
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such privilege or right so long as Lessee shall be in default under any of the
provisions of this Lease, and until after such default shall have been cured, if
cured prior to the expiration or termination of this Lease pursuant to the
provisions of Section 14.01 hereof, Lessee shall not be entitled to offset
against rent or any other charges payable under this Lease any payments due from
Lessor to Lessee or any Mortgagee.
ARTICLE 15
SURRENDER
Section 15.01. Lessee shall, upon any expiration or earlier termination of
this Lease, remove all of Lessee's goods and effects from the Demised Premises.
Lessee shall peaceably vacate and surrender to the Lessor the Demised Premises
and deliver all keys, locks thereto, and other fixtures connected thereto,
unless Lessor requests removal of the same, and all alterations and additions
made to or upon the Demised Premises, in the same condition as they were at the
commencement of the term, or as they were put in during the term hereof,
reasonable wear and tear and damage by insured fire or other unavoidable
casualty or taking or condemnation by public authority or as a result of
Lessor's negligence only excepted. In the event of the Lessee's failure to
remove any of Lessee's property from the Demised Premises, Lessor is hereby
authorized, without liability to Lessee for loss or damage thereat, and at the
sole risk of Lessee, to remove and store any of the property at Lessee's
expense, or to retain same under Lessor's control or to sell at public or
private sale, after thirty (30) days notice to Lessee at its address last known
to Lessor, any or all of the property not so removed and to apply the net
proceeds of such sale to the payment of any sum due hereunder, or to destroy
such property.
ARTICLE 16
QUIET ENJOYMENT
Section 16.01. Lessee, subject to any ground leases, deeds of trust and
mortgages to which this Lease is subordinate upon paying the rent and other
charges herein provided for and performing and complying with all covenants,
agreements, terms and conditions of this Lease on its part to be performed or
complied with, shall not be prevented by the Lessor from lawfully and quietly
holding, occupying and enjoying the Demised Premises during the term of this
Lease, except as specifically provided for by the terms hereof.
ARTICLE 17
ACCEPTANCE OF SURRENDER
Section 17.01. No surrender to Lessor of this Lease or of the Demised
Premises or any part thereof or of any interest therein by Lessee shall be valid
or effective unless required by the provisions of this Lease or unless agreed to
and accepted in writing by Lessor. No act on the part of any representative or
agent of Lessor, and no act on the part of Lessor other than such a written
agreement and acceptance by Lessor, shall constitute or be deemed an acceptance
of any such surrender.
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ARTICLE 18
NOTICES - SERVICE OF PROCESS
Section 18.01. All notices, demands, requests and other instruments which
may or are required to be given by either party to the other under this Lease
shall be in writing. All notices, demands, requests and other instruments from
Lessor to Lessee shall be deemed to have been properly given if sent by United
States certified mail, return receipt requested, postage prepaid, or if sent by
prepaid Federal Express or other similar overnight delivery service which
provides a receipt, addressed to Lessee at the Demised Premises, or at such
other address or addresses as the Lessee from time to time may have designated
by written notice to Lessor, or if left on the Demised Premises. All notices,
demands, requests and other instruments from Lessee to Lessor shall be deemed to
have been properly given if sent by United States certified mail, return receipt
requested, postage prepaid or if sent by prepaid Federal Express or other
similar overnight delivery service which provides a receipt, addressed to Lessor
at One Appleton Street, Boston, MA 02116, or at such other address as Lessor
from time to time may have designated by written notice to Lessee. Any notice
shall be deemed to be effective upon receipt by, or attempted delivery to, the
intended recipient.
ARTICLE 19
SEPARABILITY OF PROVISIONS
Section 19.01. If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
contrary to applicable law or unenforceable, the remainder of this Lease, and
the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or contrary to applicable law or
unenforceable, as the case may be, shall not be affected thereby, and each term
and provision of this Lease shall be legally valid and enforced to the fullest
extent permitted by law.
ARTICLE 20
MISCELLANEOUS
Section 20.01. This Lease may not be modified or amended except by written
agreement duly executed by the parties hereto.
Section 20.02. This Lease shall be governed by and construed and enforced
in accordance with the laws of the Commonwealth of Massachusetts.
Section 20.03. This Lease may be executed in several counterparts, each of
which shall be an original but all of which shall constitute but one and the
same instrument.
Section 20.04. The covenants and agreements herein contained shall, subject
to the provisions of this Lease, bind and inure to the benefit of Lessor, his
successors and assigns, and Lessee, and Lessee's permitted successors and
assigns, and no extension, modification or change
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in the terms of this Lease effected with any successor, assignee or transferee
shall cancel or affect the obligations of the original Lessee hereunder unless
agreed to in writing by Lessor. The term "Lessor" as used herein and throughout
the Lease shall mean only the owner or owners at the time in question of
Lessor's interest in this Lease. Upon any transfer of such interest, from and
after the date of such transfer, Lessor herein named (and in case of any
subsequent transfers the then transferor), shall be relieved of all liability
for the performance or observance of any agreements, conditions or obligations
on the part of the Lessor contained in this Lease except for defaults by Lessor
prior to such transfer or monies owed by Lessor to Lessee and which were not
assigned to and repayment thereof assumed by such transferee, provided that if
any monies are in the hands of Lessor or the then transferor at the time of such
transfer, and in which Lessee has an interest, shall be delivered to the
transferee, then Lessee shall look only to such transferee for the return
thereof.
Section 20.05. This instrument contains the entire and only agreement
between the parties, and no oral statements or representations or prior written
matter not contained in this instrument shall have any force or effect.
