Massachusetts-Cambridge-725 Concord Avenue Lease - Koll Bren Fund V LP and eRoom Technology Inc.
725 CONCORD AVENUE
CAMBRIDGE, MASSACHUSETTS
THIRD AMENDMENT AND RESTATEMENT OF LEASE
dated as of
June 28, 2000
This Third Amendment and Restatement of Lease is intended to amend and replace
in its entirety those certain Leases by and between Landlord and Tenant for the
Premises, as hereinafter defined, dated as of February 1, 1999, the Amendment
and Restatement of Lease dated as of October 31, 1999 and the Second Amendment
and Restatement of Lease dated as of March 1, 2000.
ARTICLE I
1.1 Reference Data
Each reference in this Lease to any of the following subjects shall be construed
to incorporate the data stated for that subject in this Article:
LANDLORD: Koll Bren Fund V, L.P.
LANDLORD'S ORIGINAL ADDRESS: c/o Koll Bren Fund V, L.P.
125 Summer Street
Boston, M 02110
LANDLORD'S CONSTRUCTION
REPRESENTATIVE: CB Richard Ellis
Whittier Partners
TENANT: eRoom Technology, Inc., f/k/a
Instinctive Technology, Inc.
TENANT'S ORIGINAL ADDRESS: 725 Concord Avenue
Cambridge, MA 02138
TENANT'S CONSTRUCTION
REPRESENTATIVE: N/A
TENANT'S FINAL PLANS DATE: N/A
TERM COMMENCEMENT DATE: April 1, 1999, November 1, 1999 and March 1,
2000 with respect to the Original Premises
and July 1, 2000 with respect to Space A of
the New Premises and September 1, 2000
with respect to
<PAGE> 2
- 2 -
Space B of the New Premises, all as
hereinafter defined.
RENT COMMENCEMENT DATE: May 1, 1999, November 1, 1999 and March 1,
2000 with respect to the Original Premises
and July 1, 2000 with respect to Space A of
the New Premises and September 1, 2000 with
respect to Space B of the New Premises
TENANT'S SPACE: 10,514 Rentable Square Feet on the Sixth
(6th) Floor of the Building (the "Original
Sixth Floor Premises"), 11,304 Rentable
Square Feet on the Fifth (5th) Floor of the
Building (the "Original Fifth Floor
Premises") and 1,585 Rentable Square Feet on
the Second (2nd Floor of the Building (the
"Original Second Floor Premises") (the
Original Sixth Floor Premises, the Original
Fifth Floor Premises and the Original Second
Floor Premises are collectively referred to
as the "Original Premises"), and 10,308
Rentable Square Feet on the Second Floor of
the Building ("the New Space A Premises")
and 5,609 Rentable Square Feet on the First
Floor of the Building ("the New Space B
Premises") (the New Space A and Space B
Premises are collectively referred to as the
"New Premises") all as further described at
Section 2.1 of this Lease and as shown on
Exhibit D attached hereto.
RIGHT OF FIRST OFFER: Landlord shall provide Tenant with an
ongoing Right of First Offer on all
unencumbered space which becomes available
in the Building, as more specifically
described at Section 2.11 of this Lease.
OPTION TO EXPAND PREMISES: In addition to the Right of First Offer,
Tenant shall have three specific options to
expand the Premises as more specifically,
described at Section 2.12 of this Lease.
TERM: Commencing on the respective Term
Commencement Dates set forth above, and
continuing until June 30, 2005 unless sooner
terminated or otherwise extended as provided
herein.
<PAGE> 3
- 3 -
OPTION TO EXTEND: Landlord shall provide Tenant with one (1)
option to extend the Term of this Lease for
five (5) years at a then to be determined
fair market rent as more specifically
described at Section 2.10 of this Lease.
ANNUAL FIXED RENT: As indicated below with additional detail as
set forth in the Rent Schedule attached as
Exhibit F:
MONTHLY RENT
------------
04/01/99 - 10/31/99 $ 22,342.25
11/01/99 - 02/29/00 50,602.25
03/01/00 - 03/31/00 54,961.00
04/01/00 - 06/30/00 55,399.08
07/01/00 - 08/31/00 85,464.08
09/01/00 - 10/31/00 101,823.67
11/01/00 - 03/31/01 102,294.67
04/01/01 - 10/31/01 104,047.00
11/01/01 - 03/31/02 104,518.00
04/01/02 - 10/31/02 107,146.50
11/01/02 - 10/31/03 107,617.50
11/01/03 - 03/31/04 108,088.50
04/01/04 - 10/31/04 108,964.67
11/01/04 - 06/30/05 114,683.33
SECURITY DEPOSIT: $672,486.51, subject to the provisions of
Section 2.13
ANNUAL ELECTRICITY CHARGE: See Section 2.8
TENANT'S TAX BASE: Fiscal Year 2001.
TENANT'S OPERATING EXPENSE
BASE: Calendar Year 2000.
RENTABLE FLOOR AREA OF THE
BUILDING: 84,600 Rentable Square Feet
PERMITTED USES: Office Purposes
PUBLIC LIABILITY INSURANCE: $3,000,000 combined single limit per
occurrence $4,000,000 annual aggregate if
aggregate is location specific, otherwise
$10,000.000 annual aggregate.
<PAGE> 4
- 4 -
1.2 Exhibits. There are incorporated as a part of this Lease:
EXHIBIT A - Description of Lot
EXHIBIT B - Leasehold Improvement Plan Requirements
EXHIBIT C - Landlord's Services
EXHIBIT D - Floor Plan
EXHIBIT E - Required Tenant Work General Conditions
EXHIBIT F - Rent Schedule
1.3 Tables of Articles and Sections
ARTICLE I - Reference Data
1.1 Subjects Referred To
1.2 Exhibits
1.3 Table of Articles and Sections
ARTICLE II - Premises, Term and Rent
2.1 The Premises
2.2 Rights to Use Common Facilities
2.3 Landlord's Reservations
2.4 Commencement of Term
2.5 Monthly Fixed Rent Payments
2.6 Adjustment for Operating Expenses
2.7 Adjustment for Real Estate Taxes
2.8 Electricity Charges
2.9 Due Date of Additional Payments; No Offsets
2.10 Option to Extend Term
2.11 Right of First Offer
2.12 Option to Expand Premises
2.13 Security Deposit
ARTICLE III - Alterations and Construction
3.1 Alterations and Additions by Tenant
3.2 Real Estate Taxes on Leasehold Improvements
3.3 Landlord's Right to Make Alterations
3.4 Alteration Allowance
ARTICLE IV - Landlord's Covenants; Interruptions and Delays
4.1 Services Furnished by Landlord
4.2 Additional Services Available to Tenant
4.3 Additional Air Conditioning Equipment
4.4 Roof, Exterior Wall, Floor Slab and Common Facility Repair
4.5 Monument Sign, Door Signs and Directory
4.6 Quiet Enjoyment
<PAGE> 5
- 5 -
ARTICLE V - Tenant's Covenants
5.1 Payments
5.2 Repair and Yield Up
5.3 Use
5.4 Obstructions, Items Visible from Exterior-, Rules and
Regulations
5.5 Safety Appliances
5.6 Assignment; Sublease
5.7 Indemnity; Insurance
5.8 Personal Property at Tenant's Risk
5.9 Right of Entry
5.10 Floor Load; Prevention of Vibration and Noise
5.11 Personal Property Taxes
5.12 Payment of Litigation Expenses
5.13 Compliance with Insurance Regulations
5.14 Subject to Applicable Law
5.15 Fines and Penalties
ARTICLE VI - Casualty and Taking
6.1 Termination or Restoration; Rent Adjustment
6.2 Eminent Domain Damages Reserved
6.3 Temporary Taking
ARTICLE VII - Default
7.1 Events of Default
7.2 Damages
ARTICLE VIII - Miscellaneous
8.1 Computation of Rentable Floor Areas
8.2 Notice of Lease; Consent of Approval; Notices; Bind and Inure
8.3 Landlord's Failure to Enforce
8.4 Acceptance of Partial Payments of Rent; Delivery of Keys
8.5 Cumulative Remedies
8.6 Partial Invalidity
8.7 Self-Help
8.8 Tenant's Estoppel Certificate
8.9 Waiver of Subrogation
8.10 All Agreements Contained
8.11 Brokerage
8.12 Submission Not an Option
8.13 Applicable Law
8.14 Intentionally Deleted
8.15 Holdover
8.16 Arbitration
8.17 Inability to Perform
8.18 Exculpatory Clause
<PAGE> 6
- 6 -
8.19 Parties Bound - Seisin of Title
8.20 Termination of Circle.com Lease
ARTICLE IX - Rights of Parties Holding Prior Interests
9.1 Lease Subordinate
9.2 Rights of Holder of Mortgage to Notice of Defaults by
Landlords and to Cure Same.
ARTICLE II
PREMISES, TERM AND RENT
2.1 The Premises
Tenant is currently the occupant of approximately 10,514 rentable square feet
located on the sixth (6th) floor of the Building, 11,304 rentable square feet
located on the fifth (5th) floor of the Building and approximately 1,585
rentable square feet located on the second (2nd) floor of the Building
(collectively, the "Original Premises"), pursuant to a lease dated as of
February 1, 1999, an Amendment and Restatement of Lease dated as of October 31,
1999 and a Second Amendment and Restatement of Lease dated as of March 1, 2000
(collectively referred to as the "Existing Lease"). Tenant hereby leases
additional space totaling approximately 10,308 rentable square feet located on
the second (2nd) floor of the Building (the "New Space A Premises") and
approximately 5,609 rentable square feet located on the first (1st) floor of the
Building ("the New Space B Premises") (Space A and Space B of the New Premises
are collectively referred to as the "New Premises") on the terms and conditions
set forth herein. The New Premises will be delivered in broom clean condition
and otherwise in good repair. The Original Premises and the New Premises are
collectively referred to as the "Premises".
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
Premises. The demise of the Premises does not include faces of exterior walls,
the common stairways and stairwells, elevators and elevator shafts, fan rooms,
electric and telephone closets, janitor closets, freight elevator vestibules,
and pipe, ducts, conduits, wires and appurtenant fixtures serving exclusively or
in common other parts of the Building, and common corridors, elevator lobbies
and toilets located on any floor. Tenant's Space with such exclusions is
hereinafter referred to as the "Premises". The term "Building" means the
building in which the Premises are located, and the term "Lot" means all, and
also any part of, the land described in Exhibit A in whole or in part and
subject to minor adjustments of the lot boundaries. "Property" means the
Building and Lot and other improvements on the Lot including, without
limitation, other buildings on the Lot.
2.2 Rights to Use Common Facilities
Tenant shall have, as appurtenant to the Premises, rights to use in common,
subject to reasonable rules of general applicability to tenants of the Building
from time to time made by Landlord of which Tenant is given notice: (a) the
common lobbies, corridors, stairways, elevators and loading platform of the
Building, and the pipes, ducts, conduits, wires and appurtenant meters and
equipment serving the Premises in common with others, (b) common walkways and
driveways
<PAGE> 7
- 7 -
necessary for access to the Building, (c) the common toilets, corridors and
elevator lobbies of any floor in the Building, and (d) the common parking
facilities adjacent to the Building (Tenant hereby acknowledging that (i)
parking is available on a first-come, first-served basis only, (ii) Tenant, its
employees, agents, contractors and invitees shall not be entitled to use at any
time in excess of 2.5 parking spaces per 1,000 square feet of Rentable Square
Feet of the Premises, (iii) Landlord shall have the right upon prior written
notice to Tenant to designate exclusive and/or reserved parking areas, and (iv)
Landlord shall have the right upon at least thirty (30) days prior written
notice to Tenant to institute measures reasonably necessary to enforce the
foregoing); and no other appurtenant rights or easements.
2.3 Landlord's Reservations
Landlord reserves the right from time to time, without unreasonable interference
with Tenant's use and upon prior notice (except in event of emergency in which
event no notice is required): (a) to install, use, maintain, repair, replace and
relocate for service to the Premises and other parts of the Building, or either,
pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the
Premises or Building, and (b) to alter or relocate any other common facility,
provided that substitutions are substantially equivalent or better.
Installations, replacements and reallocations referred to in clause (a) above
shall be located so far as practicable in the central core area of the Building,
above ceiling surfaces, below floor surfaces or within perimeter walls of the
Premises.
2.4 Commencement of Term
Tenant shall have and hold the Premises for a period commencing on the Term
Commencement Date as set forth in Article I ("Term Commencement Date").
If Landlord shall be unable to give possession of the Premises on the Term
Commencement Date because the Premises are not completed and ready for
occupancy, or due to the holding over or retention of possession of any tenant
or occupant, or if repairs, improvements or decorations of the Premises or of
the Building are not completed, or for any other reason, Landlord shall not be
subject to any liability for failure to give possession on said date, nor shall
such failure affect the continuing validity of this Lease.
2.5 Monthly Fixed Rent Payments
Tenant shall pay, without notice or demand, monthly installments of 1/12 of the
Annual Fixed Rent in advance on the first day of each month for each full
calendar month of the Term, commencing the Rent Commencement Dates as set forth
in Article 1, and the corresponding fraction of said amounts for any fraction of
a calendar month at the beginning or end of the Term. Notwithstanding the
provisions hereof, Tenant shall pay the first monthly installment of Annual
Fixed Rent on the execution of this Lease.
Rental and any other sums due hereunder not paid by the tenth day after the date
due shall bear interest for each month or fraction thereof from the due date
until paid computed at the annual rate of two (2) percentage points over the
so-called prime rate as published in The Wall Street Journal, or at any
applicable lesser maximum legally permissible rate for debts of this nature.
<PAGE> 8
- 8 -
In addition, should Tenant fail to pay when due rental and any other sums due
hereunder, Tenant acknowledges that Landlord will incur additional
administrative expenses which are difficult to determine. Therefore, in such
event, Landlord may assess against Tenant, from and after the tenth (10th) day
following the date an which any sum shall be due and payable, a late payment fee
equal to five (5%) of the sum due from Tenant to Landlord.
2.6 Adjustment for Operating Expenses
A. Terms used herein are defined as follows:
(a) "Operating Year" shall mean any 12 month period elected by Landlord for
operating purposes. Landlord's current Operating Year commences on January 1, of
each year. If Landlord should elect to change said Operating Year, Landlord
shall notify Tenant thereof, and all calculations required to be made at the end
of a Operating Year shall be made and proportioned accordingly. Landlord shall
not change Tenant's Operating Base Year without Tenants' prior consent.
(b) "Operating Expenses for the Property" means the cost of operation of the
Property which shall exclude costs of special services rendered to tenants
(including Tenant) for which a separate charge is made, items of expense
referred to in Sections 2.7 and 2.8 hereof, any services paid for directly by a
tenant, and interest and amortization on mortgages on the Property or leasehold
interests therein, if any, but shall include, without limitation, the following:
Premiums for insurance carried with respect to the Property (including insurance
against loss in case of fire or casualty, monthly installments of Annual Fixed
Rent and any additional rent which may be due under this Lease and other leases
of space in the Building and, if there be any first mortgage of the Property,
including such insurance as may be required by the holder of such first
mortgage); compensation and all fringe benefits, Worker's Compensation Insurance
premiums and payroll taxes paid to, for or with respect to all persons engaged
in the operating, repairing, maintaining, or cleaning of the Building or Lot;
steam, water, sewer, gas, oil and telephone charges; electricity provided to the
Building; cost of building and cleaning supplies and equipment; related
equipment, facilities and appurtenances, elevators, cooling and heating
equipment, provided, however, that with respect to the replacement of any
capital items or the making of any capital expenditures (collectively called
"capital expenditures") the total amount of which is not properly includable in
Operating Expenses for the Operating Year in which they were made, there shall
be included in Operating Expenses for each Operating Year in which and after
such capital expenditure is made the annual charge-off of such capital
expenditure. The annual charge-off shall be determined by (i) dividing the
original cost of the capital expenditure by the number of years of useful life
thereof. The useful life shall be reasonably determined by Landlord; and (ii)
adding to such quotient an interest factor computed on the unamortized balance
of such capital expenditure at an annual rate of either one percentage point
over the AA Bond rate (Standard & Poor's corporate composite or, if unavailable,
its equivalent] as reported in the financial press at the time the capital
expenditure is made or, if the capital item is acquired through third-party
financing, then the actual [including fluctuating] rate paid by Landlord in
financing the acquisition of such capital item. Provided, further, that if
Landlord reasonably concludes on the basis of engineering estimates that a
particular capital expenditure will effect savings in Operating Expenses for the
Property, including, without limitation, energy-related
<PAGE> 9
- 9 -
costs, 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; cost of
maintenance, cleaning and repairs, cost of snow removal and care of landscaping;
payments under service contracts with independent contractors or subsidiaries or
affiliates of Landlord; management fees; and all other expenses paid in
connection with the operation, repair, cleaning and maintenance of the Building,
Lot and Property.
