Massachusetts-Waltham-950 Winter Street Lease - Shorenstein Management Inc. and Lionbridge Technologies Inc.
BAY COLONY CORPORATE CENTER
WALTHAM, MASSACHUSETTS
OFFICE LEASE
SHORENSTEIN MANAGEMENT, INC.,
as Trustee of SRI Two Realty Trust,
Landlord
and
LIONBRIDGE TECHNOLOGIES, INC.,
Tenant
DATED AS OF: February 13, 1997
TABLE OF CONTENTS
PARAGRAPH PAGE
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1. Premises................................................................3
2. Certain Basic Lease Terms...............................................3
3. Term; Delivery of Possession of Premises................................4
4. Condition of Premises...................................................4
5. Monthly Rent............................................................6
6. Security Deposit........................................................8
7. Additional Rent: Operating Expenses and Tax Expenses....................8
8. Use of Premises; Compliance with Law...................................12
9. Alterations and Restoration............................................14
10. Repair.................................................................15
11. Abandonment............................................................16
12. Liens..................................................................16
13. Assignment and Subletting..............................................16
14. Indemnification of Landlord............................................21
15. Insurance..............................................................22
16. Mutual Waiver of Subrogation Rights....................................23
17. Utilities..............................................................24
18. Personal Property and Other Taxes......................................26
19. Rules and Regulations..................................................26
20. Surrender; Holding Over................................................26
21. Subordination and Attornment...........................................27
22. Financing Condition....................................................28
23. Entry by Landlord......................................................28
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24. Insolvency or Bankruptcy...............................................29
25. Defaults and Remedies..................................................29
26. Damage or Destruction..................................................32
27. Eminent Domain.........................................................33
28. Landlord's Liability; Sale of Building.................................34
29. Estoppel Certificates..................................................35
30. Right of Landlord to Perform...........................................35
31. Late Charge............................................................36
32. Attorneys'Fees'Waiver of Jury Trial....................................36
33. Waiver.................................................................37
34. Notices................................................................37
35. Deleted................................................................37
36. Defined Terms and Marginal Headings....................................37
37. Time and Applicable Law................................................38
38. Successors.............................................................38
39. Entire Agreement; Modifications........................................38
40. Light and Air..........................................................38
41. Name of Building.......................................................38
42. Severability...........................................................38
43. Authority..............................................................38
44. No Offer...............................................................39
45. Real Estate Brokers....................................................39
46. Consents and Approvals.................................................39
47. Reserved Rights........................................................39
48. Financial Statements...................................................40
49. Substitution of Premises...............................................40
50. Nondisclosure of Lease Terms...........................................40
Exhibits:
A - Outline of Premises
B - Rules and Regulations
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LEASE
THIS LEASE is made as of the 13th day of February, 1997 (the "Execution
Date"), between SHORENSTEIN MANAGEMENT, INC., as Trustee of SRI Two Realty Trust
("Landlord"), and LIONBRIDGE TECHNOLOGIES, INC., a Delaware corporation
("Tenant").
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, on the terms and conditions set forth herein, the space outlined
on the attached EXHIBIT A (the "Premises"). The Premises are located on the
floor specified in Paragraph 2 below of the building located at 950 Winter
Street, Waltham, Massachusetts (the "Building"). The parcel(s) of land (the
"Land") on which the Building is located and the other improvements on the Land
(including the Building, driveways, and landscaping) are referred to herein as
the "Real Property." The Real Property is situated within Bay Colony Corporate
Center (the "Office Park").
Tenant's lease of the Premises shall include the right to use, in common
with others and subject to the other provisions of this Lease, the public
lobbies, entrances, stairs, elevators and other public portions of the Building.
All of the windows and outside walls of the Premises and any space in the
Premises used for shafts, stacks, pipes, conduits, ducts, electrical equipment
or other utilities or Building facilities are reserved solely to Landlord and
Landlord shall have rights of access through the Premises for the purpose of
operating, maintaining and repairing the same.
2. CERTAIN BASIC LEASE TERMS. As used herein, the following terms shall
have the meaning specified below:
a. Floor on which the Premises are located: Fourth
(4th) floor.
b. Lease term: Approximately four (4) years, commencing
on Substantial Completion (as defined in Paragraph
4.b. below) of the Tenant Improvements to be
constructed in the Premises as provided in Paragraph
4 (the "Commencement Date"), and ending on the last
day of the forty-eighth (48th) full calendar month
thereafter (the "Expiration Date").
c. Monthly Rent: Nine Thousand Thirty-Nine Dollars
($9,039.00).
Rent Commencement Date: The date that is the earlier
of (i) the Commencement Date, or (ii) the date that
is thirty (30) days after the Execution Date set
forth in the preamble to this Lease, which Execution
Date has been completed by Landlord to set forth the
date on which this Lease was executed by Landlord and
Tenant.
d. Security Deposit: Eighteen Thousand Seventy-Eight
Dollars ($18,078.00).
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e. Tenant's Share: 1.27%.
f. Base Year: The calendar year 1997.
Base Tax Year: The fiscal tax year ending June 30,
1997.
g. Business of Tenant: Software localization and
related business services.
h. Real estate broker(s): Shorenstein Management, Inc.
and Fallon Hines & O'Connor.
i. Tenant's Electrical Charge: Two Hundred Seventy-
Seven Dollars ($277.00) per month.
3. TERM; DELIVERY OF POSSESSION OF PREMISES.
a. Term. The term of this Lease shall commence on the
Commencement Date (as defined in Paragraph 2.b.) and, unless sooner terminated
pursuant to the terms hereof or at law, shall expire on the Expiration Date
(defined in Paragraph 2.b.). The Commencement Date shall be confirmed by the
parties following Substantial Completion of the Tenant Improvements, as provided
in Paragraph 4.
b. Delivery of Premises. The Premises shall be delivered
to Tenant upon Substantial Completion (as that term is defined in Paragraph
4.b.) of the Tenant Improvements (as that term is defined in Paragraph 4.a.) to
be constructed in the Premises by Landlord pursuant to Paragraph 4. If
Substantial Completion of the Tenant Improvements and delivery of possession of
the Premises is delayed for any reason whatsoever, this Lease shall not be void
or voidable. Except as otherwise provided herein, no delay in delivery of
possession of the Premises to Tenant shall operate to extend the term of this
Lease or amend Tenant's obligations under this Lease. In no event shall Landlord
be liable to Tenant for any delay in completion of the Tenant Improvements
caused or occasioned by strikes, lockout, labor disputes, shortages of material
or labor, fire or other casualty, acts of God or any other cause beyond the
control of Landlord.
c. Early Occupancy. If Tenant commences its occupancy of
the Premises prior to the Substantial Completion of the Tenant Improvements,
then, notwithstanding anything to the contrary in Paragraph 2.b. above, the
Commencement Date of the Lease shall be the date Tenant commenced its occupancy
of the Premises.
4. CONDITION OF PREMISES.
a. Tenant Improvements. Landlord shall have no
obligation to make or pay for any improvements or renovations in or to the
Premises or otherwise prepare the Premises for Tenant's occupancy, except as
specifically provided in this Paragraph 4. Promptly upon execution of this
Lease, Tenant shall provide to Landlord, or Landlord's architect, information
for the improvements Tenant desires Landlord to construct in the Premises in
sufficient detail to
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permit Landlord's architect to prepare construction documents for such
improvements sufficient for Landlord's contractor to obtain all necessary
governmental permits for construction of the improvements shown thereon and to
secure complete bids from qualified contractors to perform the work for such
improvements. Landlord's architect shall then promptly prepare the necessary
architectural and construction drawings (the "Plans") for such improvements.
Upon completion of the Plans, Landlord shall submit the same to Tenant for
Tenant's approval and Tenant shall approve the Plans in writing (or disapprove
citing the specific items so disapproved) within two (2) Business Days (as
defined in Paragraph 17.a. below) after receipt thereof from Landlord. Tenant
shall not disapprove any aspect of the Plans except to the extent that such
aspect does not properly reflect the information originally provided by Tenant
to Landlord. Any changes in the Plans other than changes to conform to Legal
Requirements (as defined in Paragraph 7.a.(16) below) shall be subject to
Landlord's prior written approval. The Plans finally approved by Landlord and
Tenant shall be referred to as the "Final Plans" and the work called for therein
shall be the "Tenant Improvements".
b. Construction. Landlord shall cause the work described
in the Final Plans to be commenced as soon as is reasonably possible after the
approval of the Final Plans. Landlord shall provide and cause to be installed
only those wall terminal boxes and/or floor monuments required for Tenant's
telephone or computer systems as are shown on the Final Plans. Landlord will
provide ordinary power wiring to locations shown on the Final Plans and shall
provide and cause to be installed conduits and pull strings in partition walls,
if shown on the Final Plans, as required for Tenant's telephone and computer
systems, but shall in no event provide, install, pull or hook up any other
conduits or wires, supply jacks or plugs, or provide wiring necessary for
special conditioned power to the Premises. Further, notwithstanding anything to
the contrary herein, Landlord and Tenant shall cooperate with each other to
resolve any space plan issues raised by applicable local building codes. The
Tenant Improvements shall be deemed to be "Substantially Completed" when they
have, in Landlord's reasonable judgment, been completed in accordance with the
Final Plans, subject only to correction or completion of "Punch List" items,
which items shall be limited to minor items of incomplete or defective work or
materials or mechanical maladjustments that are of such a nature that they do
not materially interfere with or impair Tenant's use of the Premises for
Tenant's business. The definition of "Substantially Completed" shall also apply
to the terms "Substantial Completion" and "Substantially Complete".
c. Changes. If Tenant requests any change, addition or
alteration in or to the Plans, whether at the layout plan stage or at any
subsequent working drawing stage ("Changes"), Landlord shall cause Landlord's
architect to prepare additional plans implementing such Change and Tenant shall
be responsible for Landlord's reasonable architectural charges in connection
therewith. As soon as practicable after the completion of such additional plans,
Landlord shall notify Tenant of the estimated cost of the Change. Within three
(3) days after receipt of such cost estimate, Tenant shall notify Landlord in
writing whether Tenant approves the Change. If Tenant approves the Change,
Landlord shall proceed with the Change. If the Change increases the cost of the
Tenant Improvements and the funds from Landlord's Allowance (as defined in
Paragraph 4.e. below) are not sufficient to pay for the Change, then Tenant
shall be liable for the additional cost, which cost shall be payable, at
Landlord's option, either prior to commencement of work on the Change or during
the course of construction. Landlord will use reasonable care in
<PAGE>
preparing the estimates, but they shall be good faith estimates only and will
not limit Tenant's obligation to pay for the actual increase in the cost of the
Tenant Improvements. If Tenant fails to approve the Change within such three (3)
day period, construction of the Tenant Improvements shall proceed as provided in
accordance with the Plans as they existed prior to the requested Change.
d. Tenant Delays. Tenant shall be responsible for, and
shall pay to Landlord, any and all costs and expenses incurred by Landlord in
connection with any delay in the commencement or completion of any Tenant
Improvements and any increase in the cost of Tenant Improvements caused by (i)
any Changes requested by Tenant in the Tenant Improvements shown on the Plans
(including any cost or delay resulting from proposed changes that are not
ultimately made), (ii) any failure by Tenant to timely pay any amounts due from
Tenant hereunder, including any additional costs resulting from any Change (it
being acknowledged that if Tenant fails to make or otherwise delays making such
payments, Landlord may stop work on the Tenant Improvements rather than incur
costs which Tenant is obligated to fund but has not yet done so and any delay
from such a work stoppage will be a Tenant Delay), (iii) the inclusion in the
Tenant Improvements of any so-called `long lead' materials (such as fabrics,
panellings, carpeting or other items that must be imported or are of unusual
character or limited availability), (iv) any delay by Tenant in providing
information required for preparation of the Plans, responding to inquiries
regarding the construction of the Tenant Improvements or in granting Tenant's
approval of materials or finishes for the Tenant Improvements or of the Plans,
or (v) any other delay requested or caused by Tenant. Each of the foregoing is
referred to herein as a "Tenant Delay".
e. Cost of Construction. Landlord shall, through a
contractor selected by Landlord, construct the Tenant Improvements as shown on
the Final Plans in compliance with this Paragraph 4 on a cost basis plus the
contractor's fee and Landlord's construction management fee. Landlord shall bear
the cost of the construction of the Tenant Improvements, limited however to a
maximum expenditure by Landlord therefor of Fifteen Thousand Eleven Dollars
($15,011.00) ("Landlord's Allowance"). Tenant shall pay to Landlord immediately
upon written demand the cost of the construction of the Tenant Improvements
(including architectural Costs and Landlord's Contractor's Charge) that exceeds
Landlord's Allowance, which demand may be for payment in advance or in
course-of-construction installments.
Tenant acknowledges that Landlord's Allowance is to be applied to Tenant
Improvements covering the entire Premises outlined in EXHIBIT A. If Tenant does
not elect to improve the entire Premises, then Landlord's Allowance shall be
adjusted on a pro-rata per rentable square foot basis to reflect the number of
square feet actually being improved. In no event may any portions of Landlord's
Allowance be applied towards the costs of Tenant's personal property or movable
furniture, signage or rental obligations.
5. MONTHLY RENT.
a. On the Rent Commencement Date (as defined in
Paragraph 4.c. above) and on or before the first day of each calendar month
thereafter through the expiration of the Lease term, Tenant shall pay to
Landlord, as monthly rent for the Premises, the Monthly Rent and Tenant's
<PAGE>
Electrical Charge specified in Paragraph 2 above. If the term of this Lease
commences on a day other than the first day of a calendar month, or terminates
on a day other than the last day of a calendar month, then the Monthly Rent and
Tenant's Electrical Charge payable for such partial month shall be appropriately
prorated on the basis of a thirty (30)-day month. Monthly Rent, Tenant's
Electrical Charge and the Additional Rent specified in Paragraph 7 shall be paid
by Tenant to Landlord, in advance, without deduction, offset, prior notice or
demand, in immediately available funds of lawful money of the United States of
America, or by good check as described below, at the office of Shorenstein
Company, L.P., at 555 California Street, 14th floor, San Francisco, California
94104, or the lockbox location designated by Landlord, or to such other person
or at such other place as Landlord may from time to time designate in writing.
Payments made by check must be drawn either on a California financial
institution or on a financial institution that is a member of the federal
reserve system. Notwithstanding the foregoing, if the date of Substantial
Completion of the Tenant Improvements is delayed as a result of a Tenant Delay,
then Tenant's obligation to pay rent for the Premises shall be accelerated by
the number of days of such delay. Further, notwithstanding the foregoing, Tenant
shall pay to Landlord with execution of this Lease an amount equal to one (1)
month's Monthly Rent hereunder, which amount shall be applied to the Monthly
Rent first due and payable hereunder.
b. All amounts payable by Tenant to Landlord under this
Lease, or otherwise payable in connection with Tenant's occupancy of the
Premises, in addition to the Monthly Rent and Tenant's Electrical Charge
hereunder and Additional Rent under Paragraph 7, shall constitute rent owed by
Tenant to Landlord hereunder.
c. Any rent not paid by Tenant to Landlord when due
(provided that the first occurrence of such a delinquency in any twelve
(12)-month period shall cause the delinquent amount to bear interest only if
Tenant fails to cure such delinquency within five (5) days of written notice
from Landlord thereof) shall bear interest from the date due to the date of
payment by Tenant at an annual rate of interest (the "Interest Rate") equal to
the lesser of (i) the maximum annual interest rate allowed by law on such due
date for business loans (not primarily for personal, family or household
purposes) not exempt from the usury law, or (ii) a rate equal to the sum of six
(6) percentage points over the six-month United States Treasury bill rate (the
"Treasury Rate") in effect from time to time during such delinquency (or if
there is no such publicly announced rate, the rate quoted by the San Francisco
Main Office of Bank of America, NT&SA, or any successor bank thereto, in pricing
ninety (90)-day commercial loans to substantial commercial borrowers. Failure by
Tenant to pay rent when due, including any interest accrued under this
subparagraph, shall constitute an Event of Default (as defined in Paragraph 25
below) giving rise to all the remedies afforded Landlord under this Lease and at
law for nonpayment of rent.
d. No security or guaranty which may now or hereafter be
furnished to Landlord for the payment of rent due hereunder or for the
performance by Tenant of the other terms of this Lease shall in any way be a bar
or defense to any of Landlord's remedies under this Lease or at law.