Section 20.06. In the event this Lease or a copy thereof shall be recorded
by Lessee, then such recording shall constitute a default by Lessee under
Article 14 hereof entitling Lessor to immediately terminate this Lease. Within a
reasonable time after the Commencement Date upon request by Lessee, Lessor and
Lessee shall execute a document in recordable form containing only such
information as is necessary to constitute a Notice of Lease, including the first
sentence of Section 10.01 hereof. All costs of preparation and recording such
notice shall be borne by Lessee.
Section 20.07. The submission of this Lease for review or comment shall not
constitute an agreement between Lessor and Lessee until both have signed and
delivered copies thereof.
Section 20.08. Whenever Lessee is required to obtain Lessor's approval
hereunder, Lessee agrees to reimburse Lessor all out-of-pocket expenses incurred
by Lessor, including reasonable attorney fees in order to review documentation
or otherwise determine whether to give its consent.
Section 20.09. Lessee shall furnish to Lessor on the execution of this
Lease and within one hundred twenty (120) days after each calendar year of each
year during the Term an accurate, up-to-date, audited if available, financial
statement of Lessee showing Lessee's financial condition for the twelve (12)
month period ending the immediately preceding December 31.
Section 20.10. Lessee will be entitled to the use of four (4) parking
spaces at the Premises on a non-exclusive basis for the parking of passenger
motor vehicles during the term of this Lease. Lessee shall pay to Lessor as
additional rent for the right to use such four (4) spaces a total amount equal
to $560.00 per month, which payment shall be made monthly together with Base
Rent. Upon thirty days prior written notice to Lessee, Lessor shall be entitled
to increase
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the monthly parking charge, which is currently based on a charge of $140.00 per
space per month, to reflect the then fair market rate for comparable parking
spaces in Cambridge. Lessee agrees to use these spaces only for its officers,
employees, guests, invitees and clients, in connection with the operation of its
business, in accordance with reasonable rules and regulations adopted from time
to time by Lessor.
Section 20.11. Lessee warrants and represents that it is not a tax-exempt
or foreign entity and that it will not assign, sublet or otherwise permit such
an entity to occupy the Demised Premises.
Section 20.12. Lessor may relocate Lessee to substantially comparable space
in the building of which the Demised Premises are a part (including finish work
comparable to that in the Demised Premises), provided Lessor pays for all of
Lessee's out-of-pocket moving costs incurred in connection with such relocation
to compensate the Lessee for relocating.
Section 20.13. Lessor and Lessee each represent and warrant that they have
not directly or indirectly dealt with any broker with respect to the leasing of
the Demised Premises. Each party agrees to exonerate and save harmless and
indemnify the other against any claims for a commission by any broker, person or
firm with whom such party has dealt in connection with the execution and
delivery of this Lease or out of negotiations between Lessor and Lessee with
respect to the leasing of the space in the Premises.
Section 20.14. The obligations of the Lessee hereunder shall be joint and
several obligations of Lessee and any guarantors or successors. The Lessor may
proceed against any or all of Lessee, any guarantors and any and all of their
heirs, legal representatives, successors and assigns in the event of a default
hereunder.
Section 20.15. Lessee shall conform to all building exterior and interior
signage in accordance with Lessor's standard signage specifications. All signage
must receive Lessor approval prior to installation.
Section 20.16. Limitation of Liability. None of the provisions of this
Lease shall cause Lessor to be liable to Lessee, or anyone claiming through or
on behalf of Lessee, for any special, indirect or consequential damages,
including, without limitation, lost profits or revenues. In no event shall any
individual partner, officer, shareholder, trustee, beneficiary, director,
manager, member or similar party, including, without limitation, Lessor's
managing agent, be liable to Lessee, or anyone claiming by through or under
Lessee for the performance of or by Lessor or Lessee under this Lease or any
amendment, modification or agreement with respect to this Lease. Lessee agrees
to took solely to Lessor's interest in the Premises in connection with the
enforcement of Lessor's obligations in this Lease or for recovery of any
judgment from Lessor, it being agreed that Lessor shall never be personally
liable for any judgment, or incidental or consequential damages sustained by
Lessee from whatever cause.
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Section 20.17. Emergency Action. In the event of an emergency, as
reasonably determined by Lessor or Lessee, as applicable, in order and to the
extent necessary to protect life or property, the party making that
determination, where it is not practical to notify the other party, may take
action and incur out-of-pocket cost to third parties for matters otherwise the
obligation of the other party hereunder and, to the extent the party taking
action incurs expense in so acting, which expense, but for such emergency would
have been the expense of the other, then the party on behalf of whom such action
was taken and expense incurred will, within fourteen (14) days after receipt of
documentation of such expenses, reimburse the party which incurred such expense.
Section 20.18. In the event Lessor shall be delayed or hindered in or
prevented from the performance of any act required under this Lease to be
performed by Lessor by reason of strikes, lockouts, labor troubles, inability to
procure materials, failure of power, restricted governmental law or regulations,
riots, insurrection, war or other reason of a like nature not within the
reasonable control of the Lessor, then 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.
It is intended that this instrument will take effect as a sealed
instrument.
IN WITNESS WHEREOF, the Lessor and Lessee have signed the same as of this
8th day of March, 1999.
LESSOR: BROADWAY/HAMPSHIRE
ASSOCIATES LIMITED PARTNERSHIP
By: BROHAM CORP.
Its General Partner
By: /s/ Jonathan G. Davis
------------------------------
Jonathan G. Davis, President
LESSEE: AKAMAI TECHNOLOGY, INC.
By: /s/ Paul Sagan
------------------------------
Its: VP & COO
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