(c) If during all or part of any Operating Year, Landlord is providing any
service or furnishing any item to less than 100% of the Rentable Floor Area of
the Property (the cost of which service or item would otherwise constitute a
part of Tenant's Base Operating Expenses for the Property) on account of (a) any
rentable portion of the Property not being occupied or leased, (b) such item not
being required or desired by a tenant, (c) any tenant itself obtaining or
providing such item, or (d) any other reason, whether similar or dissimilar to
the foregoing; then, Base Operating Expenses for the Property shall be deemed to
be increased by an amount equal to the additional costs and expenses which would
reasonably have been incurred during such period by Landlord if it had performed
or furnished such item to 100% of the Property.
(d) "Operating Expenses Allocable to the Premises", as may be adjusted pursuant
to Subparagraph (c) hereof, shall mean the same proportion of the Operating
Expenses for the Property which are allocable to the Building, as hereinafter
defined, as the Rentable Floor Area of Tenant's Space bears to the Rentable
Floor Area of the Building. The Operating Expenses for the Property which are
allocable to the Building shall be (i) those Operating Expenses attributable
solely to the Building, plus (ii) the same proportion of those Operating
Expenses attributable to the portions of the Property other than the buildings
thereon as the Rentable Floor Area of the Building bears to the Rentable Floor
Area of the Property, all as same may be determined and equitably adjusted by
Landlord.
(e) The "Statement" shall mean a statement rendered to Tenant by Landlord within
90 days or as soon thereafter as reasonably possible after the end of each
Operating Year, provided Landlord's failure to render such Statement within such
period shall not limit Tenant's obligations to make any required payments when
the Statement is issued. The Statement shall be in reasonable detail, certified
by Landlord's representative, and show the Operating Expenses for the Property,
the Operating Expenses Allocable to the Premises, amounts already paid by Tenant
for Operating Expenses Allocable to the Premises (including Tenant's Operating
Expense Base hereof and amounts paid pursuant to part C of this Section 2.6),
and the amount of Operating Expenses Allocable to the Premises remaining due
from or overpaid by Tenant for the Operating Year or fraction thereof covered by
the Statement with appropriate prorations for fractional years.
B. If with respect to any Operating Year of the Term, Operating Expenses
Allocable to the Premises exceed Tenant's Operating Expense Base then Tenant
shall pay to Landlord as additional rent the amount of such excess. Such
payments shall be made at the times and in the manner hereinafter provided in
this Section 2.6. Appropriate prorations shall be made for those periods at the
beginning or end of the Term which are less than a full Operating Year.
<PAGE> 10
- 10 -
Within 30 days after the date of delivery of such Statement, Tenant shall pay to
Landlord or Landlord shall pay to Tenant as the case may be, the balance of the
amounts, if any, required to be paid pursuant to the above provisions of this
Section 2.6, except that Landlord may at its option credit any amounts due from
it to Tenant against monthly installments of Annual Fixed Rent next thereafter
coming due.
C. Commencing on the first day of the first month following the delivery to
Tenant of the Statement referred to above and on the first day of each month
thereafter until delivery to Tenant of the next such Statement, Tenant shall pay
to Landlord, on account of Tenant's share of increases in Operating Expenses
Allocable to the Premises anticipated by Landlord for the then current Operating
Year, 1/12th of the difference between Operating Expenses Allocable to the
Premises calculated by Landlord on the basis of the most recent Operating
Expense data or budget available from time to time, and Tenant's Operating
Expense Base.
2.7 Adjustments for Real Estate Taxes Terms used herein are defined as follows:
(a) "Tax Year" means the twelve-month period beginning July 1 each year during
the Term or if the appropriate governmental tax fiscal period shall begin on any
date other than July 1, such other date.
(b) "Tax Expenses Allocable to the Premises" shall mean the same proportion of
the Landlord's Tax Expenses which are allocable to the Building, as hereinafter
defined, as the Rentable Floor Area of Tenant's Space bears to the Rentable
Floor Area of the Building. The Landlord's Tax Expenses which are allocable to
the Building shall be (i) those Tax Expenses attributable solely to the
Building, plus (ii) the same proportion of those Tax Expenses attributable to
the portions of the Property other than the buildings thereon as the Rentable
Floor Area of the Building bears to the Rentable Floor Area of the Property
actually leased on an average annual basis for said Tax Year, all as same may be
determined and equitably adjusted by Landlord.
(c) "Landlord's Tax Expenses" with respect to any Tax Year means the aggregate
Real Estate Taxes on the Property with respect to that Tax Year, reduced by any
abatements actually received with respect to that Tax Year.
(d) "Real Estate Taxes" means all taxes, levies, betterments, and special
assessments of every kind and nature assessed by National, State, Municipal or
by any other governmental authority on the Lot or the Building or the Property
which the Landlord shall become obligated to pay because of or in connection
with the ownership, leasing, operating, use or occupancy of the Lot, the
Building, and the Property or based upon rentals derived therefrom; charges,
fees and assessments for transit, housing, police, fire or other governmental
services or purported benefits to the Building; service or user payments in lieu
of taxes; and reasonable expenses of any proceedings for abatement of taxes. The
amount of special taxes or special assessments to be included shall be limited
to the amount of the installment (plus any interest, other than penalty or late
interest, payable therein) of such special tax or special assessment required to
be paid during the year in respect of which such taxes are being determined.
There shall be excluded from such taxes all income, estate, succession,
inheritance and transfer taxes; provided, however, that if at any time during
the Term the present system of ad valorem tax of real property shall be changed
<PAGE> 11
- 11 -
so that in lieu of or in addition to the whole or any part of the ad valorem tax
on real property, there shall be assessed on Landlord a capital levy or other
tax on the gross rents received with respect to the Lot or Building or Property,
or a federal, state, county, municipal, or other local income, franchise, excise
or similar tax, assessment, levy or charge (distinct from any now in effect in
the jurisdiction in which the Property is located) measured by or based, in
whole or in part, upon any such gross rents, than any and all of such taxes
shall be included within the term "Real Estate Taxes" but only to the extent
that the same would be payable if the Lot, Building or Property were the only
property of Landlord.
If with respect to any Tax Year of the Term, Tax Expenses Allocable to the
Premises exceed Tenant's Tax Base, then Tenant shall pay to Landlord as
additional rent the amount of such excess. Such payments shall be made at the
times and in the manner hereinafter provided in this Section 2.7. Appropriate
prorations shall be made for those periods at the beginning or end of the Term
which are less than a full Tax Year. Within ninety (90) days or as soon
thereafter as reasonably possible after the end of such first Tax Year or
fraction thereof at the beginning of the Term, and of each succeeding Tax Year
during the Term and within ninety (90) days or as soon thereafter as reasonably
possible after lease termination (provided Landlord's failure to render such
statement within such period shall not limit Tenant's obligations to make any
required payments when the statement is issued), Landlord shall render to Tenant
a statement in reasonable detail certified by a representative of Landlord
showing for the preceding Tax Year or fraction thereof, as the case may be,
Landlord's Tax Expenses for the Property, and Tax Expenses Allocable to the
Premises.
Commencing on the first day of the first month following the delivery to Tenant
of the statement referred to above and on the first day of each month thereafter
until delivery to Tenant of the next such statement, Tenant shall pay to
Landlord, on account toward Tenant's share of increases in Tax Expenses
Allocable to the Premises anticipated for the then current Tax Year, 1/12th of
the total amount of Tax Expenses Allocable to the Premises as shown on the most
recent such statement delivered to Tenant. The statements to be rendered to
Tenant referred to above shall also show for the preceding Tax Year amounts of
Real Estate Taxes already paid by Tenant on account for such year and the amount
of Tax Expenses Allocable to the Premises remaining due from or overpaid by
Tenant for the Tax Year or fraction thereof covered by the statement, Within 30
days after the date of delivery of such statement, Tenant shall pay to Landlord
or Landlord shall pay to Tenant as the case may be, the balance of the amounts,
if any, required to be paid pursuant to the above provisions of this Section
2.7, except that Landlord may at its option credit any amounts due from it to
Tenant against monthly installments of Annual Fixed Rent next thereafter coming
due.
To the extent that Real Estate Taxes shall be payable to the taxing authority in
installments for periods less than a Tax Year, the foregoing statement may be
rendered and payments made on account of such installments with respect to such
periods rather than with respect to such full Tax Year.
Landlord agrees to keep accurate books and records with respect to the Operating
and Tax Expenses of the Property. Tenant or a nationally recognized accounting
firm as its representative shall have the right, upon advance written notice and
at its expense, to inspect such records at
<PAGE> 12
- 12 -
Tenants offices during its regular business hours to verify the accuracy of
payments made or required to be made by Tenant hereunder.
2.8 Electricity Charges
Tenant shall promptly and directly pay to any electric company or municipality
providing electricity to the Premises all amounts incurred for use of
electricity consumed at the Premises. Tenant shall also be responsible for
paying any and all deposits and/or connection fees associated with the
foregoing.
2.9 Due Date, Additional Rent; No Offsets
Except as otherwise specifically provided herein, all sums, amounts, items or
charges payable by Tenant to Landlord under this Lease shall be considered as
additional rent, and shall be paid by Tenant to Landlord on the first day of the
month following the date on which Landlord notifies Tenant of the amount payable
or on the tenth day after the giving of such notice, whichever shall be later.
Any such notice shall specify in reasonable detail the basis of such additional
rent. Annual Fixed Rent and additional rent shall be paid by Tenant to Landlord
without offset or deduction.
2.10 Option to Extend Term
Tenant shall have the right and option to extend the Term for one additional
period of five (5) years (referred to herein as the "Extension Term") commencing
upon the expiration of the original Term (the "Original Term"), provided that:
(i) Tenant shall give Landlord notice of Tenant's exercise of such option at
least twelve (12) months prior to the expiration of the Original Term; (ii) no
event of default, after the expiration of applicable notice and grace periods,
exists at the time of giving such notice; and (iii) Tenant has not assigned the
Lease or sublet more than thirty percent (30%) of the Premises. If an event of
default, or condition for which notice has been given and the default remains
uncured, exists at the time of commencement of the Extension Term, Tenant's
exercise of such option shall, at the option of Landlord, be null and void and
of no further force and effect. Prior to the exercise by Tenant of such option,
the expression "Term" shall mean the Original Term. Except as expressly
otherwise provided in the following paragraph, all the terms, covenants,
conditions, provisions and agreements in the Lease contained shall be applicable
to the Extension Term. If Tenant shall give notice of its exercise of said
option to extend in the manner and within the time period provided aforesaid,
the Term shall be extended upon the giving of such notice without the
requirement of any further action on the part of either Landlord or Tenant. If
Tenant shall fail to give timely notice of the exercise of any such option as
aforesaid, Tenant shall have no right to extend the Term of this Lease, time
being of the essence of the foregoing provisions.
The Annual Fixed Rent payable during the Extension Term shall be the amount
being the greater of (i) the Annual Fixed Rent in effect for the Lease year
immediately preceding the commencement of the Extension Term or (ii) the "Fair
Market Rent" for the Premises, as determined below, as of the commencement of
the Extension Term, and in no event shall the
<PAGE> 13
- 13 -
Annual Fixed Rent during the Extension Term be less than the Annual Fixed Rent
in effect for the Lease Year immediately preceding the Extension Term. The
Tenant's Operating Expense Base during the Extension Term shall be Calendar Year
2004 and Fiscal Year 2005 for Tenant's Tax Base. If for any reason the Annual
Fixed Rent payable during the Extension Term has not been determined as of the
commencement of the Extension Term, Tenant shall pay the Annual Fixed Rent
payable during the Lease year immediately preceding commencement of the
Extension Term until the Annual Fixed Rent for the Extension Term is determined,
at which time, an appropriate adjustment, if any, shall be made.
For purposes hereof, the Fair Market Rent shall mean the fair rent for the
Premises as of the commencement of the Extension Term under market conditions
then existing, including in such determination whether then current taxes or
operating costs are included in such fair rent. Landlord will notify Tenant in
writing, of its determination of Fair Market Rent, within thirty (30) days after
receipt of Tenant's notice of exercise of its extension option. Tenant shall
have a period of up to thirty (30) days to either accept or reject Landlord's
determination. Fair Market Rent shall be determined by agreement between
Landlord and Tenant, but if Landlord and Tenant are unable to agree upon the
Fair Market Rent at least ten (10) months prior to the date upon which the Fair
Market Rent is to take effect, then the Fair Market Rent shall be determined by
appraisal made as hereinafter provided by a board of three (3) reputable
independent commercial real estate consultants, appraisers, or brokers, each of
whom shall have at least ten (10) years of experience in the Cambridge office
rental market and each of whom is hereinafter referred to as an "appraiser."
Tenant and Landlord shall each appoint one such appraiser and the two (2)
appraisers so appointed shall appoint the third appraiser. The cost and expenses
of each appraiser appointed separately by Tenant and Landlord shall be borne by
the party who appointed the appraiser. The cost and expenses of the third
appraiser shall be shared equally by Tenant and Landlord. Landlord and Tenant
shall appoint their respective appraisers at least ten (10) months prior to
commencement of the period for which Fair Market Rent is to be determined and
shall designate the appraisers so appointed by notice to the other party. The
two appraisers so appointed and designated shall appoint the third appraiser at
least nine (9) months prior to the commencement of such period and shall
designate such appraiser by notice to Landlord and Tenant. The board of three
(3) independent appraisers shall determine the Fair Market Rent of the space in
question as of the commencement of the period to which the Fair Market Rent
shall apply and shall notify Landlord and Tenant of their determinations at
least eight (8) months prior to the commencement of such period. If the
determinations of the Fair Market Rent of any two (2) or all three (3)
appraisers shall be identical in amount, said amount shall be deemed to be the
Fair Market Rent of the subject space. If the determinations of all three (3)
appraisers shall be different in the amount, the average of two (2) values
nearest in amount shall be deemed the Fair Market Rent. The Fair Market Rent of
the subject space determined in accordance with the provisions of this Section
shall be binding and conclusive on Tenant and Landlord.
2.11 Right Of First Offer
Tenant shall have a right of first offer to lease space in the Building which
becomes available during the term of this Lease and is not otherwise encumbered
by expansion options or other Landlord commitments (the "Option Space") on the
terms and conditions set forth in this Section 2.11. If Option Space becomes
available during the term of the Lease, Landlord shall notify
<PAGE> 14
- 14 -
Tenant thereof in writing ("Landlord's Notice"). Provided that at the time of
Landlord's Notice and Tenant's exercise of its right of first offer (i) no
default by Tenant exists under the Lease as to which notice has been given and
any applicable cure period has expired; and (ii) the Lease has not been assigned
nor any portion of the Premises sublet, Tenant may, by giving notice to Landlord
within ten (10) days after Tenant's receipt of Landlord's Notice, elect to lease
the Option Space at a rent and term established by Landlord in Landlord's
Notice.
Any Option Space with respect to which Tenant exercises its rights will be
delivered by Landlord to Tenant, in broom clean condition but otherwise in its
condition on the date the existing occupant of the Option Space vacates the
Option Space.