<PAGE>
6. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall
pay to Landlord the Security Deposit specified in Paragraph 2.d. above as
security for Tenant's performance of all of Tenant's covenants and obligations
under this Lease; provided, however, that the security Deposit is not an advance
rent deposit or an advance payment of any other kind, nor a measure of
Landlord's damages upon Tenant's default. Landlord shall not be required to
segregate the Security Deposit from its other funds and no interest shall accrue
or be payable to Tenant with respect thereto. Landlord may (but shall not be
required to) use the Security Deposit or any portion thereof to cure any Event
of Default or to compensate Landlord for any damage Landlord incurs as a result
of Tenant's failure to perform any of its covenants or obligations hereunder, it
being understood that any use of the Security Deposit shall not constitute a bar
or defense to any of Landlord's remedies under this Lease or at law. In such
event and upon written notice from Landlord to Tenant specifying the amount of
the Security Deposit so utilized by Landlord and the particular purpose for
which such amount was applied, Tenant shall immediately deposit with Landlord an
amount sufficient to return the Security Deposit to an amount equal to one
hundred percent (100%) of the amount specified in Paragraph 2.d. as the same may
have been increased by prior applications of this Paragraph 6. Tenant's failure
to make such payment to Landlord within five (5) days of Landlord's notice shall
constitute an Event of Default. If no Event of Default (or default under this
Lease that subsequently matures into an Event of Default) is outstanding at, the
expiration or termination of this Lease, Landlord shall return to Tenant the
Security Deposit or the balance thereof then hold by Landlord; provided,
however, that in no event shall any such return be construed as an admission by
Landlord that Tenant has performed all of its covenants and obligations
hereunder. No holder of a Superior Interest (as defined in Paragraph 21 below),
nor any purchaser at any judicial or private foreclosure sale of the Real
Property or any portion thereof, shall be responsible to Tenant for the Security
Deposit unless and only to the extent such holder or purchaser shall have
actually received the same.
Notwithstanding the foregoing, provided no default under this Lease by
Tenant has occurred prior thereto, Landlord shall return Nine Thousand
Thirty-Nine Dollars ($9,039.00) of the Security Deposit to Tenant upon Tenant's
written request to Landlord given any time after the first (1st) anniversary of
the Commencement Date; provided, however, if any default under this Lease
subsequently occurs, the amount required to be deposited by Landlord pursuant to
the immediately preceding paragraph shall be based on the amount originally
specified in Paragraph 2.d. and not the amount reduced by the amount so returned
by Landlord.
7. ADDITIONAL RENT: OPERATING EXPENSES AND TAX EXPENSES.
a. OPERATING EXPENSES. Tenant shall pay to Landlord at
the times hereinafter set forth, Tenant's Share, as specified in Paragraph 2.e
above, of any increase in the Operating Expenses (as defined below) incurred by
Landlord in each calendar year subsequent to the Base Year specified in
Paragraph 2.f. above, over the Operating Expenses incurred by Landlord during
the Base Year. The amounts payable under this Paragraph 7.a. and Paragraph 7.b.
below are termed "Additional Rent" herein.
The term "Operating Expenses" shall mean the total costs and expenses
incurred by Landlord in connection with the management, operation, maintenance,
repair and ownership of the Real Property (including, without limitation, costs
and expenses incurred in connection with
<PAGE>
the management, operation, maintenance, repair and ownership of other portions
of the Office Park, to the extent allocable to the Real Property), including,
without limitation, the following costs: (1) salaries, wages, bonuses and other
compensation (including hospitalization, medical, surgical, retirement plan,
pension plan, union dues, life insurance, including group life insurance,
welfare and other fringe benefits, and vacation, holidays and other paid absence
benefits) relating to employees of Landlord or its agents engaged in the
operation, repair, or maintenance of the Real Property; (2) payroll, social
security, workers' compensation, unemployment and similar taxes with respect to
such employees of Landlord or its agents, and the cost of providing disability
or other benefits imposed by law or otherwise, with respect to such employees;
(3) the cost of uniforms (including the cleaning, replacement and pressing
thereof) provided to such employees; (4) premiums and other charges incurred by
Landlord with respect to fire, other casualty, rent and liability insurance, any
other insurance as is deemed necessary or advisable in the reasonable judgment
of Landlord, or any insurance required by the holder of any Superior Interest
(as defined in Paragraph 21 below), and, after the Base Year, costs of repairing
an insured casualty to the extent of the deductible amount under the applicable
insurance policy; (5) water charges and sewer rents or fees; (6) license, permit
and inspection fees; (7) sales, use and excise taxes on goods and services
purchased by Landlord in connection with the operation, maintenance or repair of
the Real Property and Building systems and equipment; (8) telephone, telegraph,
postage, stationary supplies and other expenses incurred in connection with the
operation, maintenance, or repair of the Real Property; (9) management fees and
expenses; (10) costs of repairs to and maintenance of the Real Property,
including building systems and appurtenances thereto and normal repair and
replacement of worn-out equipment, facilities and installations, but excluding
the replacement of major building systems (except to the extent provided in (16)
and (17) below); (11) fees and expenses for janitorial, window cleaning, guard,
extermination, water treatment, rubbish removal, plumbing and other services and
inspection or service contracts for elevator, electrical, mechanical and other
building equipment and systems or as may otherwise be necessary or proper for
the operation, repair or maintenance of the Real Property; (12) costs of
supplies, tools, materials, and equipment used in connection with the operation,
maintenance or repair of the Real Property; (13) accounting, legal and other
professional fees and expenses incurred in connection with management,
operation, maintenance, repair and ownership; (14) fees and expenses for
painting the exterior or the public or common areas of the Building and the cost
of maintaining the sidewalks, landscaping and other common areas of the Real
Property; (15) costs and expenses for electricity, chilled water, air
conditioning, water for heating, gas, fuel, steam, heat, lights, power and other
energy related utilities required in connection with the operation, maintenance
and repair of the Real Property; (16) the cost of any capital improvements made
by Landlord to the Real Property or capital assets acquired by Landlord after
the Base Year in order to comply with any local, state or federal law,
ordinance, rule, regulation, code or order of any governmental entity or
insurance requirement (collectively, "Legal Requirement") with which the Real
Property was not required to comply during the Base Year, or to comply with any
amendment or other change to the enactment or interpretation of any Legal
Requirement from its enactment or interpretation during the Base Year; (17) the
Cost of any capital improvements made by Landlord to the Building or capital
assets acquired by Landlord after the Base Year for the protection of the health
and safety of the occupants of the Real Property or that are designed to reduce
other Operating Expenses; (18) the cost of furniture, draperies, carpeting,
landscaping and other customary and ordinary items of personal property
(excluding paintings, sculptures and other works of art) provided by Landlord
for use in common
<PAGE>
areas of the Building or in the Building office (to the extent that such
Building office is dedicated to the operation and management of the Real
Property); (19) any expenses and costs resulting from substitution of work,
labor, material or services in lieu of any of the above itemizations, or for any
additional work, labor, services or material resulting from compliance with any
Legal Requirement applicable to the Real Property or any parts thereof; and (20)
Building office rent or rental value. With respect to the costs of items
included in Operating Expenses under (16) and (17), such costs shall be
amortized over a reasonable period, as determined by Landlord, together with
interest on the unamortized balance at a rate per annum equal to three (3)
percentage points over the Treasury Rate charged at the time such item is
constructed or acquired, or at such higher rate as may have been paid by
Landlord on funds borrowed for the purpose of constructing or acquiring such
item, but in either case not more than the maximum rate permitted by law at the
time such item is constructed or acquired.
Operating Expenses shall not include the following: (i) depreciation on the
Building or equipment or Systems therein; (ii) debt service; (iii) rental under
any ground or underlying lease; (iv) interest (except as expressly provided in
this Paragraph 7.a.); (v) Tax Expenses (as defined in Paragraph 7.b. below);
(vi) attorneys' fees and expenses incurred in connection with lease negotiations
with prospective Building tenants; (vii) the Cost (including any amortization
thereof) of any improvements or alterations which would be properly classified
as capital expenditures according to generally accepted property management
practices (except to the extent expressly included in Operating Expenses
pursuant to this Paragraph 7.a.); (viii) the cost of decorating, improving for
tenant occupancy, painting or redecorating portions of the Building to be
demised to tenants; (ix) executive salaries; (x) advertising; or (xi) real
estate broker's or other leasing commissions.
b. TAX EXPENSES. Tenant shall pay to Landlord as
Additional Rent under this Lease, at the times hereinafter set forth, Tenant's
Share, as specified in Paragraph 2.e. above, of any increase in Tax Expenses (as
defined below) incurred by Landlord in each calendar year subsequent to the Base
Tax Year specified in Paragraph 2.f. above, over Tax Expenses incurred by
Landlord during the Base Tax Year. Notwithstanding the foregoing, if any
reassessment, reduction or recalculation of any item included in Tax Expenses
during the term results in a reduction of Tax Expenses, then for purposes of
calculating Tenant's Share of increases in Tax Expenses from and after the
calendar year in which such adjustment occurs, Tax Expenses for the Base Tax
Year shall be adjusted to reflect such reduction.
The term "Tax Expenses" shall mean all taxes, assessments (whether general
or special), excises, transit charges, housing fund assessments or other housing
charges, improvement districts, levies or fees, ordinary or extraordinary,
unforeseen as well as foreseen, of any kind, which are assessed, levied,
charged, confirmed or imposed on the Real Property, on Landlord with respect to
the Real Property, on the act of entering into leases of space in the Real
Property, on the use or occupancy of the Real Property or any part thereof, with
respect to services or utilities consumed in the use, occupancy or operation of
the Real Property, on any improvements, fixtures and equipment and other
personal property of Landlord located in the Real Property and used in
connection with the operation of the Real Property, or on or measured by the
rent payable under this Lease or in connection with the business of renting
space in the Real Property, including, without limitation, any gross income tax
or excise tax levied with respect to the receipt
<PAGE>
of such rent, by the United States of America, the Commonwealth of
Massachusetts, Middlesex County, the City of Waltham, or any political
subdivision, public corporation, district or other political or public entity or
public authority, and shall also include any other tax, fee or other excise,
however described, which may be levied or assessed in lieu of, as a substitute
(in whole or in part) for, or as an addition to, any other Tax Expense. Tax
Expenses shall also include any of the foregoing which are assessed with respect
to other portions of the Office Park, to the extent allocable to the Real
Property. Tax Expenses shall include reasonable attorneys' fees, costs and
disbursements incurred in connection with proceedings to contest, determine or
reduce Tax Expenses. If it shall not be lawful for Tenant to reimburse Landlord
for any increase in Tax Expenses as defined herein, the Monthly Rent payable to
Landlord prior to the imposition of such increases in Tax Expenses shall be
increased to net Landlord the same net Monthly Rent after imposition of such
increases in Tax Expenses as would have been received by Landlord prior to the
imposition of such increases in Tax Expenses.
Tax Expenses shall not include income, franchise, transfer, inheritance or
capital stock taxes, unless, due to a change in the method of taxation, any of
such taxes is levied or assessed against Landlord in lieu of, as a substitute
(in whole or in part) for, or as an addition to, any other charge which would
otherwise constitute a Tax Expense.
c. ADJUSTMENT FOR OCCUPANCY FACTOR. Notwithstanding any
other provision herein to the contrary, in the event the Building is not fully
occupied during any calendar year during the term after the Base Year, an
adjustment shall be made by Landlord in computing Operating Expenses for such
year so that the Operating Expenses shall be computed for such year as though
the Building had been fully occupied during such year. In addition, if any
particular work or service includible in Operating Expenses is not furnished to
a tenant who has undertaken to perform such work or service itself, Operating
Expenses shall be deemed to be increased by an amount equal to the additional
Operating Expenses which would have been incurred if Landlord had furnished such
work or service to such tenant. The parties agree that statements in this Lease
to the effect that Landlord is to perform certain of its obligations hereunder
at its own or sole cost and expense shall not be interpreted as excluding any
cost from Operating Expenses or Tax Expenses if such cost is an Operating
Expense or Tax Expense pursuant to the terms of this Lease.
d. INTENTION REGARDING EXPENSE PASS-THROUGH. It is the
intention of Landlord and Tenant that the Monthly Rent paid to Landlord
throughout the term of this Lease shall be absolutely net of all increases,
respectively, in Tax Expenses and Operating Expenses over, respectively, Tax
Expenses for the Base Tax Year and Operating Expenses for the Base Year, and the
foregoing provisions of this Paragraph 7 are intended to so provide.
e. NOTICE AND PAYMENT. On or before the first day of
each calendar year during the term hereof subsequent to the Base Year, or as
soon as practicable thereafter, Landlord shall give to Tenant notice of
Landlord's estimate of the Additional Rent, if any, payable by Tenant pursuant
to Paragraphs 7.a. and 7.b. for such calendar year subsequent to the Base Year.
On or before the first day of each month during each such subsequent calendar
year, Tenant shall pay to Landlord one-twelfth (1/12th) of the estimated
Additional Rent; provided, however, that if Landlord's notice is not given prior
to the first day of any calendar year Tenant shall continue to
<PAGE>
pay Additional Rent on the basis of the prior year's estimate until the month
after Landlord's notice is given. If at any time it appears to Landlord that the
Additional Rent payable under Paragraphs 7.a. and/or 7.b. will vary from
Landlord's estimate by more than five percent (5%), Landlord may, by written
notice to Tenant, revise its estimate for such year, and subsequent payments by
Tenant for such year shall be based upon the revised estimate. On the first
monthly payment date after any new estimate is delivered to Tenant, Tenant shall
also pay any accrued cost increases, based on such new estimate.
f. ANNUAL ACCOUNTING. Within ninety (90) days after the
close of each calendar year subsequent to the Base Year, or as soon after such
ninety (90) day period as practicable, Landlord shall deliver to Tenant a
statement of the Additional Rent payable under Paragraphs 7.a. and 7.b. for such
year and such statement shall be final and binding upon Landlord and Tenant
(except that the Tax Expenses included in such statement may be modified by any
subsequent adjustment or retroactive application of Tax Expenses affecting the
calculation of such Tax Expenses). If the annual statement shows that Tenant's
payments of Additional Rent for such calendar year pursuant to Paragraph 7.e.
above exceeded Tenant's obligations for the calendar year, Landlord shall at its
option either (1) credit the excess to the next succeeding installments of
estimated Additional Rent or (2) pay the excess to Tenant within thirty (30)
days after delivery of such statement. If the annual statement shows that
Tenant's payments of Additional Rent for such calendar year pursuant to
Paragraph 7.e. above were less than Tenant's obligation for the calendar year,
Tenant shall pay the deficiency to Landlord within ten (10) days after delivery
of such statement.
g. PRORATION FOR PARTIAL LEASE YEAR. If this Lease
terminates on a day other than the last day of a calendar year, or if Tenant's
Share changes on a day other than the first day of a calendar year, the
Additional Rent payable by Tenant pursuant to this Paragraph 7 applicable to the
calendar year in which this Lease terminates, or Tenant's Share is adjusted,
shall be prorated on the basis that the number of days from the commencement of
such calendar year to and including such termination or adjustment date bears to
three hundred sixty-five (365).