Upon the date of occupancy of the Option Space, Annual Fixed Rent and additional
rent shall be increased on account of the Option Space and shall be due and
payable for and with respect to the balance of the term of the Lease. All other
charges payable under the Lease computed on the basis of rentable floor area of
the Premises shall be appropriately adjusted on account of the Option Space.
Upon such occupation of the Option Space, the term "Premises" shall mean the
Premises and the Option Space. Without limitation, if said option is duly
exercised, Landlord and Tenant shall enter into an amendment to the Lease
continuing the inclusion of the Option Space and the adjustment to Annual Fixed
Rent and all other charges payable under the Lease. If Tenant fails to exercise
its option under this Section, and Landlord enters into a lease for the Option
Space with a third party, or if Option Space becomes available during the final
lease year of the Term of this Lease, then, in either event Tenant shall have no
further option to lease the Option Space and all obligations of Landlord under
this Section shall terminate and be of no further force or effect.
2.12 Option to Expand
Tenant shall have three (3) options to expand the Premises on the terms and
conditions set forth in this Section 2.12. Tenant shall provide Landlord with
written notice of its intention to expand at least nine (9) months prior to the
availability dates listed below; provided that, at both the times of Tenant's
notices and the space availability dates (i) no default by Tenant exists under
the Lease and any applicable cure period has expired; and (ii) the Lease has not
been assigned nor any portion of the Premises sublet.
Space I consists of approximately 5,735 rentable square feet located on the
third floor of the Building. Space I will become available January 1, 2002. The
rent for Space I shall be at its then Fair Market Rent determined as set forth
in Section 2.10 of this Lease, which determination shall include an appropriate
Alteration Allowance (if any) taking into account, among other factors, the term
of the Space I lease. Space 2 consists of approximately 3,547 rentable square
feet located on the second (2nd) floor of the Building, Space 2 will be
available on December 1, 2002. The rent for Space 2 shall be at its then Fair
Market Rent determined as set forth in Section 2.10 of this Lease. Space 3
consists of approximately 1,071 rentable square feet located on the second (2nd)
floor of the Building. Space 3 will be available on March 1, 2003. The rent for
Space 3 shall be at its then Fair Market Rent determined as set forth in Section
2.10 of this Lease.
2.13 Security Deposit
<PAGE> 15
- 15 -
(a) Landlord is currently holding a Security Deposit under the Existing Lease
equal to One Hundred Fifteen Thousand Four Hundred Eighty-Seven and 01/100
Dollars ($115,487.01) and Tenant has upon execution of this Third Amendment
delivered to Landlord an additional security deposit of $557,000.00 for a total
deposit to be held by Landlord in the amount of $672,486.51 (collectively the
"Security Deposit"), which shall be held as security for the Tenant's
performance as herein provided and refunded to the Tenant at the end of the
Lease subject to the Tenant's satisfactory compliance with the conditions
hereof. The Landlord shall not be obligated to pay interest on or segregate such
amount from other funds of the Landlord.
(b) Landlord has determined that instead of a cash security deposit, in the full
amount of the Security Deposit, Tenant may, at its option, upon execution and
delivery of this Lease, from time to time, deposit with Landlord clean,
irrevocable, unconditional letters of credit, with a right of assignment
(without charge or cost to Landlord) to any successor to Landlord's interests
hereunder, in favor of Landlord in amounts, at Tenant's option, equal to some or
all of the Security Deposit. Landlord will promptly pay Tenant the amount of the
cash security deposit then held by Landlord and being replaced by such letter or
letters of credit, Such letter of credit, and any replacement thereof, shall be
drawn on a Massachusetts bank approved by landlord from time to time. In the
event of a material adverse change in the financial position of any bank which
has issued a letter of credit hereunder, Landlord reserves the right, on any
scheduled expiration or renewal date of any such letter (or, in the event that
Landlord reasonably determines that the condition of the issuing bank is in
imminent danger of insolvency, upon 10 days' notice), to request that Tenant
change the issuing bank to another bank reasonably approved by Landlord.
Regardless of whether Landlord shall have previously requested that Tenant
change issuing banks, if the bank on which the original letter of credit or any
replacement letter is drawn is declared insolvent or placed into conservatorship
or receivership, Tenant shall, within 20 days thereafter, replace the then
outstanding letter of credit with a letter of credit from another bank
acceptable to Landlord.
(c) The letter of credit shall contain a clause whereby the issuing bank agrees
to automatically extend the term of the letter of credit from year to year
throughout the Initial Term (and any Extended Term) unless, not less than sixty
(60) days prior to the date on which the letter would expire absent such
extension, the issuing bank gives notice to Landlord, by certified or registered
mail, of non-extension. In the event of notice from the issuing bank of
non-extension, Tenant shall, not later than twenty (20) Business Days prior to
the date on which the outstanding letter shall expire without extension, obtain
a replacement letter of credit from a Massachusetts bank acceptable to Landlord,
under all of the terms and conditions set forth above. Upon (i) the occurrence
of a Default of Tenant hereunder, or (ii) the failure of Tenant to replace any
such letter at least twenty (20) Business Days prior to its expiration, and
written certification thereof by Landlord to the issuing bank, Landlord may at
its election draw the full amount or any part thereof, and bold, use and apply
the proceeds thereof as if such proceeds were originally deposited with Landlord
in cash under this Section. In the event that Landlord draws any such letter of
credit, Landlord may elect to use such proceeds (or any excess proceeds after
application) to obtain from another Massachusetts bank a replacement letter of
credit, and the cost of such replacement shall be deducted from the available
balance and reimbursed by Tenant. Tenant hereby agrees, if so requested by
Landlord may do so in Tenant's name and behalf. The order in which Landlord
applies the proceeds of the cash security deposit and the proceeds of the
<PAGE> 16
- 16 -
letter of credit shall be determined by Landlord from time to time in its sole
and unfettered discretion.
(d) From and after the time at which Landlord shall have drawn all or any
portion of the proceeds of such a letter of credit, if Landlord shall not elect
to obtain its own replacement letter of credit, Landlord shall have the right
from time to time without prejudice to any other remedy Landlord may have on
account thereof, to apply such proceeds, or any part thereof, to Landlord's
damages arising from any then existing or subsequently occurring Default of
Tenant hereunder. At the expiration or earlier termination of the Term of this
Lease, Landlord shall return to Tenant the proceeds thereof (or, if not drawn
upon, any letter of credit), or so much thereof as shall not have theretofore
been applied in accordance with the terms of this Section 2.13 (or be reasonably
necessary to cure any failure of Tenant as to which any notice or grace periods
shall not then have expired), provided that as to the partial reductions in the
amount of the security deposit referred to in paragraph (a), such reductions
shall be effected by amendments to the letter of credit reflecting the reduced
requirements. If Landlord conveys Landlord's interest under this Lease, the
proceeds (or, if not drawn upon, any letter of credit), or any part thereof not
previously applied, shall be turned over by Landlord to Landlord's grantee, and,
when actually turned over, Tenant agrees to look solely to such grantee for
proper application of the proceeds in accordance with the terms of this Section
2.13, and the return thereof in accordance herewith. The holder of a mortgage
shall not be responsible to Tenant for the return of any letter of credit or
application of any such proceeds, whether or not it succeeds to the position of
Landlord hereunder, unless such proceeds or letter of credit shall have actually
been received by such holder.
The Landlord may use, apply, or retain the whole or any part of the Security
Deposit to the extent required for the payment of any rent or other payment due
Landlord hereunder or other sum which the Landlord may expend on incur by reason
of the Tenant's default in any of the terms of this Lease, including, but not
limited to, any damages or deficiencies in the reletting of the Premises,
whether such damages or deficiencies accrued before or after summary proceedings
or other re-entry by the Landlord. If all or any part of the Security Deposit is
applied to an obligation of Tenant hereunder, Tenant shall immediately upon
request by Landlord restore the Security Deposit to its original amount. Tenant
shall not have the right to call upon Landlord to apply all or any part of the
Security Deposit to cure any default or fulfill any obligation of Tenant, but
such use shall be solely in the discretion of Landlord. In the event that the
Tenant shall comply with all of the terms of this Lease, the Security Deposit
shall be returned to the Tenant after the expiration of this Lease, In the event
of a sale or lease of the Premises the Landlord shall have the right to transfer
the Security Deposit to the purchaser and the Landlord shall thereupon be
released from all liability for the return of such Security Deposit. The Tenant
shall not assign or encumber the money deposited as the Security Deposit, and
neither the Landlord nor its successors or assigns shall be bound by any such
assignment or encumbrance.
ARTICLE III
ALTERATIONS AND CONSTRUCTION
3.1 Alterations and Additions by Tenant
<PAGE> 17
- 17 -
(a) This Section 3.1 shall apply before and during the Term. Tenant shall not
make alterations and additions to Tenant's Space except in accordance with plans
and specifications and a time schedule therefor first approved by Landlord in
writing. All alterations and additions to Tenant's Space shall equal or exceed
the specifications and quantities provided in Exhibit B. No amendments or
additions to Tenant's approved plans shall be made without the prior written
consent of Landlord. Landlord shall not be deemed unreasonable for withholding
approval of any alterations or additions which (a) involve or might affect any
structural or exterior element of the Building, any area or element outside of
the Premises, or any facility serving any area of the Building outside the
Premises, or (b) will unreasonably delay completion of the Premises or Budding
or (c) will require unusual expense to readapt the Premises to normal office use
on Lease termination or increase the cost of construction or of insurance or
taxes on the Building or of the services called for by Section 4.1 unless Tenant
first gives assurance acceptable to Landlord for payment of such increased cost
and that such readaptation will be made prior to such termination without
expense to Landlord.
(b) All alterations and additions shall be part of the Building unless and until
Landlord shall specify the same for removal pursuant to Section 5.2. Landlord
may elect to require Tenant at the expiration or sooner termination of the term
of this Lease to restore the Premises to substantially the same condition as
existed at the Term Commencement Date. Upon Tenant's written request made prior
to the making of any alterations and additions, Landlord shall notify Tenant in
writing as to whether Tenant shall be required to remove any such alterations or
additions, and to so restore the Premises.
(c) All of Tenant's alterations and additions and installation of furnishings
shall be coordinated with any work being performed by Landlord in such manner as
to not damage the Property or interfere with Building construction or operation
and, except for installation of furnishings, shall be performed by Landlord's
general contractor or by contractors or workmen first approved by Landlord. In
the event that Tenant shall engage its own contractors to perform such work,
Tenant shall pay to Landlord the cost of services provided by Landlord or
Landlord's contractor to Tenant and to Tenant's contractors while performing
such work, which services shall include, but not be limited to, cleaning,
security, rubbish removal, electricity, toilet facilities, and elevators.
Tenant's contract with any such contractors shall include the Required Tenant
Work General Conditions attached hereto as Exhibit F, and Landlord shall have
the right to enforce such General Conditions directly against any of Tenant's
contractors. Tenant shall defend, save harmless, exonerate and indemnify
Landlord from all injury, loss or damage to any person or property occasioned by
or growing out of such work. Tenant agrees that it will not, either directly or
indirectly, use any contractors and/or materials if their use will create any
difficulty, whether in the nature of a labor dispute or otherwise, with other
contractors and/or labor engaged by Tenant or Landlord or others in the
construction, maintenance and/or operation of the Building or any part thereof.
Except for work by Landlord's general contractor, Tenant, before its work is
started, shall: secure all licenses and permits necessary therefor; deliver to
Landlord a statement of the names of all its contractors and subcontractors and
the estimated cost of all labor and material to be furnished by them; and cause
each contractor to carry Workmen's Compensation Insurance in statutory amounts
covering all the contractors and subcontractors employees, Automobile Liability
Insurance and comprehensive public liability insurance and property damage
insurance with such limits as Landlord may reasonably require but in no event
<PAGE> 18
- 18 -
less than, with respect to public liability insurance, $2,000,000.00 and with
respect to property damage insurance, $2,000,000.00 (all insurance to be written
in companies approved by Landlord and insuring Landlord and Tenant as well as
the contractors), and to deliver to Landlord certificates of all such insurance.
No installations or work shall be undertaken or begun by Tenant until Tenant has
made provision for either written waivers of liens from all contractors,
laborers and suppliers of materials for such installations or work the filing of
lien bonds on behalf of such contractors, laborers and suppliers, or other
appropriate protective measures, approved by Landlord and Tenant has procured
appropriate surety payment and performance bonds which shall name Landlord as an
additional obligee on behalf of such contractors, laborers and suppliers.
(d) In no event shall any material or equipment be incorporated in or added to
the Premises, so as to become a fixture or otherwise a part of the Building, in
connection with any such alteration, decoration, installation, addition or
improvement which is subject to any lien charge, mortgage or other encumbrance
of any kind whatsoever or is subject to any security interest or any form of
title retention agreement. Any mechanic's lien filed against the Premises or the
Building for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant shall be discharged by Tenant within ten (10) days
thereafter, at Tenant's expense, by filing the bond required by law or
otherwise. If Tenant fails so to discharge any lien, Landlord may do so at
Tenant's expense and Tenant shall reimburse Landlord for any expense or cost
incurred by Landlord in so doing within fifteen (15) days after, rendition of a
bill therefor.
(e) All installations or work done by Tenant shall be at its own expense and
shall at all times comply with (i) laws, rules, orders and regulations of
governmental authorities having jurisdiction thereof, (ii) orders, rules and
regulations of any Board of Fire Underwriters, or any other body hereafter
constituted exercising similar functions, and governing insurance rating
bureaus; (iii) Rules and Regulations of Landlord; and (iv) plans and
specifications prepared by and at the expense of Tenant theretofore submitted to
and approved by Landlord. All construction work required or permitted by this
Lease shall be done in a good and workmanlike manner. Tenant agrees to pay
promptly when due the entire cost of any work done on the Premises by Tenant,
its agents, employees, or independent contractors.
3.2 Real Estate Taxes on Leasehold Improvements
If under Massachusetts law or regulations, the tax assessor is required to
include leasehold (real property) improvements in determining the assessed value
of the Building, then to the extent that Tenant makes leasehold improvements
(including Tenant's original installation and Tenant's subsequent alterations,
additions, substitutions and improvements) which are in excess of the general
standard of improvements in the remainder of the Building, whether done prior to
or after the commencement of the Term of this Lease and Tenant is notified in
writing of its tax obligation, Tenant shall pay the real estate taxes
attributable to the value of such excess leasehold improvements throughout the
Term of this Lease within thirty (30) days after being billed therefor by
Landlord.
3.3 Landlord's Right to Make Alterations
<PAGE> 19
- 19 -
Landlord reserves the right, exercisable by itself or its nominee, at any time
and from time to time without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor or otherwise
affecting Tenant's obligations under this Lease, to make such changes,
alterations, additions, improvements, repairs or replacements in or to the
Property (including the Building and the Premises), and the fixtures and
equipment thereof, as well as in or to the street entrances, halls, passages,
elevators, escalators, and stairways thereof, as it may deem necessary or
desirable, and to change the arrangement and/or location of entrances or
passageways, doors and doorways, and corridors, elevators, stairs, toilets, or
other public parts of the Building and other buildings on the Property,
provided, however, that there be no unreasonable obstruction of the right to
access to, or unreasonable interference with the use of the Premises by Tenant.
Landlord will -provide Tenant with prior written notice of any changes in the
Premises and such changes will be of a quality and finish at least equal to the
condition of the Premises prior to such change.
Nothing contained in this Section 3.3 shall be deemed to relieve Tenant of any
duty, obligation or liability of Tenant with respect to making any repair,
replacement or improvement or complying with any law, order or requirement of
any governmental or other authority. Landlord reserves the right to adopt at any
time and from time to time to change the name or address of the Building and the
Property. Neither this Lease nor any use by Tenant shall give Tenant any right
or easement for the use of any door or any passage or any concourse connecting
with any other building or to any public convenience, and the use of such doors,
passes and concourses and of such conveniences may be regulated or discontinued
at any time and from time to time by Landlord without notice to Tenant and
without affecting the obligation of Tenant hereunder or incurring any liability
to Tenant therefor, provided, however, that there be no unreasonable obstruction
of the right to access to, or unreasonable interference with the use of the
Premises by Tenant.