8. USE OF PREMISES; COMPLIANCE WITH LAW.
a. USE OF PREMISES. The Premises shall be used solely
for general office purposes for the business of Tenant as described in Paragraph
2.g. above and for no other use or purpose.
Tenant shall not do or suffer or permit anything to be done in or about the
Premises or the Real Property, nor bring or keep anything therein, which would
in any way subject Landlord, Landlord's agents or the holder of any Superior
Interest (as defined in Paragraph 21) to any liability, increase the premium
rate of or affect any fire, casualty, liability, rent or other insurance
relating to the Real Property or any of the contents of the Building, or cause a
cancellation of, or give rise to any defense by the insurer to any claim under,
or conflict with, any policies for such insurance. If any act or omission of
Tenant results in any such increase in premium rates, Tenant shall pay to
Landlord upon demand the amount of such increase. Tenant shall not do or suffer
or permit anything to be done in or about the Premises or the Real Property
which will in any way obstruct or interfere with the rights of other tenants or
occupants of the Building or injure or
<PAGE>
annoy them, or use or suffer or permit the Premises to be used for any immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain, suffer or
permit any nuisance in, on or about the Premises or the Real Property. Without
limiting the foregoing, no loudspeakers or other similar device which can be
heard outside the Premises shall, without the prior written approval of
Landlord, be used in or about the Premises. Tenant shall not commit or suffer to
be committed any waste in, to or about the Premises.
Tenant agrees not to employ any person, entity or contractor for any work
in the Premises (including moving Tenant's equipment and furnishings in, out or
around the Premises) whose presence may give rise to a labor or other
disturbance in the Building and, if necessary to prevent such a disturbance in a
particular situation, Landlord may require Tenant to employ union labor for the
work.
b. COMPLIANCE WITH LAW. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way conflict with
any Legal Requirement (as defined in Paragraph 7.a.(16) above) now in force or
which may hereafter be enacted. Tenant, at its sole cost and expense, shall
promptly comply with all such present and future Legal Requirements relating to
the condition, use or occupancy of the Premises, and shall perform all work to
the Premises or other portions of the Real Property required to effect such
compliance (or, at Landlord's election, Landlord may perform such work at
Tenant's cost). Notwithstanding the foregoing, however, Tenant shall not be
required to perform any structural changes to the Premises or other portions of
the Real Property unless such changes are related to or affected or triggered by
(i) Tenant's Alterations (as defined in Paragraph 9 below), (ii) Tenant's
particular use of the Premises (as opposed to Tenant's use of the Premises for
general office purposes in a normal and customary manner), (iii) Tenant's
particular employees or employment practices, or (iv) the construction of
initial improvements to the Premises, if any. The judgment of any court of
competent jurisdiction or the admission of Tenant in an action against Tenant,
whether or not Landlord is a party thereto, that Tenant has violated any Legal
Requirement shall be conclusive of that fact as between Landlord and Tenant.
Tenant shall immediately furnish Landlord with any notices received from any
insurance company or governmental agency or inspection bureau regarding any
unsafe or unlawful conditions within the Premises or the violation of any Legal
Requirement.
c. HAZARDOUS MATERIALS. Tenant shall not cause or permit
the storage, use, generation, release, handling or disposal (collectively,
"Handling") of any Hazardous Materials (as defined below), in, on, or about the
Premises or the Real Property by Tenant or any agents, employees, contractors,
licensees, subtenants, customers, guests or invitees of Tenant (collectively
with Tenant, "Tenant Parties"), except that Tenant shall be permitted to use
normal quantities of office supplies or products (such as copier fluids or
cleaning supplies) customarily used in the conduct of general business office
activities ("Common Office Chemicals"), provided that the Handling of such
Common Office Chemicals shall comply at all times with all Legal Requirements,
including Hazardous Materials Laws (as defined below). Notwithstanding anything
to the contrary contained herein, however, in no event shall Tenant permit any
usage of Common Office Chemicals in a manner that may cause the Premises or the
Real Property to be contaminated by any Hazardous Materials or in violation of
any Hazardous Materials Laws. Tenant shall immediately advise Landlord in
writing of (a) any and all enforcement, cleanup,
<PAGE>
remedial, removal, or other governmental or regulatory actions instituted,
completed, or threatened pursuant to any Hazardous Materials Laws relating to
any Hazardous Materials affecting the Premises; and (b) all claims made or
threatened by any third party against Tenant, Landlord, the Premises or the Real
Property relating to damage, contribution, cost recovery, compensation, loss, or
injury resulting from any Hazardous Materials on or about the Premises. Without
Landlord's prior written consent, Tenant shall not take any remedial action or
enter into any agreements or settlements in response to the presence of any
Hazardous Materials in, on, or about the Premises. Tenant shall be solely
responsible for and shall indemnify, defend and hold Landlord and all other
Indemnitees (as defined in Paragraph 14.b. below), harmless from and against all
Claims (as defined in Paragraph 14.b. below), arising out of or in connection
with, or otherwise relating to (i), any Handling of Hazardous Materials by any
Tenant Party or Tenant's breach of its obligations hereunder, or (ii) any
removal, cleanup, or restoration work and materials necessary to return the Real
Property or any other property of whatever nature located on the Real Property
to their condition existing prior to the Handling of Hazardous Materials in, on
or about the Premises. Tenant's obligations under this paragraph shall survive
the expiration or other termination of this Lease.
For purposes of this Lease, "Hazardous Materials" means any explosive,
radioactive materials, hazardous wastes, or hazardous substances, including
without limitation asbestos containing materials, PCB's, CFC's, or substances
defined as "hazardous substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601-9657;
the Hazardous Materials Transportation Act of 1975, 49 U.S.C. Section 1801-1812;
the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901-6987;
or any other Legal Requirement regulating, relating to, or imposing liability or
standards of conduct concerning any such materials or substances now or at any
time hereafter in effect (collectively, "Hazardous Materials Laws").
d. APPLICABILITY OF PARAGRAPH. The provisions of this
Paragraph 8 are for the benefit of Landlord, the holder of any Superior Interest
(as defined in Paragraph 21 below), and the other Indemnitees only and are not
nor shall they be construed to be for the benefit of any tenant or occupant of
the Building.
9. ALTERATIONS AND RESTORATION.
a. Tenant shall not make or permit to be made any
alterations, modifications, additions, decorations or improvements to the
Premises, or any other work whatsoever that would directly or indirectly involve
the penetration or removal (whether permanent or temporary) of, or require
access through, in, under, or above any floor, wall or ceiling, or surface or
covering thereof in the Premises (collectively, "Alterations"), except as
expressly provided in this Paragraph 9. If Tenant desires any Alteration, Tenant
must obtain Landlord's prior written approval of such Alteration.
All Alterations shall be made at Tenant's sole cost and expense (including
the expense of complying with all present and future Legal Requirements,
including those regarding asbestos, if applicable, and any other work required
to be performed in other areas within or outside the Premises by reason of the
Alterations). Landlord may elect to cause its contractor to perform the
<PAGE>
Alterations, in which case Landlord's contractor shall be entitled to receive a
fee for such work of fifteen percent (15%) of the first $100,000 of the
construction costs of such work, and the fee for any construction costs over
such amount shall be as negotiated by Tenant and Landlord. If Landlord does not
perform the work pursuant to the above, Tenant shall pay Landlord on demand
prior to or during the course of such construction an amount (the "Alteration
Operations Fee") equal to ten percent (10%) of the total hard cost of the
Alteration (and for purposes of calculating the Alteration Operations Fee, such
hard cost shall not include permit fees) as compensation to Landlord for
electrical energy consumed in connection with the work, freight elevator
operation, additional cleaning expenses, additional security services, and for
other miscellaneous costs incurred by Landlord as result of the work.
All such work shall be performed diligently and in a first-class
workmanlike manner and in accordance with plans and specifications approved by
Landlord, and shall comply with all Legal Requirements and Landlord's
construction procedures and requirements for the Building (including Landlord's
requirements relating to insurance and contractor qualifications). In no event
shall Tenant employ any person, entity or contractor to perform work in the
Premises whose presence may give rise to a labor or other disturbance in the
Building. Default by Tenant in the payment of any sums agreed to be paid by
Tenant for or in connection with an Alteration (regardless of whether such
agreement is pursuant to this Paragraph 9 or separate instrument) shall entitle
Landlord to all the same remedies as for non-payment of rent hereunder. Any
Alterations, including, without limitation, moveable partitions that are affixed
to the Premises (but excluding moveable, free standing partitions) and all
carpeting, shall at once become part of the Building and the property of
Landlord. Tenant shall give Landlord not less than five (5) days prior written
notice of the date the construction of the Alteration is to commence. Landlord
may post and record an appropriate notice of nonresponsibility with respect to
any Alteration and Tenant shall maintain any such notices posted by Landlord in
or on the Premises.
b. Landlord shall advise Tenant at the time of
Landlord's approval of any Alteration requested by Tenant whether Landlord will
require that the Alteration be removed by Tenant from the Premises at the
expiration or sooner termination of this Lease and the Premises restored by
Tenant to their condition prior to the making of the Alteration, ordinary wear
and tear excepted. The removal of the Alterations so required to be removed from
the Premises and the restoration of the Premises shall be performed by a general
contractor selected by Tenant and approved by Landlord, and Tenant shall pay the
general contractors fees and costs in connection with such work. Any separate
work letter or other agreement which is hereafter entered into between Landlord
and Tenant pertaining to Alterations shall be deemed to automatically
incorporate the terms of this Lease without the necessity for further reference
thereto.
10. REPAIR. By taking possession of the Premises, Tenant agrees
that the Premises are in good condition and repair. Tenant, at Tenant's sole
cost and expense, shall keep the Premises and every part thereof (including the
interior walls and ceilings of the Premises, those portions of the Building
systems located within and exclusively serving the Premises, and improvements
and Alterations) in good condition and repair. Tenant waives all rights to make
repairs at the expense of Landlord as provided by any Legal Requirement now or
hereafter in effect. It is specifically understood and agreed that, except as
specifically set forth in this Lease, Landlord has no obligation and has made no
promises to alter, remodel, improve, repair, decorate or paint the
<PAGE>
Premises or any part thereof, and that no representations respecting the
condition of the Premises or the Building have been made by Landlord to Tenant.
11. ABANDONMENT. Tenant shall not vacate or abandon the Premises
or any part thereof at any time during the term hereof. Tenant understands that
if Tenant leaves the Premises or any part thereof vacant, the risk of fire,
other casualty and vandalism to the Premises and the Building will be increased.
Accordingly, such action by Tenant shall constitute an Event of Default
hereunder regardless of whether Tenant continues to pay Monthly Rent, Tenant's
Electrical Charge and Additional Rent under this Lease. Upon the expiration or
earlier termination of this Lease, or if Tenant abandons, vacates or surrenders
all or any part of the Premises or is dispossessed of the Premises by process of
law, or otherwise, any movable furniture, equipment, trade fixtures, or other
personal property belonging to Tenant and left on the Premises shall at the
option of Landlord be deemed to be abandoned and, whether or not the property is
deemed abandoned, Landlord shall have the right to remove such property from the
Premises and charge Tenant for the removal and any restoration of the Premises
as provided in Paragraph 9. Landlord may charge Tenant for the storage of
Tenant's property left on the Premises at such rates as Landlord may from time
to time reasonably determine, or, Landlord may, at its option, store Tenant's
property in a public warehouse at Tenant's expense. Notwithstanding the
foregoing, neither the provisions of this Paragraph 11 nor any other provision
of this Lease shall impose upon Landlord any obligation to care for or preserve
any of Tenant's property left upon the Premises, and Tenant hereby waives and
releases Landlord from any claim or liability in connection with the removal of
such property from the Premises and the storage thereof. Landlord's action or
inaction with regard to the provisions of this Paragraph 11 shall not be
construed as a waiver of Landlord's right to require Tenant to remove its
property, restore any damage to the Premises and the Building caused by such
removal, and make any restoration required pursuant to Paragraph 9 above.
12. LIENS. Tenant shall not permit any mechanic's, materialman's
or other liens arising out of work performed at the Premises by or on behalf of
Tenant to be filed against the fee of the Real Property nor against Tenant's
interest in the Premises. Landlord shall have the right to post and keep posted
on the Premises any notices which it deems necessary for protection from such
liens. If any such liens are filed, Landlord may, upon ten (10) days' written
notice to Tenant, without waiving its rights based on such breach by Tenant and
without releasing Tenant from any obligations hereunder, pay and satisfy the
same and in such event the sums so paid by Landlord shall be due and payable by
Tenant immediately without notice of demand, with interest from the date paid by
Landlord through the date Tenant pays Landlord, at the Interest Rate. Tenant
agrees to indemnify, defend and hold Landlord and the other Indemnitees (as
defined in Paragraph 14.b. below) harmless from and against any Claims (as
defined in Paragraph 14.b. below) for mechanics', materialmen's or other liens
in connection with any Alterations, repairs or any work performed, materials
furnished or obligations incurred by or for Tenant.
13. ASSIGNMENT AND SUBLETTING.
a. LANDLORD'S CONSENT. Landlord's and Tenant's agreement
with regard to Tenant's right to transfer all or part of its interest in the
Premises is as expressly set forth in this Paragraph
<PAGE>
13. Tenant agrees that, except upon Landlord's prior written consent, which
consent shall not (subject to Landlord's rights under Paragraph 13.d. below) be
unreasonably withheld, neither this Lease nor all or any part of the leasehold
interest created hereby shall, directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, be assigned, mortgaged,
pledged, encumbered or otherwise transferred by Tenant or Tenant's legal
representatives or successors in interest (collectively an "assignment") and
neither the Premises nor any part thereof shall be sublet or be used or occupied
for any purpose by anyone other than Tenant (collectively, a "sublease"). Any
assignment or subletting without Landlord's prior written consent shall, at
Landlord's option, be voice and shall constitute an Event of Default entitling
Landlord to terminate this Lease and to exercise all other remedies available to
Landlord under this Lease and at law.
The parties hereto agree and acknowledge that, among other circumstances
for which Landlord may reasonably withhold its consent to an assignment or
sublease, it shall be reasonable for Landlord to withhold its Consent where: (i)
the assignment or subletting would increase the operating costs for the Building
or the burden on the Building services, or generate additional foot traffic,
elevator usage or security concerns in the Building, or create an increased
probability of the comfort and/or safety of Landlord and other tenants in the
Building being compromised or reduced, (ii) the space will be used for a school
or training facility, an entertainment, sports or recreation facility, retail
sales to the public (unless Tenant's permitted use is retail sales), a personnel
or employment agency, an office or facility of any governmental or
quasi-governmental agency or authority, a place of public assembly (including
without limitation a meeting center, theater or public forum), any use by or
affiliation with a foreign government (including without limitation an embassy
or consulate or similar office, or a facility for the provision of social,
welfare or clinical health services or sleeping accommodations (whether
temporary, daytime or overnight); (iii) the proposed assignee or subtenant is a
current tenant of the Office Park or a prospective tenant of the Office Park;
(iv) Landlord in good faith disapproves of the opposed assignee or subtenant's
reputation or creditworthiness, (v) Landlord determines that the character of
the business that would be conducted by the proposed assignee or subtenant at
the Premises, or the manner of conducting such business, would be inconsistent
with the character of the Building as a first-class office building; (vi) the
proposed assignee or subtenant is an entity or related to an entity who has
instituted litigation or asserted a claim against Landlord or any affiliate of
Landlord, or against whom Landlord or any affiliate of Landlord has instituted
litigation or asserted a claim; (vii) the assignment or subletting may conflict
with any exclusive uses granted to other tenants of the Real Property or the
Office Park, or with the terms of any easement, covenant, condition or
restriction, or other agreement affecting the Real Property or the Office Park;
(viii) the assignment or subletting would involve a change in use from that
expressly permitted under this Lease; or (ix) Landlord in good faith determines
that the proposed assignee may be unable to perform all of Tenant's obligations
under this Lease or the proposed subtenant may be unable to perform all of its
obligations under the Proposed Sublease. Landlord's foregoing rights and options
shall continue throughout the entire term of this Lease.