Landlord shall not be liable to Tenant for any compensation or reduction of rent
by reason of inconvenience or annoyance or for loss of business arising from the
necessity of Landlord or its agents entering the Premises for any of the
purposes in this Lease authorized, or for repairing the Premises or any portion
of the Property or the Building, however the necessity may occur. Subject to
Section 8.18, in case Landlord is prevented or delayed from making any repairs,
alterations or improvements, or furnishing any services or performing any other
covenant or duty to be performed on Landlord's part, by reason of any cause
reasonably beyond Landlord's control, Landlord shall not be liable to Tenant
therefor, nor except as expressly otherwise provided in Section 6.1 shall Tenant
be entitled to any abatement or reduction of rent by reason thereof, nor shall
the same give rise to a claim in Tenant's favor that such failure constitutes
actual or constructive, total or partial, eviction from the Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed; provided, however, that in each instance of stoppage Landlord
shall exercise reasonable diligence to eliminate the cause thereof. Except in
case of emergency repairs Landlord will give Tenant reasonable advance notice of
any contemplated stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.
<PAGE> 20
- 20 -
In order to prepare the New Premises for Tenants' occupancy, Landlord shall have
the heat pumps serving the first and second floors of the Building inspected and
serviced as necessary to insure that they are in good working order at the July
1, 2000 and September 1, 2000 commencement of the Terms for the New Space A and
Space B Premises, respectively. Landlord shall also paint and install new carpet
in the second floor common area corridors.
3.4 Alteration Allowance
The Landlord has previously provided Tenant with a construction allowance of
$7.25 per rentable square foot of the Original Sixth Floor Premises for a
maximum allowance of $76,226.50 which Tenant has received in full. Landlord has
also provided Tenant with a construction allowance of $8.50 per rentable square
foot of the 1 1,304 S.F. Original Fifth Floor Premises for a maximum allowance
of $96,084.00 which Tenant has billed Landlord for in full. Landlord has also
provided Tenant with a construction allowance of $7.28 per rentable square foot
of the 1,585 sf of the Original Second Floor Premises for a maximum allowance of
$11,538.80 of which Tenant has not yet billed Landlord, but all of which will be
billed to Landlord in the near future.
The Landlord shall provide Tenant with an additional construction allowance of
$10.00 per rentable square foot of the respective portions of the New Premises
for a maximum allowance of One Hundred Fifty-Nine Thousand One Hundred Seventy
and 00/100 Dollars ($159,170.00) to be applied to the leasehold improvement
costs associated with the expansion of the Premises pursuant to this Lease,
including construction, architectural, engineering, space planning, construction
management services, and all other work required to ready the New Premises for
Tenant's occupancy (the "Project"). Construction management will be performed,
and the Architect and General Contractor selected by Tenant for the Project must
be approved, in advance, by the existing property managers, CB/Richard Ellis
Whittier Partners. Tenant will forfeit any portion of the construction allowance
not expended on or before March 1, 2001.
CB/Richard Ellis Whittier Partners will be paid a management fee equal to five
(5%) of the total Project cost for its services in supervising the Project work
as set forth above. This management fee shall be deducted from the construction
allowance. The construction allowance will be disbursed to Tenant upon the
completion of Project work upon Tenants' delivery to Landlord of an
unconditional certificate of occupancy for the Premises, proof of payment of all
contractors, materialmen and suppliers of goods and services to the Project and
executed lien waivers with such parties.
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
Landlord covenants:
4.1 Services Furnished by Landlord
To furnish services, utilities, facilities and supplies ("Landlord's Services")
set forth in Exhibit C, which Landlord's Services Landlord shall have the right
to change, from time to time,
<PAGE> 21
- 21 -
provided that Landlord's Services (i.e., at the time that Landlord changes such
services) shall be equal in quality to those customarily provided by landlords
in comparable buildings in the Cambridge area.
4.2 Additional Services Available to Tenant
To furnish, at Tenant's expense, reasonable additional Building operation
services which are usual and customary in similar office buildings in the
Cambridge area upon reasonable advance request of Tenant at reasonable rates
from time to time established by Landlord.
4.3 Additional Air Conditioning Equipment
In the event Tenant requires additional air conditioning for business machines,
meeting rooms or other special purposes, or because of occupancy or excess
electrical loads, any additional air conditioning units, chillers, condensers,
compressors, ducts, piping and other equipment, such additional air conditioning
equipment will be installed and maintained by Landlord at Tenant's sole cost and
expense, but only if Tenant has obtained Landlord's prior written consent, which
consent shall not be unreasonably withheld and if the same will not cause damage
or injury to the Building or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants; and Tenant shall reimburse Landlord in such amounts as
will compensate Landlord for the cost incurred by Landlord in operating such
additional air conditioning equipment.
4.4 Roof, Exterior Wall, Floor Slab, and Common Facility Repair
Except as otherwise provided in Article VI to make such repairs to the roof,
exterior walls, floor slabs, and common areas and facilities as may be necessary
to keep them in serviceable condition, the expense of which shall be charged in
accordance with Section 2.6 or, to the extent any such repairs are required as a
result of the acts or omissions of Tenant, its employees, agents, contractors or
invitees, shall be payable as additional rent by Tenant to Landlord upon demand.
Landlord agrees to repaint the common hallways and bathrooms on the fifth and
sixth floors and install new carpet for the fifth and sixth floor common
hallways. Landlord shall also complete upgrades to the elevator cabs and paint
and provide new floor covering for the first floor lobby area. All Landlord work
shall be completed on or before June 20, 2000.
4.5 Monument Sign, Door Sign and Directory
To provide and install at Tenant's expense, letters or numerals on doors in the
Premises to identify Tenant's name and Building address; all such letters and
numerals shall be in the building standard graphics and no others shall be used
or permitted on the Premises. In addition, Tenant's name shall be listed by
Landlord, at Tenant's expense, on the Building directory. Tenant shall also have
the right, at its expense, to one (1) double sided sign, on the monument sign on
the lawn in front of the Building. Tenant shall receive the most prominent
position on the sign if Tenant pays for an upgrade to the existing monument, the
design for which must be mutually acceptable to Landlord and Tenant. Tenant may
affix one sign on the exterior of the Building, subject to Landlord's reasonable
approval and the receipt of required zoning approval.
<PAGE> 22
- 22 -
4.6 Quiet Enjoyment
Landlord covenants that if, and so long as, Tenant keeps and performs each and
every covenant, agreement, term, provision and condition herein contained on the
part and on behalf of Tenant to be kept and performed, Tenant shall quietly
enjoy the Premises from and against the claims of all persons claiming by,
through or under Landlord subject, nevertheless, to the covenants, agreements,
terms, provisions and conditions of this Lease and to any instrument to which
this Lease is subject and subordinate.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the Term and such further time as Tenant occupies any
part of the Premises:
5.1 Payments
To pay when due all Annual Fixed Rent and additional rent and all charges for
utility services (including those utility charges payable by Tenant directly to
any utility company) rendered to the Premises (except as otherwise provided in
Exhibit C) and, as further additional rent, all charges for additional services
rendered pursuant to Section 4.2.
5.2 Repair and Yield Up
Except as otherwise provided in Article VI and Section 4.4, to keep the Premises
in good order, repair and condition, reasonable wear and tear only excepted, and
all glass in windows (except glass in exterior walls of the Building unless the
damage thereto is attributable to Tenant's negligence or misuse) and doors of
the Premises whole and in good condition with glass of the same quality as that
injured or broken (with damage by fire being governed by the applicable
provisions of this Lease), and at the expiration or termination of this Lease
peaceably, to yield up the Premises, and all alterations and additions thereto,
in good order, repair and condition, first removing all goods and effects of
Tenant and, to the extent specified by Landlord by notice to Tenant, all
alterations and additions made by Tenant and all partitions, and repairing any
damage caused by such removal and restoring the Premises, and leaving the
Premises clean and neat.
Tenant will remove any personal property from the Building and the Premises upon
or prior to the expiration or termination of this Lease and any such property
which shall remain in the Building or the Premises thereafter shall be
conclusively deemed to have been abandoned, and may either be retained by
Landlord as its property or sold or otherwise disposed of in such manner as
Landlord may see fit. If any part thereof shall be sold, then Landlord may
receive and retain the proceeds of such sale and apply the same, at its option,
against the expenses of the sale, the cost of moving and storage, any arrears of
Annual Fixed Rent , additional or other charges payable hereunder by Tenant to
Landlord and any damages to which Landlord may be entitled under Section 7.2
hereof or pursuant to law.
5.3 Use
<PAGE> 23
- 23 -
Continuously from the commencement of the Term to use and occupy the Premises
for the Permitted Uses, and not to injure or deface the Premises, Building or
Property, nor to permit in the Premises any auction sale, or inflammable fluids
or chemicals, or nuisance, or the emission from the Premises of any
objectionable noise or odor, nor to use or devote the Premises or any part
thereof for any purpose other than the Permitted Uses, nor any use thereof which
is inconsistent with the maintenance of the Building as an office building of
first class quality in maintenance, use and occupancy, or which is improper,
offensive, contrary to law or ordinance or liable to invalidate or increase the
premiums for any insurance on the Building, its contents or the Property, or
liable to render necessary any alteration or addition to the Building of the
Property.
5.4 Obstructions, Items Visible from Exterior; Rules and Regulations
Not to obstruct in any manner any portion of the Building not hereby ]eased or
any portion thereof or of the Property used by Tenant in common with others; not
without prior consent of Landlord to permit the painting or placing of any
signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the like,
visible from outside the Premises; and to comply with all reasonable Rules and
Regulations now or hereafter made by Landlord, of which Tenant has been given
notice, for the care and use of the Building and Property and their facilities
and approaches; Landlord shall not be liable to Tenant for the failure of other
occupants of the Property to conform to such Rules and Regulations.
5.5 Safety Appliances
To keep the Premises equipped with all safety appliances required by law or
ordinance or any other regulation of any public authority because of any use
made by Tenant other than normal office use, and to procure all licenses and
permits so required because of such use and, if requested by Landlord, to do any
work so required because of such use, it being understood that the foregoing
provisions shall not be construed to broaden in any way Tenant's Permitted Uses.
5.6 Assignment; Sublease
Tenant covenants and agrees that neither this Lease nor the term and estate
hereby granted, nor any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred, voluntarily, by operation of law
or otherwise, and that neither the Premises, nor any part thereof will be
encumbered in any manner by reason of any act or omission on the part of Tenant,
or used or occupied, or permitted to be used or occupied, or utilized for desk
space or mailing privileges, by anyone other than Tenant, or for any use or
purposes other than the Permitted Uses stated in Article 1, or offered or
advertised for any of the foregoing. Tenant may sublet the Premises, or a
portion thereof, only upon the express written consent of Landlord, which
consent shall not be unreasonably withheld provided that: (i) any sublessee
shall agree to be independently bound by the terms of this Lease; (ii) Tenant
has performed all of its obligations hereunder in a timely manner (iii) Tenant
shall indemnify and hold Landlord harmless from any brokerage commissions due in
connection with such subletting; (iv) the proposed subtenant is not already a
tenant in the Building (unless the occupancy level of the Building is greater
than eighty-five (85%) percent and Landlord is unable to provide such subtenant
with other space in the Building to meet such Subtenant's requirements); (v) the
<PAGE> 24
- 24 -
proposed terms of the sublet are not more favorable to the sublessee than those
being offered by Landlord for comparable space in the Building unless the
occupancy level of the Building is greater than eighty-five (85%) percent, in
which event Tenant may offer such terms as it chooses in its reasonable business
judgment; and (vi) fifty (50%) percent of the consideration ("Excess
Consideration") received by Tenant from an assignment or sublease that exceeds
the amount Tenant must pay Landlord, which amount is to be prorated where a part
of the Premises is subleased or assigned, shall also be paid to Landlord. The
amount of such Excess Consideration shall exclude reasonable leasing commissions
paid by Tenant and other reasonable out-of-pocket costs paid by Tenant and
directly related to Tenant's obtaining an assignee or sublessee. Tenant shall
pay this Excess Consideration to Landlord at the end of each calendar month
during which Tenant collects any Excess Consideration in the manner that Tenant
pays its Annual Fixed Rent. Notwithstanding the foregoing, it is hereby
expressly understood and agreed, however, if Tenant is a corporation, that the
assignment or transfer of this Lease, and the term and estate hereby granted, to
any corporation into which Tenant is merged or with which Tenant is consolidated
or which purchases all or substantially all of the Tenants' assets or capital
stock which corporation shall have a tangible net worth at least equal to that
of Tenant immediately prior to such merger or consolidation (such corporation
being hereinafter called "Assignee"), shall not be deemed to be prohibited
hereby if, and upon the express condition that, Assignee and Tenant shall
promptly execute, acknowledge and deliver to Landlord an agreement in form and
substance satisfactory to Landlord whereby Assignee shall agree to be
independently bound by and upon all the covenants, agreements, terms, provisions
and conditions set forth in this Lease on the part of Tenant to be performed,
and whereby Assignee shall expressly agree that the provisions of this Section
5.6 shall, notwithstanding such assignment or transfer, continue to be binding
upon Assignee with respect to all future assignments and transfers.
Whether or not such conditions to assignment or subletting are met, Landlord, at
its sole option, may elect, in its sole discretion, to (a) terminate this Lease
if the proposed assignment or sublease is for the remaining term of this Lease
and for the entire Premises, or (b) sublease the Premises or take the assignment
of this Lease on the same terms and conditions as the proposed sublease or
assignment by Tenant. If Landlord elects to terminate this Lease or take an
assignment of this Lease or sublease the Premises, Landlord shall notify Tenant
within thirty (30) days of receipt by Landlord of Tenant's request for consent
to an assignment or sublease; and such termination, assignment or sublease shall
be effective on the date tenant proposed to make such assignment or sublease. If
Landlord elects to terminate this Lease in accordance with the foregoing
sentence, Landlord may lease the Premises to the sublessee or assignee proposed
by Tenant.
If Tenant is an individual who uses and/or occupies the Premises with partners,
or if Tenant is a partnership, then:
(i) Each present and future partner shall be personally bound by and upon all of
the covenants, agreements terms, provisions and conditions set forth in this
Lease on the part of Tenant to be performed; and
(ii) In confirmation of the foregoing, Landlord may (but without being required
to do so) request (and Tenant shall duly comply) that Tenant, at the time that
Tenant admits any new partner to its partnership, shall require each such new
partner to execute an agreement in form
<PAGE> 25
- 25 -
and substance satisfactory to Landlord whereby such new partner shall agree to
be personally bound by and upon all of the covenants, agreements, terms,
provisions and conditions of this Lease on the part of Tenant to be performed,
without regard to the time when such new partner is admitted to partnership or
when any obligations under any such covenants, etc., accrue.
The listing of any name other than that of Tenant, whether on the doors of the
Premises or on the Building directory, or otherwise, shall not operate to vest
in any such other person, firm or corporation any right or interest in this
Lease or in the premises or be deemed to effect or evidence any consent of
Landlord, it being expressly understood that any such listing is a privilege
extended by Landlord revocable at will by written notice to Tenant.
If this Lease be assigned, or if the Premises or any part thereof be sublet or
occupied by anybody other than Tenant, Landlord may, at any time and from time
to time, collect rent and other charges from the assignee, subtenant or
occupant, and apply the net amount collected to the rent and other charges
herein reserved, then due and hereafter becoming due, but no assignment,
subletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, subtenant or occupant as a tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. Any consent by Landlord to a particular
assignment or subletting shall not in any way diminish the prohibition stated in
the first sentence of this Section 5.6 or the continuing liability of the Tenant
named in Article I as the party-Tenant under this Lease.
No assignment or subletting or use of the Premises by an affiliate of Tenant
shall affect the Permitted Uses for which the Premises may be used as stated in
Article 1.
5.7 Indemnity, Insurance
To defend with counsel reasonably approved by Landlord, save harmless, and
indemnify Landlord from any liability for injury, loss, accident or damage to
any person or property, and from any claims, actions, proceedings and reasonable
expenses and costs in connection therewith (including without rotation
reasonable counsel fees), (i) arising from (A) the omission, fault, willful act,
negligence or other misconduct of Tenant, or of Tenant's employees, agents or
contractors, or (B) from any use made or thing done or occurring on the Premises
not due to the omission, fault, willful act, negligence or other misconduct of
Landlord or of Landlord's employees, agents, or contractors, or (C) resulting
from the failure of Tenant to perform and discharge its covenants and
obligations under this Lease; to maintain in responsible companies qualified to
do business, and in good standing, in Massachusetts public liability insurance
covering the Premises insuring Landlord as well as tenant with limits which
shall, at the commencement of the Term, be at least equal to those stated in
Article I and from time to time during the Term if requested by Landlord shall
be for such higher limits, if any, as are customarily carried in the Cambridge
area with respect to similar properties, and Workmen's Compensation Insurance
with statutory limits covering all of Tenant's employees working in the
Premises, and to deposit promptly with Landlord certificates for such insurance,
and all renewals thereof bearing the endorsement that the policies will not be
canceled until after ten (10) days' written notice to Landlord.
<PAGE> 26
- 26 -
5.8 Personal Property at Tenant's Risk
That all of the furnishings, fixtures, equipment, effects and property of every
kind, nature and description of Tenant, and all persons claiming by, through or
under Tenant which, during the continuance of this Lease or any occupancy of the
Premises by Tenant or anyone claiming under Tenant, may be on the Premises or
elsewhere in the Building or on the Lot, shall be at the sole risk and hazard of
Tenant, and if the whole or any part thereof shall be destroyed or damaged by
fire, water or otherwise, or by the leakage or bursting of water pipes, steam
pipes, or other pipes, by theft or from any other cause, no part of said loss or
damage is to be charged to or be borne by Landlord.
5.9 Right of Entry
To permit Landlord and its agents to examine the Premises at reasonable times
and, if Landlord shall so elect, to make any repairs or replacements Landlord
may deem necessary with prior notice to Landlord except in the event of
emergency in which event no notice shall be required; to remove, at Tenant's
expense, any alterations, additions, signs, curtains, blinds, shades, awnings,
aerials, flagpoles, or the like not consented to in writing; and to show the
Premises to prospective Tenants during the eighteen months preceding expiration
of the Term and to prospective purchasers and mortgagees at all reasonable
times.
Without incurring any liability to Tenant, Landlord may permit access to the
Premises and open the same, whether or not Tenant shall be present, upon any
demand of any receiver, trustee, assignee for the benefit of creditors, sheriff,
marshal or court officer entitled to, or reasonably purporting to be entitled
to, such access for the purposes of taking possession of, or removing, Tenant's
property or for any other lawful purposes (but this provision and any action by
Landlord hereunder shall not be deemed a recognition by Landlord that the person
or official making such demand has any right or interest in or to this Lease, or
in or to the Premises), or upon demand of any representative of the fire,
police, building, sanitation or other department of the city, state or federal
governments.
5.10 Floor Load; Prevention of Vibration and Noise
Not to place a load upon the Premises exceeding an average rate of 90 pounds of
live load per-square foot of floor area (partitions shall be considered as part
of the live load); Landlord reserves the right to prescribe the weight and
position of all safes, files and heavy equipment which Tenant desires to place
in the Premises so as properly to distribute the weight thereof, Tenant's
business machines and mechanical equipment which cause vibration or noise that
may be transmitted to the Building structure or to any other space in the
Building shall be so installed, maintained And used by Tenant as to eliminate
such vibration or noise.
5.11 Personal Property Taxes
To pay promptly when due all taxes which may be imposed upon personal property
(including without limitation, fixtures and equipment) in the Premises to
whomever assessed.
5.12 Payment of Litigation Expenses
<PAGE> 27
- 27 -
As additional rent, to pay all reasonable costs, counsel and other fees incurred
by Landlord in connection with the enforcement by Landlord of any obligations of
Tenant under this Lease.
5.13 Compliance with Insurance Regulations
Not to knowingly do or permit to be done any act or thing upon the Premises
which will invalidate or be in conflict with the terms of the Massachusetts
standard form of fire, boiler, sprinkler, water damage or other insurance
policies covering the Building and the fixtures and property therein; Tenant
shall, at its own expense, comply in a timely manner with all rules,
regulations, and requirements of the National Board of Fire Underwriters or any
state or other similar body having jurisdiction (to the extent notice of which
has been provided to Tenant) and shall not knowingly do or permit anything to be
done in or upon the Premises in a manner which increases the rate of fire
insurance upon the Building, the Property or on any property or equipment
located therein.
5.14 Subject to Applicable Law
Notwithstanding any provision of this Lease to the contrary, Landlord shall in
no event be indemnified or held harmless or exonerated from any liability to
Tenant or to any person, for any injury, loss, damage or liability to the extent
such indemnity, hold harmless or exoneration is prohibited by law, provided
Tenant agrees that, prior to making any claims against Landlord (and, to the
extent Tenant is successful, in place of any such claim), Tenant shall pursue
all other available remedies including, without limitation, seeking recovery
under Tenant's insurance policies.
5.15 Requirements of Law - Fines and Penalties
Tenant, at its sole expense, shall comply with all laws, rules, orders and
regulations, including, without limitation, all energy-related requirements, of
Federal, State, County and Municipal Authorities and with any direction of any
public officer or officers, pursuant to law, which shall impose any duty upon
Landlord or Tenant with respect to or arising out of Tenant's use or occupancy
of the Premises. Tenant shall reimburse and compensate Landlord for all
expenditures made by, or damages or fines sustained or incurred by, Landlord due
to nonperformance or noncompliance with or breach or failure to observe any
item, covenant, or condition of this Lease upon Tenant's part to be kept,
observed, performed or complied with. If Tenant receives notice of any violation
of law, ordinance, order or regulation applicable to the Premises, it shall give
prompt notice thereof to Landlord.
ARTICLE VI
CASUALTY AND TAKING
6.1 Termination or Restoration; Rent Adjustment
In case during the Term all or any part of the Premises or the Building or the
Property are damaged materially by fire or other casualty or by action of public
or other authority in consequence thereof, or are taken by eminent domain or
Landlord receives compensable damage
<PAGE> 28
- 28 -
by reason of anything lawfully done in pursuance of public or other authority,
this Lease shall terminate at Landlord's election, which may be made
notwithstanding Landlord's entire interest may have been divested, by notice
given to Tenant within three (3) months after the casualty or taking specifying
the effective date of termination. The effective date of termination specified
by Landlord shall not be less than 15 nor more than 30 days after the date of
notice of such termination, Unless terminated pursuant to the foregoing
provisions, this Lease shall remain in full force and effect following any such
damage or taking, subject, however, to the following provisions. If in any such
case the Premises are rendered unfit for use and occupation and this Lease is
not so terminated, Landlord shall use due diligence (following the expiration of
the period in which Landlord may terminate this Lease pursuant to the foregoing
provisions of this Section 6.1), subject to the then applicable statutes,
building codes, zoning ordinances, and regulations of any governmental authority
and at the expense of Landlord (but only to the extent of insurance proceeds
made available to Landlord) to put the Premises, or in case of taking what may
remain thereof (excluding in case of both casualty and taking any items
installed or paid for by Tenant which Tenant may be required to remove pursuant
to Section 5.2), into proper condition (i.e., substantially similar to its
condition prior to such casualty or taking) for use and occupation and a just
proportion of the Annual Fixed Rent and additional rent according to the nature
and extent of the injury shall be abated from the date of such casualty or
taking until the Premises or such remainder shall have been put by Landlord in
such condition; and in case of taking which permanently reduces the area of the
Premises and which materially negatively affects Tenants' operations at the
Premises, a just proportion of the Annual Fixed Rent and additional rent shall
be abated for the remainder of the Tenancy. Tenant shall have the right to
terminate the Lease if Landlord has failed to restore the Premises, or in the
case of a taking what may remain thereof to proper condition for Tenants' use
and occupation within six (6) months of its notice to Tenant of its election to
do so.
6.2 Eminent Domain
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises, Building and Property, and the leasehold hereby
created, or any one or more of them, accruing by reason of exercise of eminent
domain or by reason of anything lawfully done in pursuance of public or other
authority. Tenant hereby releases and assigns to Landlord all Tenant's rights to
such awards, and covenants to deliver such further assignments and assurances
thereof as Landlord may from to time request. Tenant hereby irrevocably
designates and appoints Landlord as its attorney-in-fact to execute and deliver
in Tenant's name and behalf all such further assignments thereof.
Notwithstanding the foregoing to the contrary, Tenant shall have the right to
retain any separate award for the Tenant's relocation expenses which does not
reduce Landlord's award.
6.3 Temporary Taking
In the event of a taking of the Premises or any part thereof for temporary use
(less than 365 days), (i) this Lease shall be and remain unaffected thereby and
rent shall not abate, and (ii) Tenant shall be entitled to receive for itself
such portion or portions of any award made for such use with respect to the
period of the taking which is within the Term, provided that if such taking
shall remain in force at the expiration or earlier termination of this Lease,
Tenant shall then pay
<PAGE> 29
- 29 -
to Landlord a sum equal to the reasonable cost of performing Tenant's
obligations under Section 5.2 with respect to surrender of the Premises and upon
such payment shall be excused from such obligations.
ARTICLE VII
DEFAULT
7.1 Events of Default
If (a) Tenant shall neglect or fail to perform or observe any of Tenant's
covenants or agreements herein, including the obligation to pay, when due,
Annual Fixed Rent or additional rent, and such failure continues, in the case of
Annual Fixed Rent or additional rent, for more than ten (10) days after written
notice of such default, or in any other case, for more than thirty (30) days
after written notice of such default and such additional time, if any, as is
reasonably necessary to cure the default if the default is of such a nature that
it cannot reasonably be cured in thirty (30) days, provided however, that no
such notice need be given and no such default shall be curable if on three (3)
prior occasions within the same calendar year there had been a default which had
been cured after notice thereof had been given by Landlord to Tenant as herein
provided (i.e., Landlord shall have the right in any such event to terminate the
Lease immediately upon the occurrence of such default without giving Tenant any
opportunity to cure such default) or if Tenant or any guarantor of any of
Tenant's obligations under this Lease, (b) is not paying its debts as such debts
become due, becomes insolvent, seeks relief under chapter 11 of the U.S.
Bankruptcy Code (or any insolvency or similar law of any jurisdiction), or (c)
proposes any dissolution, liquidation, composition, financial reorganization or
recapitalization with creditors; or (d) makes an assignment or trust mortgage
for the benefit of creditors or (e) if a receiver, trustee, custodian or similar
agent is appointed or takes possession with respect to any property or business
of Tenant or such guarantor, or (f) Tenant shall desert or abandon the Premises
or the same shall become, or appear to have become, vacant (whether or not the
key shall have been surrendered or the rent shall have been paid), or (g) any
event shall occur or any contingency shall arise whereby this Lease, or the term
and estate thereby created, would (by operation of law or otherwise) devolve
upon or pass to any person, firm or corporation other than Tenant, except as
expressly permitted under Section 5.6 hereof then, in any such case, whether or
not the Term shall have begun, Landlord may immediately, or at any time while
such default exists and without further notice, terminate this Lease by entry by
Landlord or upon the giving of notice to Tenant, and this Lease shall come to an
end as fully and completely as if such date were the date herein originally
fixed for the expiration of the Term, and Tenant shall then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
7.2 Damages
In the event that this Lease is terminated under any of the provisions contained
in Section 7.1 or shall be otherwise terminated for breach of any obligation of
Tenant, Tenant covenants to pay forthwith to Landlord, as compensation, the
excess of the total rent reserved for the residue of the Term over the rental
value of the Premises for said residue of the Term. In calculating the rent
reserved there shall be included, in addition to the Annual Fixed Rent and all
additional rent, the
<PAGE> 30
- 30 -
value of all other considerations agreed to be paid or performed by Tenant for
said residue. Tenant further covenants as an additional and cumulative
obligation after any such ending to pay punctually to Landlord all the sums and
perform all the obligations which Tenant covenants in this Lease to pay and to
perform in the same manner and to the same extent and at the same time as if
this Lease had not been terminated. In calculating the amounts to be paid by
Tenant under the next foregoing covenant Tenant shall be credited with any
amount paid to Landlord as compensation as in this Section 7.2 provided and also
with the net proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all Landlord's expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commissions, fees for legal services and expenses of preparing the Premises for
such reletting, it being agreed by Tenant that Landlord may (i) relet the
Premises or any part or parts thereof, for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term and may grant such
concessions and free rent as Landlord in its sole judgment considers advisable
or necessary to relet the same and (ii) make such alterations, repairs and
decorations in the Premises as Landlord in its sole judgment considers advisable
or necessary to relet the same, and no action of Landlord in accordance with the
foregoing or failure to relet or to collect rent under reletting shall operate
or be construed to release or reduce Tenant's liability as aforesaid.
In lieu of any other damages or indemnity and in lieu of full recovery by
Landlord of all sums payable under all the foregoing provisions of this Section
7.2, Landlord may by written notice to Tenant, at any time after this Lease is
terminated under any of the provisions contained in Section 7.1 or is otherwise
terminated for breach of any obligation of Tenant and before such fall recovery,
elect to recover, and Tenant shall thereupon pay, as liquidated damages, an
amount equal to the aggregate of the Annual Fixed Rent and additional rent
accrued under Section 2.5, 2.6 and 2.7 in the 12 months ended next following
such termination plus the amount of Annual Fixed Rent and additional rent of any
kind accrued and unpaid at the time of termination and less the amount of any
recovery by Landlord under the foregoing provisions of this Section 7.2 up to
the time of payment of such liquidated damages.
Nothing contained in this Lease shall limit or prejudice the right of Landlord
to prove for and obtain in proceedings for bankruptcy or insolvency by reason of
the termination of this Lease, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which, the damages are to be proved, whether or not the amount be greater,
equal to, or less than the amount of the loss or damages referred to above;
provided, however, that Landlord may not obtain damages in excess of its maximum
actual damages (including fees and expenses) under this Lease.
ARTICLE VIII
MISCELLANEOUS
8.1 Computation of Rentable Floor Areas
For all purposes of this Lease, the rentable floor area is the gross area of
Tenant's Space measured from the plane of the exterior surface of the exterior
glass line to the middle of the
<PAGE> 31
- 31 -
demising walls, and adding a pro-rata share of all Building common areas, but
allowing no deductions for columns or projections within such Tenant's Space.
For purposes hereof, the Building common areas shall include (a) any public
elevator shafts, elevator machine rooms, machinery shafts, and common stairways
and stairwells, (b) on multi-tenant floors, restrooms, elevator lobby, janitor
closets, common corridors, and mechanical rooms, and (c) the first through sixth
floor lobbies, and electrical equipment and mechanical rooms.
8.2 Notice of Lease; Consent of Approval; Notices; Bind and Inure
(a) The titles of the Articles are for convenience only and are not to be
considered in construing this Lease.
(b) Tenant agrees not to record this Lease, but upon request of either party
both parties shall execute and deliver a notice of this Lease in form
appropriate for recording or registration, and if this Lease is terminated
before the term, expires, an instrument in such form acknowledging the date of
termination.
(c) Whenever any notice, approval, consent, request or election is given or made
pursuant to this Lease it shall be in writing. Communications and payments shall
be addressed if to Landlord at Landlord's Original Address or at such other
address as may have been specified by prior notice to Tenant, and if to Tenant,
at Tenant's Original Address or at such other place as may have been specified
by prior notice to Landlord. Any communication so addressed shall be deemed duly
given when mailed by registered or certified mail, return receipt requested. If
Landlord by notice to Tenant at any time designates some other person to receive
payments or notices, all payments or notices thereafter by Tenant shall be paid
or given to the person designated until notice to the contrary is received by
Tenant from Landlord.