For purposes of this Paragraph 13, the following events shall be deemed an
assignment or sublease, as appropriate: (i) the issuance of equity interests
(whether stock, partnership interests or otherwise) in Tenant or any subtenant
or assignee, or any entity controlling any of them, to
<PAGE>
any person or group of related persons, in a single transaction or a series of
related or unrelated transactions, such that, following such issuance, such
person or group shall have Control (as defined below) of Tenant or any subtenant
or assignee; (ii) a transfer of Control of Tenant or any subtenant or assignee,
or any entity controlling any of them, in a single transaction or a series of
related or unrelated transactions (including, without limitation, by
consolidation, merger, acquisition or reorganization), except that the transfer
of outstanding capital stock or other listed equity interests by persons or
parties other than "insiders" within the meaning of the Securities Exchange Act
of 1934, as amended, through the "over-the-counter" market or any recognized
national or international securities exchange, shall not be included in
determining whether Control has been transferred; (iii) a reduction of Tenant's
assets to the point that this Lease is substantially Tenant's only asset; (iv)
change or conversion in the form of entity of Tenant, any subtenant or assignee,
or any entity controlling any of them, which has the effect of limiting the
liability of any of the partners, members or other owners of such entity; or (v)
the agreement by a third party to assume, take over, or reimburse Tenant for,
any or all of Tenant's obligations under this Lease, in order to induce Tenant
to lease space with such third party. "Control" shall mean direct or indirect
ownership of 50% or more of all of the voting stock of a corporation or 50% or
more of the legal or equitable interest in any other business entity, or the
power to direct the operations of any entity (by equity ownership, contract or
otherwise).
If this Lease is assigned, whether or not in violation of the terms of this
Lease, Landlord may collect rent from the assignee. If the Premises or any part
thereof is sublet, Landlord may, upon an Event of Default by Tenant hereunder,
collect rent from the subtenant. In either event, Landlord may apply the amount
collected from the assignee or subtenant to Tenant's monetary obligations
hereunder.
The consent by Landlord to an assignment or subletting hereunder shall not
relieve Tenant or any assignee or subtenant from obtaining Landlord's express
prior written consent to any other or further assignment or subletting. Neither
an assignment or subletting nor the collection of rent by Landlord from any
person other than Tenant, nor the application of any such rent as provided in
this Paragraph 13.a. shall be deemed a waiver of any of the provisions of this
Paragraph 13.a. or release Tenant from its obligation to comply with the
provisions of this Lease and Tenant shall remain fully and primarily liable for
all of Tenant's obligations under this Lease. If Landlord approves of an
assignment or subletting hereunder and this Lease contains any renewal options,
expansion options, rights of first refusal, rights of first negotiation or any
other rights or options pertaining to additional specs in the Building, such
rights and/or options shall not run to the subtenant or assignee, it being
agreed by the parties hereto that any such rights and options are personal to
the Tenant originally named herein and may not be transferred.
b. PROCESSING EXPENSES. Tenant shall pay to Landlord, as
Landlord's cost of processing each proposed assignment or subletting, an amount
equal to the sum of (i) Landlord's reasonable attorneys' and other professional
fees, plus (ii) the sum of $750.00 for the cost of Landlord's administrative,
accounting and clerical time (collectively, "Processing Costs"), and the amount
of all direct and indirect costs and expenses reasonably incurred by Landlord
arising from the assignee or subleases taking occupancy of the subject space
(including, without limitation, costs of freight elevator operation for moving
of furnishings and trade fixtures, security service, janitorial and cleaning,
service, and rubbish removal service). Notwithstanding
<PAGE>
anything to the contrary herein, Landlord shall not be required to process any
request for Landlord's consent to an assignment or subletting until Tenant has
paid to Landlord the amount of Landlord's estimate of the Processing Costs and
all other direct and indirect costs and expenses of Landlord and its agents
arising from the assignee or subtenant taking occupancy.
c. CONSIDERATION TO LANDLORD. In the event of any
assignment or sublease, whether or not requiring Landlord's consent, Landlord
shall be entitled to receive, as additional rent hereunder, fifty percent (50%)
of any consideration (including, without limitation, payment for leasehold
improvements and any "Leasehold Profit" as defined below) paid by the assignee
or subtenant for the assignment or sublease and, in the case of a sublease,
fifty percent (50%) of the excess of the amount of rent paid for the sublet
space by the subtenant over the amount of Monthly Rent and Tenant's Electrical
Charge under Paragraph 5 above and Additional Rent under Paragraph 7 above
attributable to the sublet space for the corresponding month. To effect the
foregoing, Tenant shall deduct from the monthly amounts received by Tenant from
the subtenant or assignee as rent or consideration the Monthly Rent, Tenant's
Electrical Charge and Additional Rent payable by Tenant to Landlord for the
subject space, and fifty percent (50%) of the then remaining sum shall be paid
promptly to Landlord. Upon Landlord's request, Tenant shall assign to Landlord
all amounts to be paid to Tenant by any such subtenant or assignee and that
belong to Landlord and shall direct such subtenant or assignee to pay the same
directly to Landlord. "Leasehold Profit" shall be the value allocated to the
leasehold. between the parties to the assignment or sublease, but in no event
less than the excess of the present value of the fair market rent of the
Premises for the remaining term of this Lease after such assignment or sublease,
over the Monthly Rent, Tenant's Electrical Charge and Additional Rent payable
hereunder for such remaining term, as reasonably determined by Landlord.
d. PROCEDURES. If Tenant desires to assign this Lease or
any interest therein or sublet all or part of the Premises, Tenant shall give
Landlord written notice thereof and the terms Proposed (the "Sublease Notice"),
which Sublease Notice, in the case of a proposed sublease, shall designate the
space proposed to be sublet. Landlord shall have the prior right and option (to
be exercised by written notice to Tenant given within thirty (30) days after
receipt of Tenant's notice) (i) to sublet from Tenant any portion of the
Premises proposed by Tenant to be sublet, for the term for which such portion is
proposed to be sublet, but at the lesser of the proposed sublease rent or the
same rent (including Additional Rent as provided for in Paragraph 7 above) as
Tenant is required to pay to Landlord under this Lease for the same space,
Computed on a pro rata square footage basis, and during the term of such
sublease Tenant shall be released of its obligations under this Lease with
regard to the subject space, (ii) to terminate this Lease as it pertains to the
portion of the Premises so proposed by Tenant to be Sublet, or (iii) to approve
Tenant's proposal to sublet conditional upon Landlord's subsequent written
approval of the Specific sublease obtained by Tenant and the specific subtenant
named therein. If Landlord exercises its option in (i) above, then Landlord may,
at Landlord's sole cost, construct improvements in the subject space and, long
as the improvements are suitable for general office purposes, Landlord shall
have no obligation to restore the subject space to its original condition
following the termination of the sublease. If Landlord exercises its option
described in (iii) above, then Tenant shall have three (3) months thereafter to
submit to Landlord, for Landlord's written approval Tenant's proposed sublease
agreement (in which the proposed subtenant shall be named, and which agreement
shall otherwise meet the requirements of Paragraph 13.e.
<PAGE>
below), together with a current financial statement of such proposed subtenant
and any other information reasonably requested by Landlord. If Tenant fails to
submit the specific sublease and other required information within such time, or
if the terms of the specific sublease submitted by Tenant vary from the terms
set forth in the Sublease Notice approved by Landlord pursuant to (iii) above,
then Tenant shall be required to submit a new Sublease Notice for Landlord's
evaluation pursuant to the procedures set forth in this paragraph. If Landlord
fails to exercise any such option to sublet or to terminate, this shall not be
construed as or constitute a waiver of any of the provisions of Paragraphs
13.a., b., c. or d. herein. If Landlord exercises any option to sublet or to
terminate, any costs of demising the portion of the Premises affected by such
subleasing or termination shall be borne by Tenant. In addition, Landlord shall
have no liability for any real estate brokerage commission(s) or with respect to
any of the costs and expenses that Tenant may have incurred in connection with
its proposed subletting, and Tenant agrees to indemnify, defend and hold
Landlord and all other Indemnitees harmless from and against any and all Claims
(as defined in Paragraph 14.b. below), including, without limitation, claims for
commissions, arising from such proposed subletting. Landlord's foregoing rights
and options shall continue throughout the entire term of this Lease. For
purposes of this Paragraph 13.d., a proposed assignment of this Lease in whole
or in part shall be deemed a proposed subletting of such space.
e. DOCUMENTATION. No permitted assignment or subletting
by Tenant shall be effective until there has been delivered to Landlord a fully
executed counterpart of the assignment or sublease which expressly provides that
(i) the assignee or subtenant may not further assign or sublet the assigned or
sublet space without Landlord's prior written consent (which, in the case of a
further assignment proposed by an assignee, shall not be unreasonably withheld,
subject to Landlord's rights under the provisions of this Paragraph 13), (ii)
the assignee or subtenant will comply with all of the provisions of this Lease,
and Landlord may enforce the Lease provisions directly against such assignee or
subtenant, (iii) in the case of an assignment, the assignee assumes all of
Tenant's obligations under this Lease arising on or after the date of the
assignment, and (iv) in the case of a sublease, the subtenant agrees to be and
remain jointly and severally liable with Tenant for the payment of rent
pertaining to the sublet space in the amount set forth in the sublease, and for
the performance of all of the terms and provisions of this Lease. In addition to
the foregoing, no sublease by Tenant shall be effective until there has been
delivered to Landlord a fully executed counterpart of Landlord's consent to
sublease form. The failure or refusal of a subtenant or assignee to execute any
such instrument shall not release or discharge the subtenant or assignee from
its liability as set forth above. Notwithstanding the foregoing, however, no
subtenant or assignee shall be permitted to occupy the Premises unless and until
such subtenant or assignee provides Landlord with certificates evidencing that
such subtenant or assignee is carrying all insurance coverage required of such
subtenant or assignee under this Lease.
f. NO MERGER. Without limiting any of the provisions of
this Paragraph 13, if Tenant has entered into any subleases of any portion of
the Premises, the voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation by Landlord and Tenant, shall not work a merger, and shall,
at the option of Landlord, terminate all or any existing subleases or
subtenancies or, at the option of Landlord, operate as an assignment to Landlord
of any or all such subleases or subtenancies. If Landlord does elect that such
surrender or cancellation operate
<PAGE>
as an assignment of such subleases or subtenancies, Landlord shall in no way be
liable for any previous act or omission by Tenant under the subleases or for the
return of any deposit(s) under the subleases that have not been actually
delivered to Landlord, nor shall Landlord be bound by any sublease
modifications) executed without Landlord's consent or for any advance rental
payment by the subtenant in excess of one month's rent.
g. AFFILIATES. Notwithstanding anything to the contrary
in Paragraphs 13.a. and 13.d., but subject to Paragraphs 13.e. and 13.f., Tenant
may assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent, to any partnership, corporation or other entity which
controls, is controlled by, or is under common control with Tenant or Tenant's
parent (control being defined for such purposes as ownership of at least 50% of
the equity interests in, or the power to direct the management of, the relevant
entity) or to any partnership, corporation or other entity resulting from a
merger or consolidation with Tenant or Tenant's parent, or to any person or
entity which acquires substantially all the assets of Tenant as a going concern
(collectively, an "Affiliate"), provided that (i) Landlord receives prior
written notice of an assignment or subletting, (ii) the Affiliate's net worth is
not less than Tenant's net worth immediately prior to the assignment or
subletting, (iii) the Affiliate has proven experience in the operation of a
first-class business of a type consistent with the use of the Building as a
first-class office Building, (iv) the Affiliate remains an Affiliate for the
duration of the subletting or the balance of the term in the event of an
assignment, (v) the Affiliate assumes (in the event of an assignment) in writing
all of Tenant's obligations under this Lease and (vi) Landlord receives a fully
executed copy of an assignment or sublease agreement between Tenant and the
Affiliate.
14. INDEMNIFICATION OF LANDLORD.
a. Landlord and the holders of any Superior Interests
(as defined in Paragraph 21 below) shall not be liable to Tenant and Tenant
hereby waives all claims against such parties for any loss, injury or other
damage to person or property in or about the Premises, the Real Property or the
Office Park from any cause whatsoever, including without limitation, water
leakage of any character from the roof, walls, basement, fire sprinklers,
appliances, air conditioning, plumbing or other portion of the Premises, the
Real Property or the Office Park, or gas, fire, explosion, falling plaster,
steam, electricity, or any malfunction within the Premises, the Real Property or
the Office Park, or acts of other tenants of the Building; provided, however,
that the foregoing waiver shall be inapplicable to any loss, injury or damage
resulting directly from Landlord's gross negligence or willful misconduct.
Tenant acknowledges that from time to time throughout the term of this Lease,
construction work may be performed in and about the Building, the Real Property
or the Office Park by Landlord, contractors of Landlord, or other tenants or
their contractors, and that such construction work may result in noise and
disruption to Tenant's business. In addition to and without limiting the
foregoing waiver or any other provision of this Lease, Tenant agrees that
Landlord shall not be liable for, and Tenant expressly waives and releases
Landlord and the other Indemnitees (as defined in Paragraph 14.b. below) from
any Claims (as defined in Paragraph 14.b. below), including without limitation,
any and all consequential damages or interruption or loss of business, income or
profits, or claims of constructive eviction, arising or alleged to be arising as
a result of any such construction activity.
<PAGE>
b. Tenant shall hold Landlord and the holders of any
Superior Interest, and the constituent shareholders, partners or other owners
thereof, and all of their agents, contractors, servants, officers, directors,
employees and licensees (collectively with Landlord, the "Indemnitees") harmless
from and indemnify the Indemnitees against any and all claims, liabilities,
damages, costs and expenses, including reasonable attorneys' fees and costs
incurred in defending against the same (collectively, "Claims"), to the extent
arising from (a) the acts or omissions of Tenant or any other Tenant Parties (as
defined in Paragraph 8.C. above) in, on or about the Real Property or Office
Park, or (b) any construction or other work undertaken by or on behalf of Tenant
in, on or about the Premises, whether prior to or during the term of this Lease,
or (c) any breach or Event of Default under this Lease by Tenant, or (d) any
accident, injury or damage, howsoever and by whomsoever caused, to any person or
property, occurring in, on or about the Premises; except to the extent such
Claims are caused directly by the gross negligence or willful Misconduct of
Landlord or its authorized representatives. In case any action or proceeding be
brought against any of the Indemnitees by reason of any such Claim, Tenant, upon
notice from Landlord, covenants to resist and defend at Tenant's sole expense
such action or proceeding by counsel reasonably satisfactory to Landlord. The
provisions of this Paragraph 14.b. shall survive the expiration or earlier
termination of this Lease with respect to any injury, illness, death or damage
occurring prior to such expiration or termination.
15. INSURANCE.
a. TENANT'S INSURANCE. Tenant shall, at Tenant's
expense, maintain during the terms of this Lease (and, if Tenant occupies or
conducts activities in or about the Premises prior to or after the term hereof,
then also during such pre-tem or post-term period); (i) commercial general
liability insurance including contractual liability coverage, with minimum
coverages of $3,000,000 per occurrence combined single limit for bodily injury
and property damage, $1,000,000 for products-completed operations coverage,
100,000 fire legal liability, $1,000,000 for personal and advertising injury
(which coverage shall not be subject to the contractual liability exclusion),
with a $3,000,000 general aggregate limit, for injuries to, or illness or death
of, persons and damage to property occurring in or about the Premises or
otherwise resulting from Tenant's operations in the Building, (ii) property
insurance protecting Tenant against loss or damage by fire and such other risks
are insurable under the available standard forms of "all risk" insurance
policies (excluding earthquake and flood but including water damage), covering
Tenant's personal property and trade fixtures in or about the Premises or the
Real Property, and any improvements and/or Alterations in the Premises, for the
full replacement value thereof without deduction for depreciation; (iii)
workers' compensation insurance in statutory limits; (iv) at least three months'
coverage for loss of business income and continuing expenses, providing
protection against any peril included within the classification "all risk,"
excluding earthquake and flood but including water damage; and (v) if Tenant
operates owned, leased or non-owned vehicles on the Real Property, comprehensive
automobile liability insurance with a minimum coverage of $1,000,000 per
occurrence, combined single limit. The above described policies shall protect
Tenant, as named insured, and Landlord and all the other Indemnitees and any
other parties designated by Landlord, as additional insureds; shall insure
Landlord's and such other parties' contingent liability with regard to acts or
omissions of Tenant; shall specifically include all liability assumed by Tenant
under this Lease (provided, however, that such contractual liability coverage
shall not limit or be deemed to satisfy Tenant's indemnity
<PAGE>
obligations under this Lease); and, if subject to deductibles, shall provide for
deductible amounts not in excess of those approved in advance in writing by
Landlord, which approval shall not be unreasonably withhold. Landlord reserves
the right to increase the foregoing amount of liability coverage from time to
time as Landlord determines is required to adequately protect Landlord and the
other parties designated by Landlord from the matters insured thereby (provided,
however, that Landlord makes no representation that the limits of liability
required hereunder from time to time shall be adequate to protect Tenant), and
to require that Tenant cause any of its contractors, vendors, movers or other
parties conducting activities in or about or occupying the Premises to obtain
and maintain insurance as determined by Landlord and as to which Landlord and
such other parties designated by Landlord shall be additional insureds.
b. POLICY FORM. Each insurance policy required pursuant
to Paragraph 15.a. above shall be issued by an insurance company licensed in the
Commonwealth of Massachusetts and with a general policyholders' rating of "A" or
better and a financial size ranking of "Class VIII" or higher in the most recent
edition of Best's Insurance Guide. Each insurance policy, other than Tenant's
workers' compensation insurance, shall (i) provide that it may not be materially
changed, cancelled or allowed to lapse unless thirty (30) days' prior written
notice to Landlord and any other insureds designated by Landlord is first given,
(ii) provide that no act or omission of Tenant shall affect or limit the
obligations of the insurer with respect to any other insured, (iii) include all
waiver of subrogation rights endorsements necessary to effect the provisions of
Paragraph 16 below, and (iv) provide that the policy and the coverage provided
shall be primary, that Landlord, although an additional insured, shall
nevertheless be entitled to recovery under such policy for any damage to
Landlord or the other Indemnitees by reason of acts or Omissions of Tenant, and
that any coverage carried by Landlord shall be noncontributory with respect to
policies carried by Tenant. Each such insurance policy or a certificate thereof
shall be delivered to Landlord by Tenant on or before the effective date of such
policy and thereafter Tenant shall deliver to Landlord renewal policies or
certificates at least thirty (30) days prior to the expiration dates of expiring
policies. If Tenant fails to procure such insurance or to deliver such policies
or certificates as required by the preceding sentence, Landlord may, at its
option, procure the same for Tenant's account, and the cost thereof shall be
paid to Landlord by Tenant upon demand. Landlord may at any time, and from time
to time, upon reasonable prior notice to Tenant, inspect and/or copy any and all
Insurance policies required by this Lease.
c. Nothing in this Paragraph 15 shall be construed as
creating or implying the existence of (i) any ownership by Tenant of any
fixtures, additions, Alterations, or improvements in or to the Premises or (ii)
any right on Tenant's part to make any addition, Alteration or improvement in or
to the Premises.
16. MUTUAL WAIVER OF SUBROGATION RIGHTS. Each party hereto hereby
releases the other respective party and, in the case of Tenant as the releasing
party, the other Indemnities, and the respective partners, shareholders, agents,
employees, officers, directors and authorized representatives of such released
party, from any claims such releasing party may have for damage to the Building,
the Premises or any of such releasing party's fixtures, personal property,
improvements and alterations in or about the Premises, the Building or the Real
Property that is caused by or results from risks insured against under any fire
and extended coverage insurance policies actually carried by such releasing
party or deemed to be carried by such releasing party;
<PAGE>
provided, however, that such waiver shall be limited to the extent of the net
insurance proceeds payable by the relevant insurance company with respect to
such loss or damage (or in the case of deemed coverage, the net proceeds that
would have been payable). For purposes of this Paragraph 16, Tenant shall be
deemed to be carrying any of the insurance policies required pursuant to
Paragraph 15 but not actually carried by Tenant, and Landlord shall be deemed to
carry standard fire and extended coverage policies on the Real Property. Each
party hereto shall cause each such fire and extended coverage insurance policy
obtained by it to provide that the insurance company waives all rights of
recovery by way of subrogation against the other respective party and the other
released parties in connection with any matter covered by such policy.
17. UTILITIES.
a. BASIC SERVICES. Landlord shall furnish the following
utilities and services ("Basic Services") for the Premises: (i) during the hours
of 8 A.M. to 6 P.M. ("Business Hours") Monday through Friday (except public
holidays) ("Business Days"), electricity for Building standard lighting and
power suitable for the use of the Premises for ordinary general office purposes,
(ii) during Business Hours on Business Days, heat and air conditioning required
in Landlord's judgment for the comfortable use and occupancy of the Premises for
ordinary general office purposes, (iii) unheated water for the restroom(s) and
drinking fountain(s) in the public areas serving the Premises, (iv) elevator
service to the floor(s) of the Premises by nonattended automatic elevators for
general office pedestrian usage, and (v) on Business Days, janitorial services
limited to emptying and removal of general office refuse, light vacuuming as
needed and window washing as determined by Landlord. Notwithstanding the
foregoing, however, Tenant may use water, heat, air conditioning, electric
current, elevator and janitorial service in excess of that provided in Basic
Services ("Excess Services," which shall include without limitation any power
usage other than through existing standard 110 volt AC outlets; electricity
and/or water consumed by Tenant in connection with any dedicated or supplemental
heating, ventilating and/or air conditioning, computer power, telecommunications
and/or other special units or systems of Tenant, chilled, heated or condenser
water; or water used for any purpose other than ordinary drinking and lavatory
purposes), provided that the Excess Services desired by Tenant are reasonably
available to Landlord and to the Premises (it being understood that In no event
shall Landlord be obligated to make available to the Premises more than the pro
rate share of the capacity of any Excess Service available to the Building or
the applicable floor of the Building, as the case may be), and provided further
that Tenant complies with the procedures established by Landlord from time to
time for requesting and paying for such Excess Services and with all other
provisions of this Paragraph 17. Landlord reserves the right to install in the
Premises or the Real Property electric current and/or water meters (including,
without limitation, any additional wiring, conduit or panel required therefor)
to measure the electric current or water consumed by Tenant or to cause the
usage to be measured by other reasonable methods (e.g. by temporary "check"
meters or by survey).
b. PAYMENT FOR UTILITIES AND SERVICES.The cost of Basic
Services shall be included in Operating Expenses. In addition, Tenant shall pay
to Landlord upon demand (i) the cost, at Landlord's prevailing rate, of any
Excess Services used by Tenant, (ii) the cost of installing, operating,
maintaining or repairing any meter or other device used to measure
<PAGE>
Tenant's consumption of utilities, (iii) the cost of installing, operating,
maintaining or repairing any Temperature Balance Equipment (as defined in
Paragraph 17.c. below) for the Premises and/or any equipment required in
connection with any Excess Services requested by Tenant, and (iv) any Cost
otherwise incurred by Landlord in keeping account of or determining any Excess
Services used by Tenant. Landlord's failure to bill Tenant for any of the
foregoing shall not waive Landlord's right to bill Tenant for the same at a
later time.
c. TEMPERATURE BALANCE. If the temperature otherwise
maintained in any portion of the Premises by the heating, air conditioning or
ventilation system is affected as a result of (i) the type or quantity of any
lights, machines or equipment (including without limitation typical office
equipment) used by Tenant in the Premises, (ii) the occupancy of such portion of
the Premises by more than one person per two hundred (200) square feet of
rentable area therein, (iii) an electrical load for lighting or power in excess
of the limits specified in Paragraph 17.d. below, or (iv) any rearrangement of
partitioning or other improvements, then at Tenant's sole cost, Landlord may
install any equipment, or modify any existing equipment (including the standard
air conditioning equipment) Landlord deems necessary to restore the temperature
balance (such new equipment or modifications to existing equipment termed herein
"Temperature Balance Equipment"). Tenant agrees to keep closed, when necessary,
draperies which, because of the sun's position, must be closed to provide for
the efficient operation of the air conditioning system, and Tenant agrees to
cooperate with Landlord and to abide by the regulations and requirements which
Landlord may prescribe for the proper functioning and protection of the heating,
ventilating and air conditioning system. Landlord makes no representation to
Tenant regarding the adequacy or fitness of the heating, air conditioning or
ventilation equipment in the Building to maintain temperatures that may be
required for, or because of, any computer or communications rooms, machine
rooms, conference rooms or other areas of high concentration of personnel or
electrical usage, or any other uses other than or in excess of the fractional
horsepower normally required for office equipment, and Landlord shall have no
liability for loss or damage suffered by Tenant or others in connection
therewith.
d. UTILITY CONNECTIONS. Tenant shall not connect or use
any apparatus or device in the Premises (i) using current in excess of 110
volts, or (ii) which would cause Tenant's electrical demand load to exceed 1.0
watts per rentable square foot for overhead lighting or 2.0 watts per rentable
square foot for convenience outlets, or (iii) which would exceed the capacity of
the existing panel or transformer serving the Premises. Tenant shall not connect
with electric current (except through existing outlets in the Premises or such
additional outlets as may be installed in the Premises as part of initial
improvements or Alterations approved by Landlord), or water pipes, any apparatus
or device for the purpose of using electrical current or water.
Landlord will not permit additional coring of the floor of the Premises in
order to install now electric outlets in the Premises unless Landlord is
satisfied, on the basis of such information to be supplied by Tenant at Tenant's
expense, that coring of the floor in order to install such additional outlets
will not weaken the structure of the floor.
e. INTERRUPTION OF SERVICES. Landlord's obligation to
provide utilities and services for the Premises are subject to the Rules and
Regulations of the Building, applicable Legal Requirements (including the rules
or actions of the public utility company furnishing
<PAGE>
the utility or service), and shutdowns for maintenance and repairs, for security
purposes, or due to strikes, lockouts, labor disputes, fire or other casualty,
acts of God, or other causes beyond the control of Landlord. In the event of an
interruption in, or failure or inability to provide any service or utility for
the Premises for any reason, such interruption, failure or inability shall not
constitute an eviction of Tenant, constructive or otherwise, or impose upon
Landlord any liability whatsoever, including, but not limited to, liability for
consequential damages or loss of business by Tenant. Tenant hereby waives the
provisions of any applicable existing or future Legal Requirement permitting the
termination of this Lease due to such interruption, failure or inability.
f. GOVERNMENTAL CONTROLS. In the event any governmental
authority having jurisdiction over the Office Park, the Real Property or the
Building promulgates or revises any Legal Requirement or building, fire or other
code or imposes mandatory or voluntary controls or guidelines on Landlord or the
Office Park, the Real Property or the Building relating to the use or
conservation of energy or utilities or the reduction of automobile or other
emissions (collectively "Controls") or in the event Landlord is required or
elects to make alterations to the Office Park, the Real Property or the Building
in order to comply with such mandatory or voluntary Controls, Landlord may, in
its sole discretion, comply with such Controls or make such alterations to the
Office Park, the Real Property or the Building related thereto. Such compliance
and the making of such alterations shall not Constitute an eviction of Tenant,
constructive or otherwise, or impose upon Landlord any liability whatsoever,
including, but not limited to, liability for consequential damages or loss of
business by Tenant.
18. PERSONAL PROPERTY AND OTHER TAXES. Tenant shall pay, at least
ten (10) days before delinquency, any and all taxes, fees, charges or other
governmental impositions levied or assessed against Landlord or Tenant (a) upon
Tenant's equipment, furniture, fixtures, improvements and other personal
property (including carpeting installed by Tenant) located in the Premises, (b)
by virtue of any Alterations made by Tenant to the Premises, (c) which is an
occupancy tax or tax in lieu thereof related to Tenant's occupancy of the
Premises, and (d) upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises. If any
such fee, charge or other governmental imposition is paid by Landlord, Tenant
shall reimburse Landlord for Landlord's payment upon demand.
19. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations set forth on Exhibit B attached hereto, as such rules and
regulations may be modified or amended by Landlord from time to time (the "Rules
and Regulations"). Landlord shall not be responsible to Tenant for the
nonperformance or noncompliance by any other tenant or occupant of the Building
of or with any of the Rules and Regulations.
20. SURRENDER; HOLDING OVER.
a. SURRENDER. Upon the expiration or other termination
of this Lease, Tenant shall surrender the Premises to Landlord vacant and
broom-clean, with all improvements and Alterations (except as provided below) in
their original condition, except for reasonable wear and tear, damage from
casualty or condemnation and any changes resulting from approved Alterations;
provided, however, that prior to the expiration or termination of this Lease
Tenant
<PAGE>
shall remove from the Premises any Alterations that Tenant is required by
Landlord to remove under the provisions of this Lease, and all of Tenant's
personal property and trade fixtures, and, at Landlord's sole election, any
other improvements, whether installed by Landlord or Tenant, that are of a type
or quantity that would not be installed by or for a typical tenant using space
for general office purposes, or are otherwise nonstandard. If such removal is
not completed at the expiration or other termination of this Lease, Landlord may
remove the same at Tenant's expense. Any damage to the Premises or the Building
caused by such removal shall be repaired promptly by Tenant (including the
patching or repairing of ceilings and walls) or, if Tenant fails to do so,
Landlord may do so at Tenant's expense. The removal of Alterations from the
Premises shall be governed by Paragraph 9 above. Tenant's obligations under this
paragraph shall survive the expiration or other termination of this Lease. Upon
expiration or termination of this Lease or of Tenant's Possession, Tenant shall
surrender all keys to the Premises or any other part of the Building and shall
make known to Landlord the combination of locks on all safes, cabinets and
vaults that may be located in the Premises.
b. HOLDING OVER. If Tenant remains in possession of the
Premises after the expiration or earlier termination of this Lease with the
express written consent of Landlord, Tenant's occupancy shall be a
month-to-month tenancy at a rent agreed upon by Landlord and Tenant, but in no
event less than the greater of (i) one hundred fifty percent (150%) of the
Monthly Rent, Tenant's Electrical Charge and Additional Rent payable under this
Lease during the last full month prior to the date of the expiration of this
Lease or (ii) the fair market rental (as reasonably determined by Landlord) for
the Premises. Except as provided in the preceding sentence, the month-to-month
tenancy shall be on the terms and conditions of this Lease, except that any
renewal options, expansion options, rights of first refusal, rights of first
negotiation or any other rights or options pertaining to additional space in the
Building contained in this Lease shall be deemed to have terminated and shall be
inapplicable thereto. Landlord's acceptance of rent after such holding over with
Landlord's written consent shall not result in any other tenancy or in a renewal
of the original term of this Lease. If Tenant remains in possession of the
Premises after the expiration or earlier termination of this Lease without
Landlord's consent, Tenant's continued possession shall be on the basis of a
tenancy at sufferance and Tenant shall pay as Monthly Rent during the holdover
period an amount equal to the greater of (i) one hundred fifty percent (150%) of
the fair market rental (as reasonably determined by Landlord) for the Premises
or (ii) two hundred percent (200%) of the Monthly Rent, Tenant's Electrical
Charge and Additional Rent payable under this Lease for the last full month
prior to the date of such expiration or termination.
c. INDEMNIFICATION. Tenant shall indemnify, defend and
hold Landlord harmless from and against all Claims incurred by or asserted
against Landlord and arising directly or indirectly from Tenant's failure to
timely surrender the Premises, including but not limited to (i) any rent payable
by or any loss, cost, or damages, including lost profits, claimed by any
prospective tenant of the Premises or any portion thereof, and (ii) Landlord's
damages as a result of such prospective tenant rescinding or refusing to enter
into the prospective lease of the Premises or any portion thereof by reason of
such failure to timely surrender the Premises.