(d) The obligations of this Lease shall run with the land, and this Lease shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that only the original Landlord named
herein shall be liable for obligations accruing before the beginning of the
Term, and thereafter the original Landlord named herein and each successive
owner of the Premises shall be liable only for obligations accruing during the
period of ownership.
8.3 Landlord's Failure to Enforce
The failure of Landlord to seek redress for violation of, or to insist upon
strict performance of, any covenant or condition of this Lease, or with respect
to such failure of Landlord to enforce any of the Rules and Regulations referred
to in Section 5.4, whether heretofore or hereafter adopted by Landlord, shall
not be deemed a waiver of such violation nor prevent a subsequent act which
would have originally constituted a violation, from having an the force and
effect of an original violation, nor shall the failure of Landlord to enforce
any of said Rules and Regulations against any other tenant of the Property be
deemed a waiver of any such Rule or Regulation. The receipt by Landlord of
Annual Fixed Rent or additional rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. No provision
of this Lease shall be deemed to have been waived by Landlord, or by Tenant,
unless such waiver be in writing
<PAGE> 32
- 32 -
signed by the party to be charged. No consent or waiver, express or implied, by
Landlord or Tenant, to or of any breach of any agreement or duty shall be
construed as a waiver or consent to or of any other breach of the same or any
other agreement or duty.
8.4 Acceptance of Partial Payments of Rent; Delivery of Keys
No acceptance by Landlord of a lesser sum than the Annual Fixed Rent and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided. The delivery of keys to any
employee of Landlord or to Landlord's agent or any employee thereof shall not
operate as a termination of this Lease.
8.5 Cumulative Remedies
The specific remedies to which Landlord may resort under the terms of this Lease
are cumulative and are not intended to be exclusive of any other remedies or
means of redress to which it may be lawfully entitled in case of any breach or
threatened breach by Tenant of any-provisions of this Lease. In addition to
other remedies provided in this Lease, Landlord shall be entitled to the
restraint by injunction of the violation or attempted or threatened violation of
any of the covenants, conditions or provisions of this Lease or to a decree
compelling specific performance of any such covenants, conditions or provisions.
8.6 Partial Invalidity
if any term of this Lease, or the application thereof to any person or
circumstances, shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable shall not be affected
thereby, and each term of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
8.7 Self-Help
If Tenant shall at any time fail to promptly perform any obligation under this
Lease, Landlord shall have the right, but shall not be obligated, to enter upon
the Premises and to perform such obligation with prior written notice except in
the event of emergency in which event notice is not required notwithstanding the
fact that no specific provision for such substituted performance by Landlord is
made in this Lease with respect to such default, In performing such obligation,
Landlord may make any payment of money or perform any other act. All sums so
paid by Landlord (together with interest at the rate of 2 1/2 percentage points
over the then prevailing prime rate as set forth in The Wall Street Journal and
all necessary incidental costs and expenses in connection with the performance
of any such act by Landlord, shall be deemed to be additional rent under this
Lease and shall be payable to Landlord immediately on demand. Landlord may
<PAGE> 33
- 33 -
exercise the foregoing rights without waiving any other of its rights or
releasing Tenant from any of its obligations under this Lease.
8.8 Tenant's Estoppel Certificate
Tenant agrees from time to time, upon not less than fifteen (15) days' prior
written request by Landlord, to execute, acknowledge and deliver to Landlord a
statement in writing certifying that this Lease is unmodified and in full force
and effect and that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Annual Fixed Rent and additional rent and to perform its
other covenants under this Lease and that there are no uncured defaults of
Landlord or Tenant under this lease (or, if there have been any modifications
that the same is in full force and effect as modified and stating the
modifications and, if there are any defenses, offsets, counterclaims, or
defaults, setting them forth in reasonable detail), and the dates to which the
Annual Fixed Rent, additional rent and other charges have been paid. Any such
statement delivered pursuant to this Section 8.8 may be relied upon by a
prospective purchaser or mortgagee of the Premises or any prospective assignee
of any mortgagee of the Premises. Time is of the essence in respect of any such
requested certificate, Tenant hereby acknowledging the importance of such
certificates in mortgage financing arrangements, prospective sale and the like.
Tenant hereby appoints Landlord Tenant's attorney-in-fact in its name and behalf
to execute such statement if Tenant shall fail to execute such statement within
such fifteen-(15)-day period.
8.9 Waiver of Subrogation
In any case in which Tenant shall be obligated to pay to Landlord any loss,
cost, damage, liability, or expense suffered or incurred by Landlord, Landlord
shall allow to Tenant as an offset against the amount thereof (i) the net
proceeds of any insurance collected by Landlord for or on account of such loss,
cost, damage, liability or expense, provided that the allowance of such offset
does not invalidate or prejudice the policy or policies under which such
proceeds were payable, and (ii) if such loss, cost, damage, liability or expense
shall have been caused by a peril against which Landlord has agreed to procure
insurance coverage under the terms of this Lease, the amount of such insurance
coverage, whether or not actually procured by Landlord.
In any case in which Landlord or Landlord's agents shall be obligated to pay to
Tenant any loss, cost, damage, liability or expense suffered or incurred by
Tenant, Tenant shall allow to Landlord and Landlord's agents as an offset
against the amount thereof (i) the net proceeds of any insurance collected by
Tenant for or on account of such loss, cost, damage, liability, or expense,
provided that the allowance of such offset does not invalidate the policy or
policies under which such proceeds were payable and (ii) the amount of any loss,
cost, damage, liability or expense caused by a peril covered by fire insurance
with the broadest form of property insurance required by this Lease, whether or
not actually procured by Tenant.
The parties hereto shall each procure an appropriate clause in, or endorsement
on, any property insurance policy covering the premises and the Building and
personal property, fixtures and equipment located thereon and therein, pursuant
to which the insurance companies waive subrogation or consent to a waiver of
right of recovery. Having obtained such clauses and/or endorsements each party
hereby agrees that it will not make any claim against or seek to recover
<PAGE> 34
- 34 -
from the other for any loss or damage to its property or the property of others
resulting from firm or other perils covered by such property insurance.
8.10 All Agreements Contained
This Lease contains all of the agreements of the parties with respect to the
subject matter thereof and supersedes all prior dealings between them with
respect to such subject matter.
8.11 Brokerage
Landlord and Tenant each warrant that they have had no dealings with any broker
or agent other than Cushman & Wakefield and Grubb & Ellis in connection with the
original Premises and Grubb & Ellis with respect to the New Premises and the
Lease and covenant to defend, hold harmless and indemnify each other from and
against any and all cost, expense or liability for any compensation, commissions
and charges claimed by any broker or agent claiming by or through them with
respect to dealings in connection with this Lease or the negotiation thereof
Landlord will be responsible for paying all brokerage commissions.
8.12 Submission Not an Option
The submission of this Lease or a summary of some or all of its provisions for
examination does not constitute a reservation of or option for the Premises or
an offer to lease.
8.13 Applicable Law
This Lease, and the rights and obligations of the parties hereto, shall be
construed and enforced in accordance with the laws of The Commonwealth of
Massachusetts.
8.14 Intentionally Deleted
8.15 Holdover
If Tenant or anyone claiming under Tenant shall remain in possession of the
Premises or any part thereof after the expiration or prior termination of the
term of this Lease without any agreement in writing between Landlord and Tenant
with respect thereto, then, prior to the acceptance of any payments for rent or
use and occupancy by Landlord, the person remaining in possession shall be
deemed a tenant-at-sufferance. Whereas the parties hereby acknowledge that
Landlord may need the Premises after the expiration or prior termination of the
term of the Lease for other tenants and that the damages which Landlord may
suffer as the result of Tenant's holding-over cannot be determined as of the
date of this Lease, in the event that Tenant so holds over, Tenant shall pay to
Landlord in addition to all rental and other charges due and accrued under the
Lease prior to the date of termination, charges (based upon the fair market
rental value of the Premises) for use and occupation of the Premises thereafter
and, in addition to such sums and any and all other rights and remedies which
Landlord may have at law or in equity, an additional use and occupancy charge in
the amount of one hundred percent (100%) of either the Annual Fixed Rent and
other charges calculated (on a daily basis) at the highest rate payable under
the terms of this Lease, but measured from the day on
<PAGE> 35
- 35 -
which Tenant's hold-over commenced and terminating on the day on which Tenant
vacates the Premises or the fair market rental value of the Premises for such
period, whichever is greater. Notwithstanding the foregoing, Landlord shall have
the right to elect to recover any other damages which Landlord is permitted to
recover under this Lease in lieu of said liquidated damages by giving Tenant
written notice of such election. From and after the date on which Landlord gives
Tenant such notice, said liquidated damages shall cease to accrue and Tenant
shall be liable to Landlord for any damages recoverable under this Lease which
accrue thereafter.
8.16 Arbitration
Any disputes relating to provisions or obligations in this Lease as to which a
specific provision for a reference to arbitration is made herein shall be
submitted to arbitration in accordance with the provisions of applicable state
law, as from time to time amended, provided that in no event shall Tenant have
the fight to require arbitration of any matter relating to Tenant's obligation
to pay Annual Fixed Rent, additional rent or any other charges. Arbitration
proceedings, including the selection of an arbitrator, shall be conducted
pursuant to the rules, regulations and procedures from time to time in effect as
promulgated by the American Arbitration Association. Prior written notice of
application by either party for arbitration shall be given to the other at least
ten (10) days before submission of the application to the said Association's
office in the city wherein the Building is situated (or the nearest other city
having an Association office). The arbitrator shall hear the parties and their
evidence. The decision of the arbitrator shall be binding and conclusive, and
judgment upon the award or decision of the arbitrator may be entered in the
Superior Court of the Commonwealth of Massachusetts. The parties consent to the
jurisdiction of the Superior Court of the Commonwealth of Massachusetts and
further agree that any process or notice of motion or other application to the
Superior Court or a Judge thereof may be served outside the Commonwealth of
Massachusetts by registered mail or by personal service, provided a reasonable
time for appearance is allowed. The costs and expenses of each arbitration
hereunder and their apportionment between the parties shall be determined by the
arbitrator in his award or decision. No arbitrable dispute shall be deemed to
have arisen under this Lease prior to (i) the expiration of the period of twenty
(20) days after the date of the giving of written notice by the party asserting
the existence of the dispute together with a description thereof sufficient for
an understanding thereof; and (ii) where a Tenant payment is in issue, the
amount billed by Landlord having been paid by Tenant.
8.17 Inability to Perform
This Lease and the obligations of Tenant to pay rent hereunder and perform all
the other covenants, agreements, terms, provisions and conditions hereunder on
the part of Tenant to be performed shall in no way be affected, impaired or
excused because Landlord is unable to fulfill any of its obligations under this
Lease or is unable to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make or is delayed in making any
repairs, replacement, additions, alterations, improvements or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of strikes or labor
troubles or any other similar or dissimilar cause whatsoever beyond Landlord's
reasonable control, including but not limited to, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any
<PAGE> 36
- 36 -
department thereof of any governmental agency or by reason of the conditions of
supply and demand which have been or are affected by war, hostilities or other
similar or dissimilar emergency. In each such instance or inability of Landlord
to perform, Landlord shall exercise reasonable diligence to eliminate the cause
of such inability to perform.
8.18 Exculpatory Clause
Neither Tenant or any person or entity claiming by, through or under Tenant
shall assert or seek to enforce any claim or breach of this Lease against any of
Landlord's assets other than Landlord's equity interest in the Building and in
the uncollected rents, issues and profits thereof, and Tenant and such parties
shall look solely to such interest for the satisfaction of any liability of
Landlord or Landlord's agents under this Lease or otherwise, it being
specifically agreed that in no event shall Landlord (or any of the officers,
trustees, directors, partners, beneficiaries, joint venturers, members,
stockholders or other principals, agents (including, without limitation,
Landlord's managing agent for the Property) or representatives, and the like,
disclosed or undisclosed, thereof) ever be personally liable for any such
liability. This paragraph shall not limit any right that Tenant might otherwise
have to obtain injunctive relief against Landlord or to take any other action
which shall not involve the personal liability of Landlord to respond in
monetary damages from Landlord's assets other than the Landlord's interest in
the Building, as aforesaid. In no event shall Tenant or Landlord (or any of the
officers, trustees, directors, partners, beneficiaries, joint venturers,
members, stockholders or other principals, agents (including, without
limitation, Landlord's managing agent for the Property) or representatives and
the like, disclosed or undisclosed, thereof) ever be liable for consequential
damages. If by reason of Landlord's failure to complete construction of the
Premises, Landlord shall be held to be in breach of this Lease, Tenant's sole
and exclusive remedy shall be a right to terminate this Lease.
8.19 Parties Bound - Seisin of Title
The covenants, agreements, terms, provisions and conditions of this Lease shall
bind and benefit the successors and assigns of the parties hereto with the same
effect as if mentioned in each instance where a party hereto is named or
referred to, except that no violation of the provisions of Section 5.6 hereof
shall operate to vest any rights in any successor or assignee of Tenant and that
the provisions of this Section 8.19 shall not be construed as modifying the
default provisions contained in Article VII hereof.
If, in connection with or as a consequence of the sale, transfer or other
disposition of Landlord's interest in the Building or Property, any party who is
Landlord ceases to be the owner of the reversionary interest in the Premises,
Landlord shall be entirely freed and relieved from the performance and
observance thereafter of all covenants and obligations hereunder on the part of
Landlord to be performed and observed, it being understood and agreed in such
event (and it shall be deemed and construed as a covenant running with the land)
that the person succeeding to Landlord's ownership of said reversionary interest
shall thereupon and thereafter assume, and perform and observe, any and all of
such covenants and obligations of Landlord.
8.20 Termination of Circle.com Lease
<PAGE> 37
- 37 -
Simultaneously with the execution of this Lease, Landlord is executing a Lease
Termination Agreement (the "Termination Agreement") with Circle.com (f/k/a
Natural Intelligence), an existing tenant at 725 Concord Avenue, Cambridge,
Massachusetts. Pursuant to the Termination Agreement, Circle.com has agreed to
vacate its existing premises consisting of 10,308 rentable square feet on the
second floor of the Building on or before June 30, 2000, in exchange for, among
other consideration, payment of One Hundred Twenty-Five Thousand and 00/100
($125,000.00) Dollars.
Simultaneously with the execution of this Lease, Tenant will deliver to Landlord
a check payable to Seder & Chandler, attorney for Koll Bren in the amount of One
Hundred Twenty-Five Thousand and 00/100 ($125,000.00) Dollars to be held in
escrow pending the execution of the Termination Agreement and Tenant's departure
from the Premises in accordance with the Termination Agreement.
The Lease and the Termination Agreement are parts of a single transaction and
neither shall be operative without the other.
ARTICLE IX
RIGHTS OF PARTIES HOLDING PRIOR INTERESTS
9.1 Lease Subordinate
This Lease shall be subject and subordinate to any mortgage now or hereafter on
the Property or Building, or both, which are separately and together hereinafter
in this Article IX referred to as "the mortgaged premises", and to each advance
made or hereafter to be made under any mortgage, and to all renewals,
modifications, consolidation, replacements and extensions thereof and all
substitutions therefor. In the event of acquisition of title by the holder of a
mortgage through foreclosure proceedings or otherwise (or by anyone purchasing
the Premises at any foreclosure sale), Tenant agrees to recognize the title
holder as "Landlord", and upon Landlord's request shall enter into an agreement
with the holder of any current or future mortgage to that effect, which
agreement shall expressly bind and inure to the benefit of the successors and
assigns of Tenant and of the holder and upon anyone purchasing the Premises at
any foreclosure sale. Landlord shall request that the holder or any current or
future mortgage enter into an agreement with Tenant by the terms of which such
holder will agree to recognize the rights of Tenant under this Lease and to
accept Tenant as "tenant" of the Premises under the terms and conditions of this
Lease in the event of acquisition of title by such holder through foreclosure
proceedings or otherwise (or by anyone purchasing the Premises at any
foreclosure sale), provided, however, that such holder (or by anyone purchasing
the Premises at any foreclosure sale) shall not: (i) be liable for any previous
act or omission of Landlord under this Lease; (ii) be subject to any offset,
defense or counterclaim which shall theretofore have accrued to Tenant against
Landlord; (iii) have any obligation with respect to any security deposit unless
it shall have been paid over or physically delivered to such successor; or (iv)
be bound by any previous modification of this Lease or by any previous payment
of Annual Fixed Rent for a period greater than one (1) month, made without the
consent of such holder where such consent is required by the applicable
instrument. Notwithstanding the foregoing any such holder may at its election
<PAGE> 38
- 38 -
subordinate its mortgage to this Lease without the consent or approval of
Tenant. Tenant and Landlord agree to execute and deliver any appropriate
instruments necessary to carry out the agreements contained in this Section 9.1.
Tenant acknowledges that, where applicable, any consent or approval hereafter
given by Landlord may be subject to the further consent or approval of the
holder; and the failure or refusal of such holder to give such consent or
approval shall, notwithstanding anything to the contrary in this Lease
contained, constitute reasonable justification for Landlord's withholding its
consent or approval. Tenant hereby irrevocably constitutes and appoints Landlord
or any holder, and their respective successors in interest, acting singly,
Tenant's attorney-in-fact to execute and deliver any such certificate or
instrument for, on behalf and in the name of Tenant, but only if Tenant fails to
execute, acknowledge and deliver any such certificate or instrument within ten
(10) days after Landlord or such holder has made written request therefor and
such written request therefor notifies the Tenant of the effect of failing to
meet the ten (10) day deadline.
9.2 Rights of Holder of Mortgage to Notice of Defaults by Landlord and to Cure
Same
No act or failure to act on the part of Landlord which would entitle Tenant
under the terms of this Lease, or by law, to be relieved of Tenant's obligations
hereunder or to terminate this Lease, shall result in a release or termination
of such obligations or a termination of this Lease unless (i) Tenant shall have
first given written notice of Landlord's act or failure to act to Landlord's
mortgagees of record, if any, specifying the act or failure to act on the part
of Landlord which could or would give basis to Tenant's rights; and (ii) such
mortgagees after receipt of such notice, have failed or refused to correct or
cure the condition complained of within a reasonable time thereafter; but
nothing contained in this Section 9.3 shall be deemed to impose any obligation
on any such mortgagees to correct or cure any condition. "Reasonable time" as
used above means and includes a reasonable time to obtain possession of the
mortgaged premises if the mortgagee elects to do so and a reasonable time to
correct or cure the condition if such condition is determined to exist.
EXECUTED as a sealed instrument in two or more counterparts on the day and year
first above written.
LANDLORD:
Koll Bren Fund V, L.P. a Delaware limited partnership
By Koll Bren Schreiber Realty Advisors, Inc., a Delaware corporation, its Agent
By: /s/ Peter M. Potrykus
---------------------------------
Peter M. Potrykus, Vice President
TENANT:
eROOM TECHNOLOGY, INC., f/k/a
INSTINCTIVE TECHNOLOGY, INC.
<PAGE> 39
- 39 -
By: /s/ Robert L. Lentz
---------------------------------
Robert L. Lentz, Sr.,
Senior Vice President and
Chief Financial Officer
<PAGE> 40
EXHIBIT A
Description of Lot
That certain parcel of land situate in Cambridge in the County of Middlesex and
Commonwealth of Massachusetts, described as follows:
Southwesterly by Concord Avenue, fifty-feet;
Northwesterly by Lot B24 as shown on plan hereinafter mentioned, one
hundred eighty-nine and 74/100 feet;
Northeasterly by the southwesterly line of a fifty foot way as shown
said plan, fifty and 10/100 feet; and
Southeasterly by land now or formerly of Jean D. Balkin, one hundred
eight-six and 66/100 feet.
Said parcel is shown as Lot 3 on said plan (Plan No. 7191R).
All of said boundaries are determined by the Court to be located as shown on a
subdivision plan, as approved by the Court, filed in the Land Registration
Office, a copy of which is filed in the Registry of Deeds for the South Registry
District of Middlesex County in Registration Book 480, Page 589, with
Certificate 782014.
Also another certain parcel of land situate in said Cambridge, described as
follows:
Southwesterly by Concord Avenue, one hundred and thirty-five feet;
Northwesterly by the southeasterly line of a twenty-six foot way as shown
on plan hereinafter mentioned, one hundred sixty-five and
11/100 feet;
Northerly by the southerly curving line forming the junction of
said twenty-six foot way and a fifty-foot way shown
on said plan, fifty-one and 29/100 feet;
Northeasterly by the southwesterly line of said fifty-foot way, one
hundred sixteen and 24/100 feet; and
Southeasterly by land now or formerly of Jean D. Balkin, one hundred
eighty-nine and 74/100 feet.
Said parcel is shown as Lot B24 on said plan (Plan No. 7191P).
All of said boundaries are determined by the Court to be located as shown on a
subdivision plan, as approved by the Court, filed in the Land Registration
Office, a copy of which is filed in the
A-1
<PAGE> 41
Registry of Deeds for the South Registry District of Middlesex County in
Registration Book 462, Page 433, with Certificate 69277.
Also another certain parcel of land situate in said Cambridge, described as
follows:
Southwesterly by the northeasterly line of fifty foot way as shown on
plan hereinafter mentioned, three hundred and fifty-seven
feet;
Northwesterly by land now or formerly of Dorothy B. Makin, one hundred
four and 19/100 feet;
Northeasterly by said Makin land, three hundred and fifty-seven feet; and
Southeasterly by Lot B2 on said plan, on hundred four and 19/100 feet.
Said parcel is shown as Lot B14 on said plan (Plan No. 71913).
All of said boundaries are determined by the Court to be located as shown on a
subdivision plan, as approved by the Court, filed in the Land Registration
Office, a copy of which is filed in the Registry of Deeds for the South Registry
District of Middlesex County in Registration Book 362, Page 425, with
Certificate 54200.
Also another certain parcel of land situate in said Cambridge, described as
follows:
Southwesterly by Lot 27 as shown on plan hereinafter mentioned,
sixty-three and 34/100 feet;
Northwesterly by Lot 25 on said plan, eight and 50/100 feet;
Northeasterly by Lot B14 on said plan, three hundred and fifty-seven
feet;
Southeasterly by Lots B2 and 13 on said plan, fifty and 01/100 feet;
Southwesterly by said Lot 13 and by Lots 14, B27, 3 and B24 on said plan,
two hundred ninety-six and 26/100 feet; and
Southerly by said Lot B24, nineteen and 24/100 feet.
Also another certain parcel of land situate in said Cambridge, described as
follows:
Easterly by the westerly line of Smith Place, thirty-one and
63/100 feet;
Southwesterly by Lots 29 and 7 as shown on said plan hereinafter
mentioned, four hundred fifty-eight and 44/100 feet;
Northwesterly by Lot 25 on said plan, forty and 06/100 feet;
A-2
<PAGE> 42
Northeasterly by land now or formerly of Horn Brothers Incorporated and
by Lots 16 and 17 on said plan, three hundred seventy-seven
and 63/100 feet; and
Southeasterly twenty and 09/100 feet, and
Northeasterly sixty-six and 25/100 feet, by Lot B8 on said plan.
Said parcel is shown as Lot 30 on said plan (Plan No. 7191-3).
all of said boundaries are determined by the Court to be located as shown on a
subdivision plan, as approved by the Court, filed in the Land Registration
Office, a copy of which is file din the Registry of Deeds for the South Registry
District of Middlesex County in Registration Book 643, page 197, with
Certificate 102747.
there is appurtenant to said Lot 3 the right to use that portion of the
twenty-six foot way as abuts Lot B24 as shown on said first mentioned plan and
the further right to use said fifty foot way, both in common with others
entitled thereto, for all purposes for which ways are commonly use din the City
of Cambridge set forth in Document 247366 and subject to the reservation and
agreement therein contained.
There is appurtenant to said Lot B24 the right to use portions of said way in
common with others entitled thereto for al purposes for which ways are commonly
sue din the City of Cambridge set forth in Document 238034 and subject to the
reservation and agreement therein contained.
There is appurtenant to said Lot B14, the right to use said way fifty feet in
width and the way twenty-six feet in width leading to Concord Avenue, as shown
on said plan, said right of ways to be used in common with others entitled
thereto.
There is also appurtenant to said Lot B14, the right to use in common with
others the railroad siding on the northerly side of the building located on said
land.
Said Lots 28 and 30 have the benefit of the reservation set forth in Document
227978.
There is appurtenant to said Lots 28 and 30 the right to use the whole of Smith
Place as shown on said plan in common with others entitled thereto.
A-3
<PAGE> 43
EXHIBIT B
Leasehold Improvement Plans Requirements
Attached to and made part of Lease
Between
Koll Bren Fund V
and
eROOM TECHNOLOGY, INC.
1. Floor plan indicating location of partitions and doors (details required of
partition and door types).
2. Location of standard electrical convenience outlets and telephone outlets.
3. Location and details of special electrical outlets; i.e., Xerox.
4. Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located indicating
fixtures to be controlled.
5. Locations and details of special ceiling conditions, fighting fixtures,
speakers, etc.
6. Locations and details of all plumbing fixtures; sinks, drinking fountains,
etc.
7. Locations and specifications of floor covering, paint or paneling with
paint colors referenced to standard color system.
8. Finish schedule plan indicating wall covering, paint, or paneling with
paint colors referenced to standard color system.
9. Details and specifications of special grillwork, glass partitions, rolling
doors and grilles, blackboards, shelves, etc.
10. Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latch sets or locksets, closures, stops, and
any special items such as thresholds, sound-proofing, etc. Keying
schedule is required.
11. Verified dimensions of all built-in equipment (file cabinets, lockers, plan
files, etc.)
12. Location and weights of storage files.
13. Location of any special soundproofing requirements.
14. Locations and details of special floor areas exceeding 70 pounds of live
load per square foot.
B-1
<PAGE> 44
15. All necessary mechanical drawings to complete the Premises in accordance
with Tenant's Plans.
16. All drawings to be uniform size (30" x 46") and shall incorporate the
standard project electrical and plumbing symbols and be at a scale of
1/8n = 1' or larger.
17. Drawing submittal shall include one sepia and one blue line print of each
drawings.
B-2
<PAGE> 45
EXHIBIT C
Landlord Services
Attached to and made part of Lease
Between
Koll Bren Fund V
and
eROOM TECHNOLOGY, INC.
I. CLEANING
A. Lavatories in Common Areas Only
Daily: (Monday through Friday, inclusive, holidays excepted.)
Sweep and damp mop floors.
Clean all mirrors, powder shelves, dispensers and receptacles, bright
work, flushometers, piping, and toilet seat hinges.
Wash both sides of all toilet seats.
Wash all basins, bowls and urinals.
Dust and clean all powder room fixtures.
Empty and clean paper towel and sanitary disposal receptacles.
Remove waste paper and refuse.
Refill tissue holders, soap dispensers, towel dispensers, vending
sanitary dispensers; materials to be furnished by Landlord.
A sanitizing solution will be used in all lavatory cleaning.
Monthly:
Machine scrub lavatory floors.
Wash all partitions and tile walls in lavatories.
B. Main Lobby, Elevators, Building Exterior and Corridors
Daily: (Monday through Friday, inclusive, holidays excepted.)
Sweep and wash all floors. (Buff both main public lobby floors.)
C-1
<PAGE> 46
Wash all rubber mats.
Clean elevators, wash or vacuum floors, wipe down walls and doors.
Spot clean any metal work inside lobby.
Spot clean any metal work surrounding Building Entrance doors.
Weekly:
All resilient tile floors in public areas to be treated equivalent to
spray buffing.
C. Window Cleaning
Windows of exterior walls will be washed semiannually.
D. Tenant requiring services in excess of those described above shall
request same through Landlord, at Tenant's expense.
II. HEATING, VENTILATING, AIR CONDITIONING
A. Landlord shall furnish space heating and cooling as normal seasonal changes
may require to provide reasonably comfortable space temperature and ventilation
for occupants of the Premises under normal business operation, daily from 8:00
a.m. to 6:00 p.m. (Saturdays to 1:00 p.m.), Sundays and holidays excepted.
After hours heating, venting and air conditioning to be billed to tenant at
cost, including reasonable cost and management expense.
B. The air conditioning system is based upon an occupancy of not more than one
person per 150 square feet of floor area, and upon a combined fighting and
standard electrical load not to exceed 2.5 watts per square foot of usable area.
In the event Tenant exceeds this condition or introduces onto the Premises
equipment which overloads the system, and/or in any other way causes the system
not adequately to perform their proper functions, supplementary systems may at
Landlord's option be provided by Landlord at Tenant's expense, and Tenant shall
reimburse Landlord in such an amount as will compensate it for the cost incurred
by it in operating such supplementary systems.
III. WATER
A. Cold water at temperatures supplied by the local utility water mains for
drinking, lavatory, kitchen, restaurant and toilet purposes and hot water for
lavatory purposes only from regular building supply at prevailing temperatures;
provided however, that Landlord may, at its expense, install a meter or meters
to measure the water supplied to any kitchen (including dishwashing) and
restaurant areas in the Premises, in which case Tenant shall upon Landlord's
request reimburse Landlord for the cost of the water (including heating thereof)
consumed in such areas and the sewer use charge resulting therefrom.
C-2
<PAGE> 47
IV. ELEVATORS
A. The passenger elevator system shall be in automatic operation and available
to Tenant at all times. Use of the elevators for service purposes will have to
be scheduled with the Landlord and coordinated with the needs of the other
tenants.
V. ELECTRICAL SERVICES
Tenant shall pay for all electricity consumed on the Premises.
C-3
<PAGE> 48
EXHIBIT D
FLOOR PLAN
Attached to and made part of Lease
Between
Koll Bren Fund V
and
eROOM TECHNOLOGY, INC.
[INSERT FLOOR DIAGRAMS]
D-1
<PAGE> 49
EXHIBIT E
REQUIRED TENANT WORK GENERAL CONDITIONS
Attached to and made part of Lease
Between
Koll Bren Fund V
and
eROOM TECHNOLOGY, INC.
The following General Conditions are promulgated pursuant to Section 3.1 of the
Lease ("Lease").
1. DEFINITIONS
1.1 Building: 725 Concord Avenue, Cambridge, Massachusetts
1.1 Consultant: Any architectural, engineering, or design consultant
engaged by a Tenant in connection with Tenant Work.
1.3 Contractor: Any Contractor engaged by a Tenant of the Building for the
performance of any Tenant Work, and any Subcontractor employed by any
such Contractor.
1.4 Plans: AU architectural, electrical and mechanical construction
drawings and specifications required for the proper-construction of the
Tenant Work.
1.5 Regular Business Hours: Monday through Friday, 9:00 a.m. through 5:00
P.M., holidays excluded.
1.6 Construction Coordinator: Such individual or organization as Landlord
may designate from time to time.
1.7 Senior Tenant Design Coordinator: Such individual as Landlord may
designate from time to time.
1.8 Tenant: Any occupant of the Building.
1.9 Tenant Work: Any alterations, improvements, additions, repairs or
installations in the Building performed by or on behalf of any Tenant.
1.10 Tradesperson: Any employee (including, without limitation, any
mechanic, laborer, or Tradesperson) employed by a Contractor performing
Tenant Work.
E-1
<PAGE> 50
2. GENERAL
2.1 All Tenant Work shall be performed in accordance with these General
Conditions and the applicable provisions of the Lease.
2.2 The provisions of these General Conditions shall be incorporated in all
agreements governing the performance of all Tenant Work, including,
without limitation, any agreements governing services to be rendered by
each Contractor and Consultant.
3. PRE-CONSTRUCTION NOTIFICATION AND APPROVALS
3.1 Approval to Commence Work
a. Tenant shall submit to Construction Coordinator, for the
approval of Retail Construction Coordinator, the names of all
prospective Contractors prior to issuing any bid packages to
such Contractors.
b. No Tenant Work shall be undertaken by any Contractor or
Tradesperson unless and until all the matters set forth in
Article 3.2 below have been received for the Tenant Work in
question and unless Construction Coordinator has approved the
matters set forth in Article 3.2 below.