21. SUBORDINATION AND ATTORNMENT. This Lease is expressly made
subject to and subordinate to any mortgage, deed of trust, ground lease,
underlying lease or like encumbrance
<PAGE>
affecting any part of the Real Property or any interest of Landlord therein
which is now existing or hereafter executed or recorded, any present or future
modification, amendment or supplement to any of the foregoing, and to any
advances made thereunder (any of the foregoing being a "Superior Interest")
without the necessity of any further documentation evidencing such
subordination. Notwithstanding the foregoing, Tenant shall, within ten (10) days
after Landlord's request, execute and deliver to Landlord a document evidencing
the subordination of this Lease to a particular Superior Interest. Tenant hereby
irrevocably appoints Landlord as Tenant's attorney-in-fact to execute and
deliver any such instrument in the name of Tenant if Tenant fails to do so
within such time. If the interest of Landlord in the Real Property or the
Building is transferred to any person ("Purchaser") pursuant to or in lieu of
proceedings for enforcement of any Superior Interest, then, at the option of the
Purchaser, Tenant shall immediately and automatically attorn to the Purchaser,
and this Lease shall continue in full force and effect as a direct lease between
the Purchaser and Tenant on the terms and conditions set forth herein.
22. FINANCING CONDITION. If any lender or ground lessor that intends to
acquire an interest in, or holds a mortgage, ground lease or deed of trust
encumbering any portion of the Real Property should require either the execution
by Tenant of an agreement requiring Tenant to send such lender written notice of
any default by Landlord under this Lease, giving such lender the right to cure
such default until such lender has completed foreclosure, and preventing Tenant
from terminating this Lease unless such default remains uncured after
foreclosure has been completed, and/or any modification of the agreements,
covenants, conditions or provisions of this Lease, then Tenant agrees that it
shall, within ten (10) days after Landlord's request, execute and deliver such
agreement and modify this Lease as required by such lender or ground lessor,
provided, however, that no such modification shall affect the length of the term
or increase the rent payable by Tenant under Paragraphs 5 and 7. Tenant
acknowledges and agrees that its failure to timely execute any such agreement or
modification required by such lender or ground lessor may cause Landlord serious
financial damage by causing the failure of a financing transaction and giving
Landlord all of its rights and remedies under Paragraph 25 below, including its
right to damages caused by the loss of such financing.
23. ENTRY BY LANDLORD. Landlord may, at any and all reasonable times,
and upon reasonable advance notice (provided that no advance notice need be
given if an emergency necessitates an immediate entry or prior to entry to
provide routine janitorial services), enter the Premises to (a) inspect the same
and to determine whether Tenant is in compliance with its obligations hereunder,
(b) supply janitorial and any other service Landlord is required to provide
hereunder, (c) show the Premises to prospective lenders, purchasers or tenants,
(d) post notices of nonresponsibility, and (e) alter, improve or repair the
Premises or any other portion of the Real Property or the Office Park. In
connection with any such alteration, improvement or repair, Landlord may erect
in the Premises or elsewhere in the Real Property or the Office Park scaffolding
and other structures reasonably required for the work to be performed. In no
event shall such entry or work entitle Tenant to an abatement of rent,
constitute an eviction of Tenant, constructive or otherwise, or impose upon
Landlord any liability whatsoever, including but not limited to liability for
consequential damages or loss of business or profits by Tenant; provided,
however, that Landlord shall use good faith efforts to cause all such work to be
done in such a manner as to cause as little interference to Tenant as reasonably
possible without incurring
<PAGE>
additional expense. Landlord shall at all times retain a key with which to
unlock all of the doors in the Premises, except Tenant's vaults and safes. If an
emergency necessitates immediate access to the Premises, Landlord may use
whatever force is necessary to enter the Premises and any such entry to the
Premises shall not constitute a forcible or unlawful entry into the Premises, a
detainer of the Premises, or an eviction of Tenant from the Premises, or any
portion thereof.
24. INSOLVENCY OR BANKRUPTCY. The occurrence of any of the following
shall Constitute an Event of Default under Paragraph 25 below:
1. Tenant ceases doing business as a going concern,
makes an assignment for the benefit of creditors, is adjudicated an insolvent,
files a petition (or files an answer admitting the material allegations of such
petition) seeking for Tenant any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar arrangement under any state or
federal bankruptcy or other law, or Tenant consents to or acquiesces in the
appointment, pursuant to any state or federal bankruptcy or other law, of a
trustee, receiver or liquidator for the Premises, for Tenant or for all or any
substantial part of Tenant's assets; or
2. Tenant fails within sixty (60) days after the
commencement of any proceedings against Tenant seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any state or federal bankruptcy or other Legal Requirement, to have
such proceedings dismissed, or Tenant fails, within sixty (60) days after an
appointment pursuant to any state or federal bankruptcy or other Legal
Requirement without Tenant's consent or acquiescence, of any trustee, receiver
or liquidator for the Premises, for Tenant or for all or any substantial part of
Tenant's assets, to have such appointment vacated; or
3. Tenant is unable, or admits in writing its inability,
to pay its debts as they mature; or
4. Tenant gives notice to any governmental body of its
insolvency or pending insolvency, or of its suspension or pending suspension of
operations.
In no event shall this Lease be assigned or assignable by reason of any
voluntary or involuntary bankruptcy, insolvency or reorganization proceedings,
nor shall any rights or privileges hereunder be an asset of Tenant, the trustee,
debtor-in-possession, or the debtor's estate in any bankruptcy, insolvency or
reorganization proceedings.
25. DEFAULT AND REMEDIES.
a. EVENTS OF DEFAULT. The occurrence of any of the
following shall constitute an "Event of Default" by Tenant:
1. Tenant fails to pay when due Monthly Rent,
Tenant's Electrical Charge, Additional Rent or any other rent due hereunder
(provided that the first occurrence of such a delinquency in any twelve
(12)-month period shall be an Event of Default only if Tenant fails to cure such
delinquency within five (5) days of written notice from Landlord thereof; or
<PAGE>
2. Tenant fails to occupy and use the Premises
for fifteen (15) consecutive days, which failure shall be deemed an abandonment
of the Premises by Tenant; or
3. Tenant fails to deliver any estoppel
certificate pursuant to Paragraph 29 below, subordination agreement pursuant to
Paragraph 21 above, or document required pursuant to Paragraph 22 above, within
the applicable period set forth therein; or
4. Tenant violates the bankruptcy and
insolvency provisions of Paragraph 24 above; or
5. Tenant makes or has made or furnishes or has
furnished any warranty, representation or statement to Landlord in connection
with this Lease, or any other agreement made by Tenant for the benefit of
Landlord, which is or was false or misleading in any material respect when made
or furnished; or
6. Tenant assigns this Lease or subleases any
portion of the Premises in violation of Paragraph 13 above; or
7. A default by Tenant occurs under any other
lease between Tenant and Landlord or any affiliate of Landlord, and Tenant fails
to cure such default within the applicable period set forth therein; or
8. Tenant fails to comply with any other
provision of this Lease in the manner and within the time required.
b. REMEDIES. Upon the occurrence of an Event of Default
Landlord shall have the following remedies, which shall not be exclusive but
shall be cumulative and shall be in addition to any other remedies now or
hereafter allowed by law:
1. Landlord may terminate this Lease at any
time by written notice to Tenant, and this Lease shall come to an end on the
date of such notice, as fully and completely as if such date were the date
herein originally fixed for the expiration of the term; and Tenant will then
quit and surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided. Tenant expressly acknowledges that in the absence of such
written notice from Landlord, no other act of Landlord, including, but not
limited to, its re-entry into the Premises, its efforts to relet the Premises,
its reletting of the Premises for Tenant's account, its storage of Tenant's
personal property and trade fixtures, its acceptance of keys to the Premises
from Tenant, its appointment of a receiver, or its exercise of any other rights
and remedies under this Paragraph 25 or otherwise at law, shall constitute an
acceptance of Tenant's surrender of the Premises or constitute a termination of
this Lease. Upon such termination of the Lease, Landlord may, without notice,
re-enter the Premises, either by force, summary proceedings, ejectment or
otherwise, and remove and dispossess Tenant and all other persons and any and
all property from the same, as if this Lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proceedings to that end
<PAGE>
Upon such termination of the Lease, Landlord shall be entitled to recover
damages from Tenant as provided in any applicable existing or future Legal
Requirement providing for recovery of damages for such breach, including but not
limited to the following:
(i) The reasonable cost of recovering the
Premises; plus
(ii) The reasonable cost of removing Tenant's
Alterations, trade fixtures and improvements; plus
(iii) All unpaid rent due or earned hereunder
prior to the date of termination, less the proceeds of any reletting or any
rental received from subtenants prior to the date of termination applied as
provided in Paragraph 25.b.2. below, together with interest at the Interest
Rate, on such sums from the date such rent is due and payable until the date of
the award of damages; plus
(iv) The amount of the rent payable by Tenant
hereunder, including Tenant's Electrical Charge under Paragraph 5 above and
Additional Rent under Paragraph I above, as reasonably estimated by Landlord,
from the date of termination until the date of the award of damages, together
with interest at the Interest Rate on such sums from the date such rent is due
and payable until the date of the award of damages; plus
(v) The amount of the rent payable by Tenant
hereunder, including Additional Rent under Paragraph 7 above, as reasonably
estimated by Landlord, for the remainder of the then term, after the date of the
award of damages, discounted at the discount rate published by the Federal
Reserve Bank of San Francisco for member banks at the time of the award Plus one
percent (1%); plus
(vi) Such other amounts in addition to or in lieu
of the foregoing as may be permitted from time to time by applicable law,
including without limitation any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom.
2. Landlord may continue this Lease in full force and
effect and may enforce all of its rights and remedies under this Lease,
including, but not limited to, the right to recover rent as it becomes due.
After the occurrence of an Event of Default, Landlord may enter the Premises
without terminating this Lease and sublet all or any part of the Premises for
Tenant's account to any person, for such term (which may be a period beyond the
remaining term of this Lease), at such rents and on such other terms and
conditions as Landlord deems advisable. In the event of any such subletting,
rents received by Landlord from such subletting shall be applied (i) first, to
the payment of the costs of maintaining, preserving, altering and preparing the
Premises for subletting, the other costs of subletting, including but not
limited to brokers' commissions, attorneys' fees and expenses of removal of
Tenant's personal property, trade fixtures and Alterations; (ii) second, to the
payment of rent then due and payable hereunder; (iii) third, to the payment of
future rent as the same may become due and payable hereunder; (iv) fourth, the
balance, if any, shall be paid to Tenant upon (but not before) expiration of the
term of this Lease.
<PAGE>
If the rents received by Landlord from such subletting, after application, as
provided above, are insufficient in any month to pay the rent due and payable
hereunder for such month, Tenant shall Pay such deficiency to Landlord monthly
upon demand. Notwithstanding any such subletting for Tenant's account without
termination, Landlord may at any time thereafter, by written notice to Tenant,
elect to terminate this Lease by virtue of a previous Event of Default.
3. During the continuance of an Event of Default,
Landlord may enter the Premises without terminating this Lease and remove all
Tenant's personal property, Alterations and trade fixtures from the Premises and
store them at Tenant's risk and expense. If Landlord removes such property from
the Premises and stores it at Tenant's risk and expense, and if Tenant fails to
pay the cost of such removal and storage after written demand therefor and/or to
pay any rent then due, then after the property has been stored for a period of
thirty (30) days or more Landlord may sell such property at public or private
sale, in the manner and at such times and places as Landlord deems commercially
reasonable following reasonable notice to Tenant of the time and place of such
sale. The proceeds of any such sale shall be applied first to the payment of the
expenses for removal and storage of the property, the preparation for and the
conducting of such sale, and for attorneys' fees and other legal expenses
incurred by Landlord in connection therewith, and the balance shall be applied
as provided in Paragraph 25.b.2. above.
Tenant hereby waives all claims for damages that may be caused by
Landlord's reentering and taking possession of the Premises or removing and
storing Tenant's personal property pursuant to this Paragraph 25, and Tenant
shall indemnify, defend and hold Landlord harmless from and against any and all
claims resulting from any such act. No reentry by Landlord shall constitute or
be construed as a forcible entry by Landlord.
4. Landlord may require Tenant to remove any and all
Alterations from the Premises or, if Tenant fails to do so within ten (10) days
after Landlord's request, Landlord may do so at Tenant's expense.
5. Landlord may cure the Event of Default at Tenant's
expense, it being understood that such performance shall not waive or cure the
subject Event of Default. If Landlord Pays any sum or incurs any expense in
curing the Event of Default, Tenant shall reimburse Landlord upon demand for the
amount of such payment or expense with interest at the Interest Rate from the
date the sum is paid or the expense is incurred until Landlord is reimbursed by
Tenant. Any amount due Landlord under this subsection shall constitute
additional rent hereunder.
c. WAIVER OF REDEMPTION. Tenant hereby waives, for itself and all
persons claiming by and under Tenant, all rights and privileges which it might
have under any present or future Legal Requirement to redeem the Premises or to
continue this Lease after being dispossessed or ejected from the Premises.
26. DAMAGE OR DESTRUCTION. If all or a part of the Premises or the Real
Property are damaged by fire or other casualty, and the damage can, in
Landlord's reasonable opinion, be repaired within sixty (60) days of the damage,
then Landlord shall repair the damage and this Lease shall remain in full force
and effect. If the repairs cannot, in Landlord's opinion, be made
<PAGE>
within the sixty (60)-day period, Landlord at its option exercised by written
notice to Tenant within the sixty (60)-day period, shall either (a) repair the
damage, in which event this Lease Shall continue in full force and effect, or
(b) terminate this Lease as of the date specified by Landlord in the notice,
which date shall be not less than thirty (30) days nor more than sixty (60) days
after the date such notice is given, and this Lease shall terminate on the date
specified in the notice.
If the fire or other casualty damages the Premises or the common areas of
the Real Property necessary for Tenant's use and occupancy of the Premises,
Tenant ceases to use any portion of the Premises as a result of such damage, and
the damage does not result from the negligence or willful Misconduct of Tenant
or any other Tenant Parties, then during the period the Premises or portion
thereof are rendered unusable by such damage and repair, Tenant's Monthly Rent,
Tenant's Electrical Charge and Additional Rent under Paragraphs 5 and 7 above
shall be proportionately reduced based upon the extent to which the damage and
repair prevents Tenant from conducting, and Tenant does not conduct, its
business at the Premises. Landlord shall not be obligated to repair or replace
any of Tenant's movable furniture, equipment, trade fixtures, and other personal
property, nor any Alterations installed in the Premises by Tenant, and no damage
to any of the foregoing shall entitle Tenant to any abatement, and Tenant shall,
at Tenant's sole cost and expense, repair and replace such items. All such
repair and replacement of Alterations shall be constructed in accordance with
Paragraph 9 above regarding Alterations.
A total destruction of the Building shall automatically from terminate this
Lease. In no event shall Tenant be entitled to any compensation or damages from
Landlord for loss of use of the whole or any part of the Premises or for any
inconvenience occasioned by any such destruction, rebuilding or restoration of
the Premises, the Building or access thereto, except for the rent abatement
expressly provided above. Tenant hereby waives any existing or future law
providing for termination of hiring upon destruction of the thing hired and/or
providing for repairs to and of premises.
27. EMINENT DOMAIN.
a. If all or any part of the Premises are taken by any
public or quasi-public authority under the power of eminent domain, or any
agreement in lieu thereof (a "taking"), this Lease shall terminate as to the
portion of the Premises taken effective as of the date of taking. If only a
portion of the Premises is taken, Landlord or Tenant may terminate this Lease as
to the remainder of the Premises upon written notice to the other party within
ninety (90) days after the taking; provided, however, that Tenant's right to
terminate this Lease is conditioned upon the remaining portion of the Premises
being of such size or configuration that such remaining portion of the Premises
is unusable or uneconomical for Tenant's business. Landlord shall be entitled to
all compensation, damages, income, rent awards and interest thereon whatsoever
which may be paid or made in connection with any taking and Tenant shall have no
claim against Landlord or any governmental authority for the value of any
unexpired term of this Lease or of any of the improvements or Alterations in the
Premises; provided, however, that the foregoing shall not prohibit Tenant from
prosecuting a separate claim against the taking authority for an amount
separately designated for Tenant's relocation expenses or the interruption of or
damage to Tenant's business or as compensation for Tenant's personal property,
trade fixtures,
<PAGE>
Alterations or other improvements paid for by Tenant so long as any award to
Tenant will not reduce the award to Landlord.
In the event of a partial taking of the Premises which does not result in a
termination of this Lease, the Monthly Rent, Tenant's Electrical Charge and
Additional Rent under Paragraphs 5 and 7 hereunder shall be equitably reduced.
If all or any part of the Real Property other than the Premises is taken,
Landlord may terminate this Lease upon written notice to Tenant given within
ninety (90) days after the date of taking.
b. Notwithstanding the foregoing, if all or any portion
of the Premises is taken for a period of time ending prior to the end of the
term of this Lease, this Lease shall remain in full force and effect and Tenant
shall continue to pay all rent and to perform all of its obligations under this
Lease; provided, however, that Tenant shall be entitled to all compensation,
damages, income, rent awards and interest thereon that is paid or made in
connection with such temporary taking of the Premises (or portion thereof),
except that any such compensation in excess of the rent or other amounts payable
to Landlord hereunder shall be promptly paid over to Landlord as received.
Landlord and Tenant each hereby waive the provisions of any applicable existing
or future Legal Requirement providing for, or allowing either party to petition
the courts of the state in which the Real Property is located for, a termination
of this Lease upon a partial taking of the Premises and/or the Building.
28. LANDLORD'S LIABILITY; SALE OF BUILDING. The term "Landlord," as
used in this Lease, shall mean only the owner or owners of the Real Property at
the time in question. Notwithstanding any other provision of this Lease, the
liability of Landlord for its obligations under this Lease is limited solely to
Landlord's interest in the Real Property as the same may from time to time be
encumbered, and no personal liability shall at any time be asserted or
enforceable against any other assets of Landlord or against the constituent
shareholders, partners or other owners of Landlord, or the directors, officers,
employees and agents of Landlord or such constituent shareholder, partner or
other owner, on account of any of Landlord's obligations or actions under this
Lease. In addition, in the event of any conveyance of title to the Real
Property, then the grantor or transferee shall be relieved of all liability with
respect to Landlord's obligations to be performed under this Lease after the
date of such conveyance. In no event shall Landlord be deemed to be in default
under this Lease unless Landlord fails to perform its obligations under this
Lease, Tenant delivers to Landlord written notice specifying the nature of
Landlord's alleged default, and Landlord fails to cure such default within
thirty (30) days following receipt of such notice (or, if the default cannot
reasonably be cured within such period, to commence action within such thirty
(30)-day period and proceed diligently thereafter to cure such default). Upon
any conveyance of title to the Real Property, the grantee or transferee shall be
deemed to have assumed Landlord's obligations to be performed under this Lease
from and after the date of such conveyance, subject to the limitations on
liability set forth above in this Paragraph 28. If Tenant provides Landlord with
any security for Tenant's performance of its obligations hereunder, and Landlord
transfers such security to the grantee or transferee of Landlord's interest in
the Real Property, Landlord shall be released from any further responsibility or
liability for such security. Any claim, defense or other right of Tenant arising
in connection with this Lease shall be barred unless Tenant files an action or
interposes a defense based thereon within one hundred eighty (180) days after
the date of the alleged event on which
<PAGE>
Tenant is bringing its claim, defense or right. Notwithstanding any other
provision of this Lease, but not in limitation of the provisions of Paragraph
14.a. above, Landlord shall not be liable for any consequential damages or
interruption or loss of business, income or profits, or claims of constructive
eviction, nor shall Landlord be liable for loss of or damage to artwork,
currency, jewelry, bullion, unique or valuable documents, securities or other
valuables, or for other property not in the nature of ordinary fixtures,
furnishings and equipment used in general administrative and executive office
activities and functions. Wherever in this Lease Tenant (a) releases Landlord
from any claim or liability, (b) waives or limits any right of Tenant to assert
any claim against Landlord or to seek recourse against any property of Landlord
or (c) agrees to indemnify Landlord against any matters, the relevant release,
waiver, limitation or indemnity shall run in favor of and apply to Landlord, the
constituent shareholders, partners or other owners of Landlord, and the
directors, officers, employees and agents of Landlord and each such constituent
shareholder, partner or other owner.
29. ESTOPPEL CERTIFICATES. At any time and from time to time, upon not
less than ten (10) days' prior notice from Landlord, Tenant shall execute,
acknowledge and deliver to Landlord a statement certifying the commencement date
of this Lease, stating that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force
and effect as modified and the date and nature of each such modification), that
Landlord is not in default under this Lease (or, if Landlord is in default,
specifying the nature of such default), that Tenant is not in default under this
Lease or if Tenant is in default, specifying the nature of such default), the
current amounts of and the dates to which the Monthly Rent, Tenant's Electrical
Charge and Additional Rent has been paid, and setting forth such other matters
as may be reasonably requested by Landlord. Any such statement may be
conclusively relied upon by a prospective purchaser of the Real Property or by a
lender obtaining a lien on the Real Property as security. If Tenant fails to
deliver such statement within the time required hereunder, such failure shall be
conclusive upon Tenant that (i) this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) there are no uncured
defaults in Landlord's performance of its obligations hereunder, (iii) not more
than one month's installment of Monthly Rent has been paid in advance, and (iv)
any other statements of fact included by Landlord in such statement are correct.
Tenant acknowledges and agrees that its failure to execute, such certificate may
cause Landlord serious financial damage by causing the failure of a sale or
financing transaction and giving Landlord all of its rights and remedies under
Paragraph 25 above, including its right to damages caused by the loss of such
sale or financing.
30. RIGHT OF LANDLORD TO PERFORM. If Tenant fails to make any payment
required hereunder (other than Monthly Rent, Tenant's Electrical Charge and
Additional Rent) or fails to perform any other of its obligations hereunder,
Landlord may, but shall not be obliged to, and without waiving any default of
Tenant or releasing Tenant from any obligations to Landlord hereunder, make any
such payment or perform any other such obligation on Tenant's behalf. All sums
so paid by Landlord and all necessary incidental costs in connection with the
performance by Landlord of an obligation of Tenant (together with interest
thereon from the date of such payment by Landlord until paid at the Interest
Rate) shall be payable by Tenant to Landlord upon demand, and Tenant's failure
to make such payment upon demand shall entitle Landlord to the same rights and
remedies provided Landlord in the event of non-payment of rent.
<PAGE>
31. LATE CHARGE. Tenant acknowledges that late payment of any
installment of Monthly Rent, Tenant's Electrical Charge or Additional Rent or
any other amount required under this Lease will cause Landlord to incur costs
not contemplated by this Lease and that the exact amount of such costs would be
extremely difficult and impracticable to fix. Such costs include, without
limitation, processing and accounting charges, late charges that may be imposed
on Landlord by the terms of any encumbrance or note secured by the Real Property
and the loss of the use of the delinquent funds. Therefore, if any installment
of Monthly Rent, Tenant's Electrical Charge or Additional Rent or any other
amount due from Tenant is not received when due, Tenant shall pay to Landlord on
demand, on account of the delinquent payment, an additional sum equal to the
greater of (i) five percent (5t) of the overdue amount, or (ii) $100.00, which
additional sum represents a fair and reasonable estimate of the costs that
Landlord will incur by reason of late payment by Tenant. Acceptance of any late
charge shall not constitute a waiver of Tenant's default with respect to the
overdue amount, nor prevent Landlord from exercising its right to collect
interest as provided above, rent, or any other damages, or from exercising any
of the other rights and remedies available to Landlord.
32. ATTORNEYS' FEES; WAIVER OF JURY TRIAL. In the event of any action
or proceeding between Landlord and Tenant (including an action or proceeding
between Landlord and the trustee or debtor in possession while Tenant is a
debtor in a proceeding under any bankruptcy law) to enforce any provision of
this Lease, the losing party shall pay to the prevailing party all costs and
expenses, including, without limitation, reasonable attorneys' fees and
expenses, incurred in such action and in any appeal in connection therewith by
such prevailing party. The "prevailing party" will be determined by the court
before whom the action was brought based upon an assessment of which party's
major arguments or positions taken in the suit or proceeding could fairly be
said to have prevailed over the other party's major arguments or positions on
major disputed issues in the court's decision. Notwithstanding the foregoing,
however, Landlord shall be deemed the prevailing party in any unlawful detainer
or other action or proceeding instituted by Landlord based upon any default or
alleged default of Tenant hereunder if (i) judgment is entered in favor of
Landlord, or (ii) prior to trial or judgment Tenant pays all or any portion of
the rent claimed by Landlord, vacates the Premises, or otherwise cures the
default claimed by Landlord.
If Landlord becomes involved in any litigation or dispute, threatened or
actual, by or against anyone not a party to this Lease, but arising by reason of
or related to any act or omission of Tenant or any Tenant Party, Tenant agrees
to pay Landlord's reasonable attorneys' fees and other costs incurred in
connection with the litigation or dispute, regardless of whether a lawsuit is
actually filed.
IF ANY ACTION OR PROCEEDING BETWEEN LANDLORD AND TENANT TO ENFORCE THE
PROVISIONS OF THIS LEASE (INCLUDING AN ACTION OR PROCEEDING BETWEEN LANDLORD AND
THE TRUSTEE OR DEBTOR IN POSSESSION WHILE TENANT IS A DEBTOR IN A PROCEEDING
UNDER ANY BANKRUPTCY LAW) PROCEEDS TO TRIAL, LANDLORD AND TENANT HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY IN SUCH TRIAL.
<PAGE>
33. WAIVER. No provisions of this Lease shall be deemed waived by
Landlord unless such waiver is in a writing signed by Landlord. The waiver by
Landlord of any breach of any provision of this Lease shall not be deemed a
waiver of any subsequent breach of the same or any other provision of this
Lease. No delay or omission in the exercise of any right or remedy of Landlord
upon any default by Tenant shall impair such right or remedy or be construed as
a waiver. Landlord's acceptance of any payments of rent due under this Lease
shall not be deemed a waiver of any default by Tenant under this Lease
(including Tenant's recurrent failure to timely pay rent) other than Tenant's
nonpayment of the accepted sums, and no endorsement or statement on any check or
accompanying any check or payment shall be deemed an accord and satisfaction.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
34. NOTICES. All notices and demands which may or are required to be
given by either party to the other hereunder shall be in writing. All notices
and demands by Landlord to Tenant shall be delivered personally or sent by
United States mail, postage prepaid, or by any reputable overnight or same-day
courier, addressed to Tenant at the Premises, or to such other place as Tenant
may from time to time designate by notice to Landlord hereunder. All notices and
demands by Tenant to Landlord shall be sent by United States mail, postage
prepaid, or by any reputable overnight or same-day courier, addressed to
Landlord in care of Shorenstain Company, L.P., 200 Park Avenue, New York, New
York 10166, Attention: Glenn A. Shannon, Executive Vice President, with a copy
to 555 California Street, 49th floor, San Francisco, California 94104,
Attention: Legal Department, or to such other place as Landlord may from time to
time designate by notice to Tenant hereunder. Notices delivered personally or
sent same-day courier will be effective immediately upon delivery to the
addressee at the designated address; notices sent by overnight courier will be
effective one (1) Business Day after acceptance by the service for delivery;
notices sent by mail will be effective two (2) Business Days after mailing. In
the event Tenant requests multiple notices hereunder, Tenant will be bound by
such notice from the earlier of the effective times of the multiple notices.
35. DELETED.
36. DEFINED TERMS AND MARGINAL HEADINGS. When required by the context
of this Lease, the singular includes the plural. If more than one person or
entity signs this Lease as Tenant, the obligations hereunder imposed upon Tenant
shall be joint and several, and the act of, written notice to or from, refund
to, or signature of, any Tenant signatory to this Lease (including without
limitation modifications of this Lease made by fewer than all such Tenant
signatories) shall bind every other Tenant signatory as though every other
Tenant signatory had so acted, or received or given the written notice or
refund, or signed. The headings and titles to the paragraphs of this Lease are
for convenience only and are not to be used to interpret or construe this Lease.
Wherever the term "including" or "includes" is used in this Lease it shall be
construed as if followed by the phrase "without limitation." The language in all
parts of this Lease shall in all cases be construed as a whole and in accordance
with its fair meaning and not construed for or against any party simply because
one party was the drafter thereof.
<PAGE>
37. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and
of each and all of its provisions, except as to the conditions relating to the
delivery of possession of the Premises to Tenant. This Lease shall be governed
by and construed in accordance with the laws of the Commonwealth of
Massachusetts.
38. SUCCESSORS. Subject to the provisions of Paragraphs 13 and 28
above, the covenants and conditions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors, executors, administrators and assigns.
39. ENTIRE AGREEMENT; MODIFICATIONS. This Lease (including any exhibit,
rider or attachment hereto) constitutes the entire agreement between Landlord
and Tenant with respect to Tenant's lease of the Premises. No provision of this
Lease may be amended or otherwise modified except by an agreement in writing
signed by the parties hereto. Neither Landlord nor Landlord's agents have made
any representations or warranties with respect to the Premises, the Building,
the Real Property, the Office Park or this Lease except as expressly set forth
herein, including without limitation any representations or warranties as to the
suitability or fitness of the Premises for the conduct of Tenant's business or
for any other purpose, nor has Landlord or its agents agreed to undertake any
alterations or construct any improvements to the Premises except those, if any,
expressly provided in this Lease, and no rights, easements or licenses shall be
acquired by Tenant by implication or otherwise unless expressly set forth
herein. Neither this Lease nor any memorandum hereof shall be recorded by
Tenant.
40. LIGHT AND AIR. Tenant agrees that no diminution of light, air or
view by any structure which may hereafter be erected (whether or not by
Landlord) shall entitle Tenant to any reduction of rent hereunder, result in any
liability of Landlord to Tenant, or in any other way affect this Lease.
41. NAME OF BUILDING. Tenant shall not use the name of the Building for
any purpose other than as the address of the business conducted by Tenant in the
Premises without the written consent of Landlord. Landlord reserves the right to
change the name of the Building at any time in its sole discretion by written
notice to Tenant and Landlord shall not be liable to Tenant for any loss, cost
or expense on account of any such change of name.
42. SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
43. AUTHORITY. If Tenant is a corporation, partnership, trust,
association or other entity, Tenant and each person executing this Lease on
behalf of Tenant, hereby covenants and warrants that (a) Tenant is duly
incorporated or otherwise established or formed and validly existing under the
laws of its state of incorporation, establishment or formation, (b) Tenant has
and is duly qualified to do business in the state in which the Real Property is
located, (c) Tenant has full corporate, partnership, trust, association or other
appropriate power and authority to enter into this Lease and to perform all
Tenant's obligations hereunder, and (d) each person (and all of
<PAGE>
the persons if more than one signs) signing this Lease on behalf of Tenant is
duly and validly authorized to do so.
44. NO OFFER. Submission of this instrument for examination and
signature by Tenant does not constitute an offer to lease or a reservation of or
option for lease, and is not effective as a lease or otherwise until execution
and delivery by both Landlord and Tenant.
45. REAL ESTATE BROKERS. Tenant represents and warrants that it has
negotiated this Lease directly with the real estate broker(s) identified in
Paragraph 2 and has not authorized or employed, or acted by implication to
authorize or to employ, any other real estate broker or salesman to act for
Tenant in connection with this Lease. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all Claims by any real estate broker
or salesman other than the real estate broker(s) identified in Paragraph 2 for a
commission, finder's fee or other compensation as a result of Tenant's entering
into this Lease.
46. CONSENTS AND APPROVALS. Wherever the consent, approval, judgment or
determination of Landlord is required or permitted under this Lease, Landlord
may exercise its sole discretion in granting or withholding such consent or
approval or in making such judgment or determination without reference to any
extrinsic standard of reasonableness, unless the provision providing for such
consent, approval, judgment or determination specifies that Landlord's consent
or approval is not to be unreasonably withheld, or that the standard for such
consent, approval, judgment or determination is to be reasonable, or otherwise
specifies the standards under which Landlord may withhold its consent. Whenever
Tenant requests Landlord to take any action or give any consent or approval,
Tenant shall reimburse Landlord for all of Landlord's costs incurred in
reviewing the proposed action or consent (whether or not Landlord consents to
any such proposed action), including without limitation reasonable attorneys' or
consultants' fees and expenses, within ten (10) days after Landlord's delivery
to Tenant of a statement of such costs. If it is determined that Landlord failed
to give its consent or approval where it was required to do so under this Lease,
Tenant's sole remedy will be an order of specific performance or mandatory
injunction of the Landlord's agreement to give its consent or approval. The
review and/or approval by Landlord of any item shall not impose upon Landlord
any liability for accuracy or sufficiency of any such item or the quality or
suitability of such item for its intended use. Any such review or approval is
for the sole purpose of protecting Landlord's interest in the Real Property, and
neither Tenant nor any Tenant Party nor any person or entity claiming by,
through or under Tenant, nor any other third party shall have any rights
hereunder by virtue of such review and/or approval by Landlord.
47. RESERVED RIGHTS. Landlord retains and shall have the rights set
forth below, exercisable without notice and without liability to Tenant for
damage or injury to property, person or business and without affecting an
eviction, constructive or actual, or disturbance of Tenant's use or possession
of the Premises or giving rise to any claim for rent abatement:
(a) To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building and its tenants, provided that such
exclusive right shall not operate to require Tenant to use or patronize such
business or service or to exclude Tenant from its use of the Premises expressly
permitted herein.
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(b) To perform, or cause or permit to be performed, at any time and
from time to time, including during Business Hours, construction in the common
areas and facilities or other leased areas in the Real Property or the Office
Park.
(c) To reduce, increase, enclose or otherwise change at any time and
from time to time the size, number, location, lay-out and nature of the common
areas and facilities and other tenancies and Premises in the Real Property or
the Office Park, to create additional rentable areas through use or enclosure of
common areas, and to dedicate the roads within the Office Park for public use.
48. FINANCIAL STATEMENTS. Upon submission of this Lease to Landlord and
at any time thereafter within thirty (30) days after Landlord's request
therefor, Tenant shall furnish to Landlord copies of true and accurate financial
statements reflecting Tenant's then current financial situation (including
without limitation balance sheets, statements of profit and loss, and changes in
financial condition), Tenant's most recent audited or certified annual financial
statements, and Tenant's federal income tax returns pertaining to Tenant's
business, and in addition shall cause to be furnished to Landlord similar
financial statements and tax returns for any guarantors) of this Lease. Tenant
agrees to deliver to any lender, prospective lender, purchaser or prospective
purchaser designated by Landlord such financial statements of Tenant as may be
reasonably requested by such lender or purchaser.
49. SUBSTITUTION OF PREMISES. Landlord reserves the right from time to
time to relocate Tenant to another part of the Building prior to or during the
term. From and after the date of any such relocation, the term "Premises" as
used herein shall mean the Substituted space in the Building, and Landlord and
Tenant shall execute an appropriate amendment to this Lease describing the new
Premises. If a relocation occurs after Tenant has occupied the Premises (or any
previously substituted Premises) then Landlord shall bear Tenant's reasonable
out-of-pocket expenses in moving Tenant's furnishings and equipment from the
occupied Premises to the Substituted Premises (including the cost of
installation in the substitute Premises of Tenant's then-existing telephone
system, but expressly excluding the cost of any new, additional or replacement
equipment).
50. NONDISCLOSURE OF LEASE TERMS. Tenant agrees that the terms of this
Lease are confidential and constitute proprietary information of Landlord, and
that disclosure of the terms hereof could adversely affect the ability of
Landlord to negotiate with other tenants. Tenant hereby agrees that Tenant and
its partners, officers, directors, employees, agents, real estate brokers and
sales persons and attorneys shall not disclose the terms of this Lease to any
other person without Landlord's prior written consent, except to any Accountants
of Tenant in connection with the preparation of Tenant's financial statements or
tax returns, to an Assignee of this Lease or subleases of the Premises, to an
entity or person to whom disclosure is required by applicable law or in
connection with any action brought to enforce this Lease, or as necessary in
connection with any financing or securities offering of Tenant.
<PAGE>
THIS LEASE IS EXECUTED by Landlord and Tenant as of the date set forth at
the top of page 1 hereof.
SHORENSTEIN MANAGEMENT, INC., LIONBRIDGE TECHNOLOGIES , INC.,
As Trustee of SRI Two Realty Trust a Delaware corporation
By By
-------------------------------- -----------------------------------
Glenn A. Shannon
Executive Vice President Name:
--------------------------------
Landlord Title:
Tenant
<PAGE>
EXHIBIT A
[site map]
950 Winter Street
<PAGE>
EXHIBIT B
RULES AND REGULATIONS
Bay Colony Corporate Center
Waltham, Massachusetts
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside or
inside of the Building or any part of the Premises visible from the exterior of
the Premises without the prior written consent of Landlord, which consent may be
withheld in Landlord's sole discretion. Landlord shall have the right to remove,
at Tenant's expense and without notice to Tenant, any such sign, placard,
picture, advertisement, name or notice that has not been approved by Landlord.
All approved signs or lettering on doors and Walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person approved of
by Landlord.
If Landlord notifies Tenant in writing that Landlord objects to any
curtains, blinds, shades or screens attached to or hung in or used in connection
with any window or door of the Premises, such use of such curtains, blinds,
shades or screens shall be removed immediately by Tenant. No awning shall be
permitted on any part of the Premises.
2. No ice, drinking water, towel, barbering or bootblacking, shoeshining
or repair services, or other similar services shall be provided to the Premises,
except from persons authorized by Landlord and at the hours and under
regulations fixed by Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to exclude any other names therefrom.
4. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the Tenant Parties or used by Tenant
for any purpose other than for ingress to and egress from its Premises.
The halls, passages, exits, entrances, elevators, stairways, balconies
and roof are not for the use of the general public and Landlord shall in all
cases retain the right to control and prevent access thereto by all persons
whose presence in the judgment of Landlord shall be prejudicial to the safety,
character, reputation and interests of the Building and its tenants. No tenant
and no employees or invitees of any tenant shall go upon the roof of the
Building.
5. Tenant shall not alter any lock or install any new or additional locks
or any bolts on any interior or exterior door of the Premises without the prior
written consent of Landlord.
6. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any
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kind whatsoever shall be thrown therein and the expense of any breakage,
stoppage or damage resulting from the violation of this rule shall be borne by
the tenant who, or whose employees or invitees, shall have caused it.
7. Tenant shall not overload the floor of the Premises or mark, drive
nails, screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof.
8. No furniture, freight or equipment of any kind shall be brought into
the Building without the consent of Landlord and all moving of the same into or
out of the Building shall be done at such time and in such manner as Landlord
shall designate. Landlord shall have the right to prescribe the right size and
position of all safes and other heavy equipment brought into the Building and
also the times and manner of moving the same in and out of the Building. Sofas
or other heavy objects shall, if considered necessary by Landlord, stand on a
platform of such thickness as is necessary to properly distribute the weight.
Landlord will not be responsible for loss of or damage to any such safe or
property from any cause, and all damage done to the Building by moving or
maintaining any such safe or other property shall be repaired at the expense of
Tenant. The elevator designated for freight by Landlord shall be available for
use by all tenants in the Building during the hours and pursuant to such
procedures as Landlord may determine from time to time. The persons employed to
move Tenant's equipment, material, furniture or other property in or out of the
Building must be acceptable to Landlord. The moving company must be a locally
recognized professional mover, whose primary business is the performing of
relocation services, and must be bonded and fully insured. In no event shall
Tenant employ any person or company whose presence may give rise to a labor or
other disturbance in the Real Property or the Office Park. A certificate or
other verification of such insurance must be received and approved by Landlord
prior to the start of any moving operations. insurance must be sufficient in
Landlord's sole opinion, to cover all personal liability, theft or damage to the
Real Property and the Office Park, including, but not limited to, floor
coverings, doors, halls, elevators, stairs, foliage and landscaping. Special
care must be taken to prevent damage to foliage and landscaping during adverse
weather. All moving operations shall be conducted at such times and in such a
manner as Landlord shall direct, and all moving shall take place during
non-business hours unless Landlord agrees in writing otherwise.
9. Tenant shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning the Premises, unless otherwise agreed to by
Landlord. Except with the written consent of Landlord, no person or persons
other than those approved by Landlord shall be permitted to enter the Building
for the purpose of cleaning the Building or the Premises. Tenant shall not cause
any unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness.
10. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises or the
<PAGE>
Building. In no event shall Tenant keep, use, or permit to be used in the
Premises or the Building any guns, firearm, explosive devices or ammunition.
11. No cooking shall be done or permitted by Tenant in the Premises,
nor shall the Premises be used for the storage of merchandise, for washing
clothes, for lodging, or for any improper, objectionable or immoral purposes.
12. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline, or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Landlord.
13. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced into the Premises and the Building. No
boring or cutting for wires will be allowed without the prior consent of
Landlord. The location of telephones, call boxes and other office equipment
affixed to the Premises shall be subject to the prior approval of Landlord.
14. Upon the expiration or earlier termination of the Lease, Tenant shall
deliver to Landlord the keys of offices, rooms and toilet rooms which have been
furnished by Landlord to Tenant and any copies of such keys which Tenant has
made. In the event Tenant has lost any keys furnished by Landlord, Tenant shall
pay Landlord for such keys.
15. Tenant shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises, except
to the extent and in the manner approved in advance by Landlord. The expense of
repairing any damage resulting from a violation of this rule or removal of any
floor covering shall be borne by the tenant by whom or by whose contractors,
employees or invitees, the damage shall have been caused.
16. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except between
such hours and in such elevators as shall be designated by Landlord, which
elevator usage shall be subject to the Building's customary charge therefor as
established from time to time by Landlord.
17. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 6:00 P.M. and 8:00 A.M., access to the Building, or to the halls,
corridors, elevators or stairways in the Building, or to the Premises may be
refused unless the person seeking access is known to the person or employee of
the Building in charge and has a pass or is properly identified. Landlord shall
in no case be liable for damages for any error with regard to the admission to
or exclusion from the Building of any person. In case of invasion, mob, riot,
public excitement, or other commotion, Landlord reserves the right to prevent
access to the Building during the continuance of the same by closing the doors
or otherwise, for the safety of the tenants and protection of property in the
Building.
18. Tenant shall be responsible for insuring that the doors of the
Premises are closed and securely locked before leaving the Building and must
observe strict care and caution that all water faucets or water apparatus are
entirely shut off before Tenant or Tenant's employees leave the Building, and
that all electricity, gas or air shall likewise be carefully shut off, so as to
<PAGE>
prevent waste or damage, and for any default or carelessness Tenant shall make
good all injuries sustained by other tenants or occupants of the Building or
Landlord. Landlord shall not be responsible to Tenant for loss of property on
the Premises, however occurring, or for any damage to the property of Tenant
caused by the employees or independent contractors of Landlord or by any other
person.
19. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
20. The requirements of any tenant will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties unless under
special instructions from Landlord, and no employee will admit any person
(tenant or otherwise to any office without specific instructions from Landlord.
21. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the prior written consent of
Landlord.
22. Subject to Tenant's right of access to the Premises in accordance with
Building security procedures, Landlord reserves the right to close and keep
locked all entrance and exit doors of the Building on Saturdays, Sundays and
legal holidays and on other days between the hours of 6:00 P.M. and 8:00 A.M.,
and during such further hours as Landlord may deem advisable for the adequate
protection of the Building and the property of its tenants.
23. Neither Landlord nor any operator of the parking areas within the Real
Property and the Office Park, as the same are designated and modified by
Landlord, in its sole discretion, from time to time (the "Parking Areas") shall
be liable for loss of or damage to any vehicle or any contents of such vehicle
or accessories to any such vehicle, or any property left in any of the Parking
Areas, resulting from fire, theft, vandalism, accident, conduct or other users
of the Parking Areas and other persons, or any other casualty or cause. Further,
tenants understand and agree that: (a) Landlord shall not be obligated to
provide any traffic control, security protection or operator for the Parking
Areas; (b) tenants use the Parking Areas at their own risk; and (c) Landlord
shall not be liable for personal injury or death, or theft, loss of or damage to
property sustained in the Parking Areas.
24. Tenants (including the employees, agents, invitees, and visitors of
tenants) shall use the Parking Areas solely for the purpose of parking passenger
model cars, small vans and small trucks and shall comply in all respects with
any rules and regulations that may be promulgated by Landlord from time to time
with respect to the Parking Areas. The Parking Areas may be used by Tenants, or
their agents or employees, for occasional overnight parking of vehicles. Tenants
shall ensure that any vehicle parked in any of the parking spaces shall be kept
in proper repair and shall not leak excessive amounts of oil or grease or any
amount of gasoline.
25. Tenant's right to use the Parking Areas shall be in common with other
tenants of the Real Property and the Office Park and with other parties
permitted by Landlord to use the
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Parking Areas. Landlord reserves the right to assign and reassign, from time to
time, particular parking spaces within the Parking Areas for use by persons
selected by Landlord provided that each tenant's rights under its respective
lease are preserved. Landlord shall not be liable to any tenant for any
unavailability of such tenant's designated spaces, if any, nor shall any
unavailability entitle tenants to any refund, deduction, or allowance. Tenants
shall not park in any numbered space or any space designated as: RESERVED,
HANDICAPPED, VISITORS ONLY, or LIMITED TIME PARKING (or similarly designated).
26. If the Parking Areas are damaged or destroyed, or if the use of the
Parking Areas is limited or prohibited by any governmental authority, or the use
or operation of the Parking Areas is limited or prevented by strikes or other
labor difficulties or other causes beyond Landlord's control, the tenants'
inability to use their parking spaces shall not subject Landlord or any operator
of the Parking Areas to any liability to such tenants and shall not relieve the
tenants of any of their obligations under their respective leases.