3.2 No Tenant Work shall be performed unless, at least three days before
any Tenant Work is to begin, all of the following has been provided to
the Construction Coordinator and approved. In the event that Tenant
proposes to change any of the following, the Construction Coordinator
shall be immediately notified of such change and such change shall be
subject to the approval of the Construction Coordinator.
a. Schedule for the work, indicating start and completion dates,
any phasing and special working hours, and also a list of
anticipated shutdown of building systems.
b. List of all Contractors and Subcontractors, including
addresses, telephone numbers, trades employed, and the union
affiliation 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 A
to these General Conditions, naming Landlord and Construction
Coordinator as an additional insured party.
f. Notice of the involvement of any Contractor in any ongoing or
threatened labor dispute.
E-2
<PAGE> 51
g. Payment, Performance and Lien Bonds from sureties acceptable
to Landlord, in form acceptable to Landlord, naming Landlord
as an additional obligee.
h. 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.
3.3 Reporting Incidents
All accidents, disturbances, labor disputes or threats thereof, and other
noteworthy events pertaining to the Building or the Tenant's property shall be
reported immediately to the Construction Coordinator. A written report must
follow within 24 hours.
4. CONSTRUCTION SCHEDULE
4.1 Coordination
a. All Tenant Work shall be carried out expeditiously and with
minimum disturbance and disruption to the operation of the
Building and without causing discomfort, inconvenience, or
annoyance to any of the other tenants or occupants of the
Building or the public at large.
b. All schedules for the performance of construction, including
materials deliveries, must be coordinated through the
Construction Coordinator. The Construction Coordinator shall
have the right, without incurring any liability to any Tenant,
to stop activities and/or to require rescheduling of Tenant
Work based upon adverse impact on the tenants or occupants of
the Building or on the maintenance or operation of the
Building.
c. If any Tenant Work requires the shutdown of risers and mains
for electrical, mechanical, sprinklers and plumbing work, such
work shall be supervised by a representative of Landlord. No
Tenant Work will be performed in the Buildings mechanical or
electrical equipment rooms without both Landlord's prior
approval and the supervision of a representative of Landlord,
the cost of which shall be reimbursed by the Tenant.
4.2 Time Restrictions
a. Subject to Paragraph 4.1 of these General Conditions, general
construction work will generally be permitted during Regular
Business Hours.
b. Tenant shall provide the Construction Coordinator with at
least twenty-four (24) hours notice before proceeding with
Special Work, as hereinafter defined, and such Special Work
will be permitted only at times agreed to by the Building
Manager during periods outside of Regular Business Hours.
Tenant shall pay for all additional supervisory and other
premium costs incurred by Landlord as the
E-3
<PAGE> 52
result of any such Special Work. "Special Work" shall be
defined as the following operations:
(1) All utility disruptions, shutoffs and turnovers;
(2) Activities involving high levels of noise, including
demolition, coring, drilling and ramsetting;
(3) Activities resulting in excessive dust or odors,
including demolition and spray painting; and
(4) Any other work which Tenant proposes to perform
outside of Regular Business Hours.
c. If coordination, labor disputes or other circumstances
require, the Construction Coordinator 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.
5. CONTRACTOR PERSONNEL
5.1 Work in Harmony
a. All Contractors shall be responsible for employing skilled and
competent personnel and suppliers who shall abide by the
Supplemental Conditions herein set forth as amended from time
to time by Landlord.
b. No Tenant shall 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.
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 a Tenant, or should such Contractor be deemed by Landlord
to have violated by applicable rules or regulations, then upon
twelve hours written notice, Landlord may, without incurring
any liability to Tenant or said contractor, require any such
Contractor to vacate the premises demised by such Tenant and
the Building, and to cease all further construction work
therein.
d. Tenant agrees that all Tenant Work shall be performed by
Contractors employing Union labor only. The failure of
Landlord or the Retail Construction Coordinator to disapprove
a proposed contractor which is, in fact, a Contractor not
employing Union labor, shall not constitute a waiver by
Landlord of this provision since Landlord and the Retail
Construction Coordinator may be unable to determine readily
whether a proposed contractor employs such labor.
E-4
<PAGE> 53
e. In the employment of all workmen by any Contractor, working
arrangements generally accepted and prevailing on so-called
Union jobs in the Boston area shall be complied with.
f. Tenant shall use, and Tenant shall require the Contractor to
use his best efforts to prevent work stoppages on the
Premises, or elsewhere in the Building, to the extent
attributable to work being performed on the Premises,
irrespective of the reason for any such stoppage, in
recognition of the fact that it is of the utmost importance to
Landlord and all those occupying space in the Building that
there be no interruption in the progress of the work. Tenant's
agreement to utilize one hundred percent (100%) Union labor in
Tenant's work, and its performance of such obligation, shall
not be treated as, by the fact, compliance with this
requirement.
5.2 Conduct
a. Tradespersons shall wear clothing suitable for their work and
shall remain fully attired at all times. All Contractors will
be responsible for their Tradespersons' proper behavior and
conduct.
b. The Construction Coordinator reserves the right to remove
anyone 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; is interfering with the work
of others; or is in any other way displaying conduct or
performance not compatible with the Landlord's standards.
Tenant shall exonerate, indemnify and hold Landlord and the
Construction Coordinator harmless from any loss, cost,
damages, or liability incurred by reason of compliance with
any such demand.
5.3 Access
a. All Contractors and Tradespersons shall contact the
Construction Coordinator prior to commencing work, to confirm
work location and Building access, including elevator usage
and times of operation. Access to the Building before and
after Regular Business Hours or any other hours designated
from time to time by the Building Manager and all day on
weekends and holidays will only be provided when twenty-four
(24) hours advance notice is given to the Construction
Coordinator.
b. No Contractor or Tradesperson will be permitted to enter any
private or public space in the Building except through
entrances designated by the Construction Coordinator.
5.4 Parking
Parking is not allowed in or near truck docks, in handicapped or fire access
lanes, or any private ways in or surrounding the property. Vehicles so parked
will be towed at the expense of the Tenant who has engaged the Contractor for
whom the Owner of such vehicle is employed.
E-5
<PAGE> 54
6. BUILDING MATERIALS
6.1 Delivery
a. All deliveries of construction materials shall be made at the
predetermined times approved by the Construction Coordinator
and shall be effected safely and expeditiously only at the
location determined by the Construction Coordinator.
b. Tenant shall give the Construction Coordinator at least
twenty-four (24) hours notice of deliveries of any materials
in the Building.
6.2 Transportation in Building
a. Distribution of materials from delivery point to the work area
in the Building shall be accomplished with the least
disruption to the operation of the Building possible.
Elevators will be assigned for material delivery and will be
controlled by the Construction Coordinator.
b. Contractors shall provide adequate protection to all carpets,
wall surfaces, doors and trim in all public areas through
which materials are transported. Contractors shall
continuously clean all such areas. Protective measures shall
include runners over carpet, padding in elevators and any
other measures determined by the Construction Coordinator.
c. Any damage caused to the Building through the movement of
construction materials or otherwise shall be the
responsibility of Tenant who has engaged the Contractor
involved. Charges for such damage will be submitted by the
Landlord directly to the Tenant.
6.3 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) authorized by the
Construction Coordinator, (ii) all applicable laws,
ordinances, rules and regulations are complied with, and (iii)
all necessary permits have been obtained. 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 and specifications approved by
Landlord, and must be installed in the locations shown on the
drawings approved by the Landlord.
E-6
<PAGE> 55
d. All work shall be subject to reasonable supervision and
inspection by a representative of Landlord.
e. No alterations to approved plans will be made without prior
knowledge and approval of the Senior Tenant Design
Coordinator. Such changes shall be documented on the as built
drawings required to be delivered to Landlord pursuant to
Paragraph 10 of these General Conditions. At the time that
such changes are prepared by the Tenant and approved by
Landlord, Tenant shall submit such approved changes to the
Construction Coordinator. At the time that any shop drawing is
approved by the Senior Tenant Design Coordinator, Tenant shall
submit such approved shop drawings to the Construction
Coordinator.
f. All protective devices (e.g., temporary enclosures and
partitions) and materials, as well as their placement, must
be approved by the Construction Coordinator.
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 existing and/or new openings made through the floor slab
for piping, cabling, etc. must be fire-stopped in accordance
with applicable codes. All holes in the floor slab at
abandoned floor outlets, etc. will be filled with solid
concrete.
6.4 Salvage and Waste Removal
a. All rubbish, waste and debris shall be neatly and cleanly
removed from the Building by Contractors daily and placed in a
trash container designated by the Construction Coordinator,
unless otherwise approved by the Construction Coordinator. For
any demolition and debris, each Contractor must make
arrangements with the Construction Coordinator for the
scheduling and location of an additional dumpster to be
supplied at the cost of the Tenant engaging such Contractor.
Where, in the opinion of the Construction Coordinator, such
arrangements are not practical, such Contractors will make
alternative arrangements for removal at the cost of the
Tenants engaging such Contractors.
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. Contractors shall, prior to removing any item from the
Building, notify the Construction Coordinator that it intends
to remove such item. At the election of Construction
Coordinator, Contractors shall deliver any such items to the
Construction Coordinator. Such items will be delivered,
without cost, to an area designated by the Construction
Coordinator which area shall be within the Building or the
complex in which the Building is located.
7. PAYMENT OF CONTRACTORS
E-7
<PAGE> 56
Tenant shall promptly pay the cost of all Tenant Work so that Tenant's premises
and the Building shall be free of liens for labor or materials. If any
mechanic's hen is filed against the Building or any part thereof which is
claimed to be attributable to the Tenant, its agents, employees or contractors,
Tenant shall give immediate notice of such lien to the Landlord and shall
promptly discharge the same by payment or filing any necessary bond within ten
(10) days after Tenant has first notice of such mechanic's lien.
8. CONTRACTOR'S INSURANCE
Prior to commencing any Tenant Work, and throughout the performance of the
Tenant Work, each Contractor shall obtain and maintain insurance in accordance
with Exhibit A 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.
9. SUBMISSIONS UPON COMPLETION
a. Upon completion of any Tenant Work and prior to taking occupancy,
Tenant shall submit to Landlord a permanent Certificate of Occupancy
and final approval of any other governmental agencies having
jurisdiction.
b. Tenant shall submit to the Senior Tenant Design Coordinator a final
"as-build" set of drawings showing all items of the work in full detail
as required in the Tenant Design Criteria Manual.
10. ADJUSTMENTS OF REGULATIONS
In accordance with Section 5.4 of the Lease, Landlord has the right to cancel or
amend these General Conditions.
11. CONFLICT BETWEEN RULES AND REGULATIONS AND LEASE
In the event of any conflict between the Lease and these General Conditions, the
term of the Lease shall control.
E-8
<PAGE> 57
EXHIBIT A
TO
REQUIRED TENANT WORK GENERAL CONDITIONS
INSURANCE REQUIREMENTS FOR CONTRACTORS
When Tenant Work is to be done by Contractors in the Building, the Tenant
authorizing such work shall be responsible for including in the contract for
such work the following insurance and indemnity requirements to the extent that
they are applicable. Insurance certificates must be received prior to
construction. Landlord and the Construction Coordinator shall be name as an
additional insured party on all certificates.
INSURANCE
Each Contractor and each Subcontractor shall, until the completion of the Tenant
Work in question, procure and maintain at its expense, the following insurance
coverages with companies acceptable to Landlord in the following minimum limits:
Worker's Compensation
(including coverage for Occupational Disease)
Limit of Liability
Worker's Compensation -- As required by law
Employees Liability
Comprehensive General Liability
(including Broad Form Comprehensive Liability Endorsement, Contractual Liability
assumed by the Contractor and the Tenant under Article 5.7 of the Lease and
Completed Operations coverage)
Limit of Liability
Bodily Injury & Property Damage
$5,000,000 combined single limit
Comprehensive Automobile Liability
(including coverage for Hired and Non-owned Automobiles)
Limit of Liability
Bodily Injury & Property Damage
$5,000,000 per occurrence
E-9
<PAGE> 58
INDEMNITY
Each Contractor shall indemnify, defend with counsel acceptable to Landlord, and
hold Landlord and Landlord's agents from and against any claims, losses, and
damages arising out of the work performed by such Contractor, unless such claim,
loss or damage arises from the negligence or willful misconduct of Landlord or
its agents.
E-10
<PAGE> 59
EXHIBIT F
FIXED RENT EXHIBIT
eRoom Technology
Third Amendment Restatement of Lease
Rent Schedule
------------------------------------------------------------------------------------------------------------------------------------
From To $psf $ per mo. $psf $ per mo. $psf $ per mo. $psf $ per mo. $psf $ per mo. Rent
------------------------------------------------------------------------------------------------------------------------------------
4/1/99 10/31/99 $25.50 $22,342.25 $ 22,342.25
------------------------------------------------------------------------------------------------------------------------------------
11/1/99 2/29/00 $25.50 $22,342.25 $30.00 $28,260.00 $ 50,602.25
------------------------------------------------------------------------------------------------------------------------------------
3/1/00 3/31/00 $25.50 $22,342.25 $30.00 $28,260.00 $33.00 $4,458.75 $ 54,961.00
------------------------------------------------------------------------------------------------------------------------------------
4/1/00 6/30/00 $26.00 $22,780.33 $30.00 $28,260.00 $33.00 $4,358.75 $ 55,399.08
------------------------------------------------------------------------------------------------------------------------------------
7/1/00 8/31/00 $26.00 $22,780.33 $30.00 $28,260.00 $33.00 $4,358.75 $35.00 $30,085.00 $ 85,464.08
------------------------------------------------------------------------------------------------------------------------------------
9/1/00 10/31/00 $26.00 $22,780.33 $30.00 $28,260.00 $33.00 $4,358.75 $35.00 $30,065.00 $35.00 $16,359.58 $101,823.67
------------------------------------------------------------------------------------------------------------------------------------
11/1/00 3/31/01 $26.00 $22,780.33 $30.50 $28,731.00 $33.00 $4,358.75 $35.00 $30,065.00 $35.00 $16,359.58 $102,294.67
------------------------------------------------------------------------------------------------------------------------------------
4/1/01 10/31/01 $28.00 $24,532.67 $30.50 $28,731.00 $33.00 $4,358.75 $35.00 $30,065.00 $35.00 $16,359.58 $104,047.00
------------------------------------------------------------------------------------------------------------------------------------
11/1/01 3/31/02 $28.00 $24,532.67 $31.00 $29,202.00 $33.00 $4,358.75 $35.00 $30,065.00 $35.00 $16,359.58 $104,518.00
------------------------------------------------------------------------------------------------------------------------------------
4/1/02 10/31/02 $31.00 $27,161.17 $31.00 $29,202.00 $33.00 $4,358.75 $35.00 $30,065.00 $35.00 $16,359.58 $107,146.50
------------------------------------------------------------------------------------------------------------------------------------
11/1/02 10/31/03 $31.00 $27,161.17 $31.50 $29,673.00 $33.00 $4,358.75 $35.00 $30,065.00 $35.00 $16,359.58 $107,617.50
------------------------------------------------------------------------------------------------------------------------------------
11/1/03 3/31/04 $31.00 $27,161.17 $32.00 $30,144.00 $33.00 $4,358.75 $35.00 $30,065.00 $35.00 $16,359.58 $108,088.50
------------------------------------------------------------------------------------------------------------------------------------
4/1/04 10/31/04 $32.00 $28,037.33 $32.00 $30,144.00 $33.00 $4,358.75 $35.00 $30,065.00 $35.00 $16,359.58 $108,964.67
------------------------------------------------------------------------------------------------------------------------------------
11/1/04 6/30/05 $35.00 $30,665.83 $35.00 $32,970.00 $35.00 $4,622.92 $35.00 $30,065.00 $35.00 $16,359.58 $114,683.33
------------------------------------------------------------------------------------------------------------------------------------